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Court of AppealPartially AllowedCivil Appeal No. 9 of 2011

National Environmental Tribunal v Overlook Management Limited & 5 others [2019] KECA 1005 (KLR)

Court of Appeal of Kenya
8 February 2019
PWP. N. WakiAMAsike MakhandiaAMA. K. Murgor
4,812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that any Kenyan can appeal NEMA environmental decisions to the Tribunal without owning the affected land.

What this practically means

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Executive summary

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This appeal by the National Environmental Tribunal challenged the High Court's (Emukule J) ruling quashing by certiorari the Tribunal's decision to entertain an appeal and issuing prohibition against it. The underlying dispute concerned NEMA's approval of an environmental impact assessment for seven luxury villas on LR No. Portion No. 4381 in Malindi, on a beach the 5th respondent asserted was leased conditionally as a public camping site. The Tribunal had stopped construction under section 129(4) of the Environmental Management and Coordination Act pending determination of the appeal lodged by Malindi Green Town Movement and Malindi South Residents Association. The High Court held those bodies lacked locus standi, being strangers or busybodies who could only invoke section 3(3) of the Act before the High Court. The Court of Appeal allowed the appeal. It reconciled conflicting High Court decisions by holding that while section 129(1)(a)-(e) gives certain parties an appeal as of right, section 129(2) permits any person aggrieved by a decision of NEMA, its Director-General or committees to appeal to the Tribunal without demonstrating any right or interest in the affected property, environment or land. It found NEMA's approval letter of 1st December 2005 was a decision amenable to appeal even though the licence per se had not been issued, and that the 4th and 5th respondents, acting in the public interest, had standing. The Court cautioned that public interest litigation must not be frivolous, vexatious or an abuse of process under section 3(4). The High Court ruling of 9th May 2008 was set aside and in lieu thereof the 1st and 2nd respondents' application dated 24th July 2006 was dismissed, with no order as to costs.

Questions the Court framed

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

  1. 1.Whether Malindi Green Town Movement and Malindi South Residents Association had locus standi to lodge an appeal to the National Environmental Tribunal against NEMA's approval of the EIA
  2. 2.Whether the expanded locus standi in environmental matters under the Environmental Management and Coordination Act extends to the Tribunal and not only to the High Court
  3. 3.Whether NEMA's letter of 1st December 2005 approving the project constituted a decision amenable to appeal under section 129(2) of the Act

Key legal issues

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01

Locus standi of non-participants to appeal to the National Environmental Tribunal

Holding

The 4th and 5th respondents had the requisite standing to appeal NEMA's approval of the villas

Reasoning

EMCA was enacted to vacate the strict common law requirements of locus standi that had hampered environmental litigation. Section 129(2) allows any person aggrieved by a decision of NEMA, its Director-General or committees to appeal to the Tribunal. The 4th respondent was a community-based organisation focused on Malindi and the 5th the residents' association; they acted in public interest. The High Court erred in treating them as strangers or busybodies.

p. 4
02

Reconciliation of conflicting High Court decisions on section 129 of EMCA

Holding

Section 129(1)(a)-(e) confers an appeal as of right on parties aggrieved by the listed events; section 129(2) confers a separate route for parties aggrieved by any decision of NEMA, its Director-General or committees

Reasoning

The court noted conflicting High Court authorities (Emukule J; OlKeju Ronkai; Odunga J; Gitumbi J) on whether the Tribunal's jurisdiction was limited to section 129(1). It held that where a party does not qualify under subsection (1) but is aggrieved by a decision of the Authority, it may appeal under subsection (2) without showing any right or interest in the property or land, consistent with the Act's expanded standing.

p. 3
03

Nature of NEMA's approval as an appealable decision

Holding

NEMA's communication of 1st December 2005 approving the project was a decision subject to appeal notwithstanding that the EIA licence per se had not been furnished

Reasoning

The appellants argued that no licence had been issued and that no decision existed capable of appeal. The court held that NEMA had in fact made a decision approving the proposed project, which was communicated to the developers, and that such a decision falls within section 129(2). The appeal was therefore properly before the Tribunal.

p. 4
04

Safeguards against abuse of public interest litigation

Holding

Public interest litigation under the Act must not be frivolous or vexatious or an abuse of process

Reasoning

The court acknowledged that public interest litigation risks abuse and exploitation, and directed that courts enforce the proviso in section 3(4) of the Act. However, this did not detract from the expanded standing conferred by the Act, which any person, group or association may invoke on their own behalf or in the public interest.

p. 5

Legal principles established

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  • A party aggrieved by a decision of NEMA, its Director-General or committees may appeal to the Tribunal under section 129(2) of EMCA without demonstrating a right or interest in the affected property, environment or land
  • Expanded locus standi in environmental matters under EMCA extends to every Kenyan and applies to appeals before the Tribunal, not just proceedings in the High Court
  • Approval of an EIA by NEMA is a decision amenable to appeal under section 129(2) even where the licence per se has not been issued

Court orders

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  1. 1.The ruling and order of the High Court in Miscellaneous Civil Application No. 391 of 2006 made on 9th May 2008 set aside
  2. 2.In lieu thereof, substitution of an order dismissing the 1st and 2nd respondents' application dated 24th July 2006
  3. 3.No order as to costs

The bench

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

PW
majority
AM
majority
AM
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. No. 391 of 2006
Jurisdiction invoked
First appeal/judicial review appeal under the Environmental Management and Coordination Act, sections 3, 111 and 129 (memorandum of appeal dated 17th January 2011)

Relief refused

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Costs to any party

The court made no order as to costs

p. 5

Costs

There shall be no order as to costs.

Quotable passages

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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 ruling and order of the High Court, Miscellaneous Civil Application number 391 of 2006 made on 9th May, 2008 is accordingly set aside. In lieu thereof, we substitute an order dismissing the 1 st and 2nd respondents’’ application dated 24th July 2006. There shall be no order as to costs.
p. 5Disposition - setting aside the High Court ruling and substituting dismissal of the judicial review application
We take the view that such a party does not have to demonstrate that he has a right or interest in the property, environment or land alleged to have been or likely to be harmed. This is in line with the expanded locus standi in the Act and gives effect to its legislative purpose.
p. 3Expanded locus standi under section 129(2) of EMCA
No doubt expanded locus standi in environmental matters extends to every Kenyan.
p. 4Standing in environmental litigation
The Act heralded Parliament’s intention to give litigants on environmental matters necessary standing to institute an action against environmental violators even if such a litigant may not have been directly or personally affected by the actions or omissions of such violators but which may negatively impact or harm the environment.
p. 3Legislative purpose of EMCA on standing

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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

Cite this brief

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Cite this brief

Caselaw, "National Environmental Tribunal v Overlook Management Limited & 5 others [2019] KECA 1005 (KLR)", Case Analysis (2019). Civil Appeal No. 9 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1005/eng@2019-02-08

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