Bid to block Mumias project flops

By Paul Gitau

The High Court in Malindi has thrown out on technical grounds a case by pastoralists who wanted to block a multi-billion shilling sugar factory project in Tana River District.

The Sh24 billion project is funded by Mumias Sugar Company and Tana and Athi River Development Authority (Tarda).

Malindi High Court Judge Justice Hellen Omondi made the ruling last Friday after a preliminary objection by Prof Githu Muigai representing the National Environment Management Authority, Mumias Sugar, Tana and Athi Rivers Development Authority and the Commissioner of Lands.

The plaintiffs, who consisted the pastoralists and a group of three environmental organisations, argued the project would take away grazing land and adversely affect the fragile ecosystem.

Prof Muigai noted that the entire proceeding had violated the mandatory provision of Order 53 Civil Procedure Rules that all facts must be stated in the affidavit.

"It is wrong to state all facts in the statement then verify them by an affidavit," he said.

"I therefore pray that the motion be dismissed on Order 53 when a statement or affidavit is found to be faulty," he noted.

However, an environmentalist Dr George Wamukoya representing the applicants argued that the purported defect raised would prejudice the rights and questions raised by the applicants "who were speaking on behalf of the public".

The judge said it had been "established undoubtedly that all evidential facts should be set out in an affidavit".

Justice Omondi said failing to file an affidavit setting out the facts renders the application incompetent for want of evidence. "I therefore find that there is merit in the preliminary objection raised and the same is upheld on the application and is therefore struck out for failure to comply with Order 53 rule 1 (2). The case was dismissed with costs.