Court allows new evidence in Kibos Sugar shutdown case

Kibos Sugar and Allied Industries Ltd has been allowed to adduce additional evidence over the shutdown of the factory over alleged pollution.

The ruling by the Court of Appeal in Kisumu gave the miller a nod to present reports of the National Environment Management Authority (Nema) and Kisumu county assembly committee of water, environment and natural resources.

Justice Milton Makhandia, who read the verdict on behalf of a three-judge Bench, said the decision was taken in the interest of justice.

“We are satisfied that the applicants could not have been aware and procure the reports in the course of the trial,” he said on Wednesday.

He pointed out that the High Court gave a direction to file submissions by March 29, 2019 while Nema report was given on April 18, 2019. According to Justice Makhandia, the Nema report and its forwarding letter was addressed to the clerk of the National Assembly in Nairobi and not the applicant.

“The applicant could not be reasonably have been expected to have knowledge of existence of the Nema report or to have received the report on April 18,” he said.

He also noted that the county assembly report dated July 2019 signed by majority of committee members came up after submissions by the applicants before the trial court.

The additional evidence is expected to be adduced by way of an affidavit and the same be filed as supplementary record of appeal within the next five days, said Justice Makhandia.

Kibos Sugar, through lawyer Tom Ojienda, last Wednesday argued that the two reports are critical to their case.

“The two entities gave Kibos Sugar, Kibos Power and Kibos Distillers factories a clean bill of health and found that they were in compliance with environmental regulations,” he said.

Justice Stephen Kibunja while ordering the closure of Kibos Sugar, Kibos Power and Kibos Distillers factories on July 31 raised concerns of environmental pollution as well as illegal and unprocedural acquisition of Environmental Impact Assessment licences.

Mr Fred Ngatia who appeared for three petitioners (Benson Adega, Erick Ochieng’ and Bether Opiyo) opposed the application, saying the licence was issued in a clandestine manner.