The Appeal Court in Kisumu has allowed Kibos cane miller to introduce new evidence to contest a court order to close the factory over pollution claims.
Kibos Sugar and Allied Industries Limited had earlier dismissed river pollution claims, saying it had complied with regulations and its operations were approved by Nema.
It says two documents support Kibos' argument to stay open.
One was issued by the National Environment Management Authority (Nema). The other is a report by the Kisumu assembly committee on Water, Environment and Natural Resources. Both give the company a clean bill of health, Kibos said.
The ruling to allow the documents as evidence was delivered on Wednesday by Justice Milton Makhandia on behalf of a three-judge bench.
Makhandia said the decision was taken in the interests of justice because Kibos could not have been aware of and procured the documents in the course of the trial.
"The High Court gave direction to file submissions by March 29, 2019, while the Nema report was given on April 18 and its forwarding letter addressed to the clerk of the National Assembly in Nairobi and not the applicant," he stated.
The two documents are expected to be introduced by way of affidavits in five days.
In July the Environmental Court in Kisumu had ordered the factory closed for discharging raw effluent into River Kibos. It said the company’s environmental impact assessment licence was acquired illegally.
Justice Stephen Kibunja issued a permanent injunction against company operations. He said the company must first carry out an environmental impact assessment and submit a report to Nema for approval and a fresh licence.
Three Kisumu East residents, Benson Adega, Eric Ochieng’ and Bether Opiyo, sued the sugar factory in October last year.
For several years, residents had complained of pollution. They get water for domestic use and said they live in fear of disease.
Lawyer Tom Ojienda said the two documents show his client had complied with environmental regulations and 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," he said.
The application was supported by lawyer James Orengo, who represented the Kisumu government.
Introducing new evidence was opposed by lawyer Fred Ngatia, who said it was suspicious the county assembly committee toured the premises days after the trial court concluded the case and gave its orders.
(Edited by V. Graham)