Kibos Sugar Company got a reprieve after the appellant court in Kisumu dismissed the High Court ruling that invalidated its licence.
The privately-owned sugar factory had has appealed the decision by the High Court that the company's Environmental Impact Assessment license was acquired illegally.
Justice Stephen Kibunja in July last year ruled that the company must first carry out an EIA survey and submit the report to the National Environment Management Authority for approval for a fresh licence.
The judge also ordered the defendants to demolish unapproved structures on land LR No 654/23 and 11273 in Kibos, to restore the environment to its original status.
“Should they fail to obtain fresh EIA licences in 120 days and should they fail to comply with the restoration order, the petitioners are hereby authorised to appoint an auctioneer to carry out the restoration order and recover the costs from the first to the third respondent,” Kibunja said.
However, on Friday, Justices Philip Kiage, Asike Makhandia and the late Otieno Odek ruled in favour of the company that had earlier indicated that it would relocate to a neighbouring country over 'a volatile working environment'.
The judges stated that there was no evidence the company was polluting the environment nor that residents who petitioned the miller at the lower courts suffered any damages as a result of pollution.
They, however, directed the firm to continue with the annual environmental audit of its projects and activities in compliance.
The verdict was read by Justice Daniel Musinga.
During an appeal hearing in October, the firm–through its lawyers–told judges it was given a clean bill of health by Nema and the House committee.
Lawyer Tom Ojienda said the two documents show his client had complied with environmental regulations and that no licence was acquired illegally.
“We want to introduce additional fresh evidence in the case — a report by the two entities which was not ready by the time the trial court was making its ruling, hence the filling of this application,” he said.
The firm's application was supported by lawyer James Orengo, who represented the Kisumu county government.
It was, however, opposed by lawyer Fred Ngatia, who said it was suspicious that the county assembly committee toured the premises days after the trial court concluded the case and gave its orders.
Three Kisumu East residents–Benson Adega, Eric Ochieng’ and Bether Opiyo–sued the sugar factory in October last year.
Kibos Sugar & Allied Industries Ltd was listed as the first respondent, Kibos Power Limited as the second, Kibos Distillers Limited as the third, Nema (fourth) and the Kisumu government (fifth).
For several years, residents had complained of pollution. They get water for their domestic use from the river. They said their right to a clean environment had been breached citing fear of disease outbreaks.
Edited by R.Wamochie