Tawaqal Quarry Producers Co-operative Society Limited v Tahlil Construction and General Trading Company Ltd ; National Environment Management Authority & another [2020] eKLR Case Summary

Court
Environment and Land Court at Garissa
Category
Civil
Judge(s)
E.C. Cherono
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Tawaqal Quarry Producers Co-operative Society Limited v Tahlil Construction and General Trading Company Ltd & 3 others; National Environment Management Authority & another (Interested Parties) [2020] eKLR


1. Case Information:
- Name of the Case: TAWAQAL QUARRY PRODUCERS CO-OPERATIVE SOCIETY LIMITED v. TAHLIL CONSTRUCTION AND GENERAL TRADING COMPANY LTD & Others
- Case Number: Petition No. 2 of 2020
- Court: Environment and Land Court at Garissa
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): E.C. Cherono
- Country: Kenya

2. Questions Presented:
- Whether the application for review is merited.
- Whether the circumstances for an application for injunction/status quo still subsist.
- Who will bear the costs of the application?

3. Facts of the Case:
The petitioner, TAWAQAL QUARRY PRODUCERS CO-OPERATIVE SOCIETY LIMITED, initiated the case against multiple respondents including TAHLIL CONSTRUCTION AND GENERAL TRADING COMPANY LTD and individuals associated with the quarrying business. The case arose from a dispute regarding the legality of quarrying activities conducted by the respondents, who claimed to have complied with all necessary regulatory and licensing requirements. The petitioner alleged that the respondents’ licenses were obtained unlawfully, thus questioning the validity of the quarrying operations.

4. Procedural History:
The case progressed through the court system, beginning with a Notice of Motion filed by the petitioner on 11th May 2020. On 8th June 2020, the court ordered that the status quo be maintained pending the hearing of the application. On 23rd June 2020, the respondents filed an application seeking a review of the court's previous orders, arguing compliance with regulatory requirements and claiming that the petition was devoid of a cause of action. The court ultimately dismissed the application for review on 26th October 2020, ruling that the respondents did not meet the necessary legal threshold for such a review.

5. Analysis:
- Rules: The court considered Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, which govern the grounds and procedures for reviewing court orders. The rules stipulate that a review can be sought on grounds of new evidence or error apparent on the record.
- Case Law: The court referenced several cases, including *Flora Wasike v. Destimo Wamboka* and *Hiram v. Kassam*, which establish that consent orders can only be set aside under specific conditions, such as fraud or collusion. The court emphasized that the applicants did not provide sufficient grounds for setting aside the consent order.
- Application: The court found that the respondents' claims regarding compliance with licensing requirements did not constitute new evidence justifying a review. The issues raised by the respondents were already part of the pending petition and could not be determined in the review application. The court concluded that the application for review was thus lacking in merit.

6. Conclusion:
The court dismissed the application for review, affirming that the respondents failed to demonstrate a valid basis for altering the previous consent order. This ruling underscored the importance of adhering to procedural requirements and the necessity of addressing substantive issues in the appropriate forum.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The Environment and Land Court ruled against the respondents in *TAWAQAL QUARRY PRODUCERS CO-OPERATIVE SOCIETY LIMITED v. TAHLIL CONSTRUCTION AND GENERAL TRADING COMPANY LTD & Others*, dismissing their application for review of a consent order. The decision reinforced the principle that consent orders are binding unless challenged under specific legal grounds. This case highlights the significance of compliance with environmental and regulatory laws in the context of quarrying operations in Kenya.

Citations:
- Civil Procedure Act, Section 80
- Civil Procedure Rules, Order 45 Rule 1
- *Flora Wasike v. Destimo Wamboka* (1982 – 88) 1 K.A.R 626
- *Hiram v. Kassam* (1952) 19 E.A.E.A. 131

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