Win for Kibos Distillers as pollution appeal dismissed

The Supreme Court has dismissed an appeal by three residents of Kajulu in Kisumu County who complained that Kibos Distillers was polluting the environment.

The Judges of the apex court upheld the objection by Kibos Distillers, Kibos Power and Kibos Sugar and Allied Industries that there was nothing in the petition, requiring the interpretation or application of the Constitution.

The Court by Chief Justice David Maraga agreed that the appeal by the residents does not raise issues of law or jurisprudence, which deserves to be addressed by the Supreme Court.

“The petition is hereby struck out save that, noting the nature of the matter, the Petitioners are at liberty to pursue their claims at the appropriate forum, taking guidance from this Judgment and that of the Court of Appeal,” the court said.

Early this year, the Court of Appeal overturned the decision by Justice Stephen Kibunja of the Environment and Land Court (ELC), directing the factory owners to get a new Environment Impact Assessments licences, saying the court did not have the power to hear the petition.

CJ Maraga, DCJ Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola however said the appellate court should have remitted back the matter to the appropriate institutions for deliberations, after finding the ELC court had no jurisdiction to hear the matter.

“It would seem that the ELC had failed to appreciate that there were properly constituted institutions that were mandated to hear and determine the issues, but instead chose to arrogate to itself the jurisdiction to hear and determine all the issues raised in the petition,” the Supreme Court judges said.

Mr Bernard Ambuti Adega, Erick Ochieng and Bether Atieno Opiyo successfully argued before Justice Kibunja that the factories in Muhoroni sub-county, were discharging raw effluent into the environment including the three surrounding rivers. The Judge had ruled that the structures were erected without EIA study report was approved.

by the National Environment Management Authority (NEMA).

But the company, through Senior Counsel Tom Ojienda moved to the Court of Appeal and a bench of three judges overturned the decision. The Appellate court ruled that the matter should have been handled by the National Environmental Tribunal and the National Environmental Complaints Committee.

The residents then sought to move to the Supreme Court an application which was rejected.