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Blow for Nanyuki hotel in licence row with Nema

CASE

Most of the succession battles pending in courts arise out of intestacy. FILE PHOTO | NMG

Summary

  • The hotel, Misty Mountain Lodge at the foothills of Mount Kenya, also wanted the court to restrain Nema from arresting or preferring any criminal proceedings against it, its agents, servants or employees over the issue.
  • But Justice Mary Oundo ruled that the hotel initiated the judicial review proceedings prematurely and in violation of the provisions of the Environment Management and Coordination Act (EMCA) and the Fair Administrative Action Act.

A holiday hotel in Nanyuki has lost its bid to stop the National Environment and Management Authority (Nema) from demanding an effluent discharge licence.

The hotel, Misty Mountain Lodge at the foothills of Mount Kenya, also wanted the court to restrain Nema from arresting or preferring any criminal proceedings against it, its agents, servants or employees over the issue.

But Justice Mary Oundo ruled that the hotel initiated the judicial review proceedings prematurely and in violation of the provisions of the Environment Management and Coordination Act (EMCA) and the Fair Administrative Action Act.

The judge noted that instead of the hotel complying with a notice to improve its premises (Improvement Notice) issued by Nema on June 26, 2019 it had instead run to court.

It was after the hotel's failure to comply with the notice that Nema instigated the arrest and prosecution of the hotel's agent Mr Dennis Mathenge.

Justice Oundo said before seeking court's redress the hotel ought to have channelled its grievance to the National Environment Tribunal which generally has the mandate to hear complaints over the issuance of licences by Nema.

"As it is to be noted by the provisions of Section 9 (2) of the Fair Administrative Action Act that this court is barred against exercising Judicial Review jurisdiction unless available statutory appeal and review mechanisms have been exhausted," said the judge.

The hotel claimed that sometime in June, 2019 in the cause of the construction, Nema started sending its officers and using police to harass workers of the hotel on allegations that it had not applied for licences.