Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 84 of 2010

Republic v National Environmental Management Authority [2011] KECA 412 (KLR)

Court of Appeal of Kenya
15 July 2011
ROR.S.C. OmoloJOJ.W. Onyango OtienoAVAlnashir Visram
5,530 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that businesses must use the National Environment Tribunal's appeal process first, and cannot bypass it through judicial review without exceptional justification.

What this practically means

#

Executive summary

#
Sound Equipment Limited, the lessee of land in Lower Kabete, Nairobi, obtained City Council approval for ten town houses, accepted conditions imposed by NEMA, and was granted an Environmental Impact Assessment Licence on 28th March, 2008 under the Environment Management and Coordination Act, 1999. On 20th January, 2009 NEMA issued an environmental restoration order directing the company to cease construction and undertake a fresh EIA, citing unforeseen environmental threats to the Mathare River. The company moved to the High Court by judicial review for certiorari and prohibition rather than appealing to the National Environment Tribunal under section 129 of the Act. Wendoh, J dismissed the motion, holding that although an alternative remedy is not an automatic bar to judicial review, the applicant failed to disclose and justify bypassing the specialised statutory appeal process. The Court of Appeal dismissed the appeal. It held that public law issues are not litigable only through judicial review; where Parliament provides a statutory appeal, judicial review lies only in exceptional circumstances; disclosure of the alternative remedy does not relieve the applicant of the burden of demonstrating judicial review's superiority; and no conclusive determination can be made at the leave stage. The Court broadly agreed with the trial judge on the remaining grounds, stressing public participation in environmental matters and that environmental injury cannot be measured in monetary terms alone.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the issues raised by the appellant, being matters of public law, were suitable only for judicial review rather than the statutory appeal to the National Environment Tribunal
  2. 2.Whether the appellant disclosed the existence of the alternative statutory remedy of appeal to the Tribunal
  3. 3.Whether the appellant was obliged to demonstrate, and whether it did demonstrate, that judicial review was more suitable, effective or convenient than the statutory appeal process
  4. 4.Whether the suitability of judicial review was conclusively determined at the leave stage and could not be reopened at the substantive hearing
  5. 5.Whether NEMA abused its power, breached the appellant's legitimate expectation, or failed to give reasons for its restoration order

Key legal issues

#
01

Whether public law issues are only amenable to judicial review

Holding

No. A specialist statutory tribunal with jurisdiction over the subject matter may be the appropriate forum even where the issues raise public law questions.

Reasoning

The Court accepted that the appellant's complaints (abuse of power, legitimate expectation, failure to give reasons) were public law matters. However, the National Environment Tribunal is itself a public body created by statute to administer the appeal process under EMCA. The trial judge was entitled to weigh the speed and expertise of the Tribunal against the High Court and conclude the appeal route was preferable.

p. 9
02

Whether disclosure of an alternative remedy suffices to entitle an applicant to judicial review

Holding

No. Disclosure is necessary but not sufficient; the applicant must still demonstrate that judicial review is more suitable, effective or convenient than the statutory appeal.

Reasoning

The Court agreed with counsel that attaching the Director-General's letter, which notified the appellant of the right of appeal to the Tribunal, amounted to disclosure of the alternative remedy. But the trial judge went further to consider whether exceptional circumstances justified bypassing the appeal, and the appellant failed to demonstrate any such circumstances.

p. 9
03

Whether the leave stage conclusively determines the suitability of judicial review

Holding

No. The leave stage only assesses whether a prima facie case warrants the granting of leave; findings there are not binding at the substantive hearing.

Reasoning

The appellant argued that because suitability of judicial review had been considered when leave was granted, the trial judge could not reopen it. The Court rejected this, holding that as a matter of common sense no conclusive and binding determination can be made at the leave stage, which is merely a filter for arguable cases.

p. 10
04

Whether NEMA abused its power or breached the appellant's legitimate expectation

Holding

No. NEMA's restoration order was a legitimate exercise of statutory power, and the fresh EIA process it required provided an opportunity for proper public participation.

Reasoning

The Court broadly agreed with the trial judge's conclusions on the remaining issues. The appellant was aware of serious complaints, including from the Water Resources Management Authority concerning pollution of the Mathare River. The order directing a fresh EIA with public participation was a lawful response, and environmental injury cannot be measured merely in financial terms.

p. 10

Legal principles established

#
  • Where Parliament has provided a statutory appeal procedure, judicial review will only be granted in exceptional circumstances, and the applicant bears the burden of demonstrating that judicial review is more suitable, effective and convenient than the statutory appeal
  • The existence of an alternative remedy is not, by itself, an automatic bar to judicial review, but mere disclosure of the alternative remedy does not relieve the applicant of the burden of justifying the choice of judicial review
  • No conclusive or binding determination can be made on any point at the leave stage of judicial review proceedings; the leave stage merely tests whether the applicant has a prima facie case
  • A matter falling within the domain of public law is not litigable only through judicial review; a specialist statutory tribunal may be the more appropriate forum
  • Environmental issues concern the public at large and statutory public participation in environmental impact assessment must be ensured, irrespective of the financial expenditure incurred by a project proponent

Court orders

#
  1. 1.The appeal be and is hereby dismissed
  2. 2.The appellant to pay the costs of the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

RO
majority

Wrote the judgment

JO
majority

Wrote the judgment

AV
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application ELC. 7 of 2009
Jurisdiction invoked
Appeal from the High Court in judicial review proceedings under Order 53 of the Civil Procedure Rules and the Law Reform Act

Relief refused

#

Certiorari to quash NEMA's environmental restoration order of 20th January, 2009

The appellant should have pursued the statutory appeal to the National Environment Tribunal and failed to demonstrate exceptional circumstances justifying judicial review

p. 10

Prohibition against enforcement of the restoration order and against cancellation of the EIA licence

The remaining grounds fell away once the court concluded the statutory appeal was the appropriate forum

p. 10

Costs

Appeal dismissed with costs to the respondent

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted
p. 9Exhaustion of statutory appeal remedies
We do not accept that mere disclosure of an alternative remedy relieved the Appellant of its burden to demonstrate the suitability of judicial review over the appeal process
p. 9Burden of justifying judicial review
As a matter of common sense, no conclusive and binding determination can be made on any point at the stage of granting leave
p. 10Effect of leave-stage findings
issues of environment do not merely concern the Authority and the party against which a complaint is raised. Such issues concern all Kenyans and that is why the Act provides for public participation
p. 10Public participation in environmental matters
Accordingly our order shall be that the appeal be and is hereby dismissed with costs.
p. 10Final orders

Issues in the judgment

#
minor

The caption describes the appellant as 'REPUBLIC' but the judgment states the appellant is Sound Equipment Limited

minor

The trial judge's first-issue finding is transcribed with an apparent textual uncertainty between 'finding' and 'holding'

minor

The Authority's notice of motion is dated 20th January, 2009 in its prayers while the leave orders were actually made on 29th January, 2009, as the Court itself noted

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (10)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Environmental Management Authority [2011] KECA 412 (KLR)", Case Analysis (2011). Civil Appeal No. 84 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/412/eng@2011-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.