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ELCPartially AllowedELC Civil Appeal No. 81 of 2013 (consolidated with ELC Civil Appeal No. 1 of 2014)· [2014] KEELC 163 (KLR)

Addax (K) Limited v National Environmental Management authority & another [2014] KEELC 163 (KLR)

Environment and Land Court of Kenya (formerly High Court, upon transfer under Article 162(2)(b))
6 August 2014
9,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed Mastermind Tobacco's environmental appeal as filed too late, confirming the strict 60-day deadline for appeals to the National Environment Tribunal.

What this practically means

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Executive summary

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This is a consolidated first appeal from two rulings of the National Environment Tribunal in NET Appeal No. NET/109/2012, heard by P. Nyamweya J of the Environment and Land Court. The dispute arose from NEMA's grant to Addax Kenya Limited of an EIA licence for an LPG storage and distribution project on L.R 12715/604 Syokimau, Machakos, opposed by Mastermind Tobacco (K) Limited, which appealed to the Tribunal on 26th November 2012. Addax's preliminary objection that the Tribunal appeal was time barred was dismissed by the Tribunal on 30th January 2013, and a subsequent application to review that ruling was dismissed on 31st December 2013. On appeal, the Court held that the 60-day limitation under section 129 EMCA and Rule 4(2) of the Tribunal Rules ran from the date of the decision or its service, and that even computing time from the 29th August 2012 meeting (the latest date urged), the Tribunal appeal filed on 26th November 2012 was out of time. The Tribunal had erred in making findings on disputed facts about undertakings allegedly made by NEMA at the meeting, contrary to the Mukisa Biscuits principle on preliminary objections. The first appeal was allowed, the Tribunal's ruling set aside, and the preliminary objection upheld, dismissing Mastermind's Tribunal appeal as time barred. The second appeal, challenging the refusal to review the first ruling on the basis of later evidence by Geoffrey Mugambi, was dismissed: evidence arising after a ruling is not new evidence for review. Mastermind was ordered to pay Addax's costs of both appeals.

Key legal issues

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01

Whether the 2nd Respondent's appeal to the Tribunal was time barred

Holding

Yes - even computing time from the latest date contended for (29th August 2012), the appeal filed on 26th November 2012 was out of time

Reasoning

Section 129 EMCA and Rule 4(2) of the Tribunal Rules fix a 60-day limit running from the decision or its service. The licence was issued on 7th March 2012; the 2nd Respondent admitted awareness by letter dated 21st May 2012; the meeting was 29th August 2012. Even on the latest date, the appeal should have been filed by 30th September 2012, but was filed 26th November 2012. The Tribunal erred by resting its finding on disputed facts about undertakings at the meeting.

p. 12
02

Whether the Tribunal erred in determining disputed facts at the preliminary objection stage

Holding

Yes - the Tribunal made findings on the 29th August 2012 meeting that were disputed, contrary to the Mukisa Biscuit principle

Reasoning

A preliminary objection raises a pure point of law on assumed facts; it cannot proceed where facts must be ascertained. The Tribunal's findings that NEMA undertook to review or revoke the licence were contradicted by minutes and later evidence, and were immaterial in any event since time runs from the decision date.

p. 12
03

Whether the Tribunal should have reviewed its ruling on the basis of Geoffrey Mugambi's evidence

Holding

No - evidence arising after the ruling is not 'new evidence' for review, and the issue was one of disputed fact for full hearing

Reasoning

Review on account of new evidence requires that the evidence existed at the time of the ruling and could not with due diligence be placed before the court. Mugambi's testimony came after the ruling; it contradicted Mutuma's affidavit but was disputed factual material for trial, not a basis for review. The error was cured by allowing the first appeal.

p. 15

Legal principles established

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  • Time for filing an appeal to the National Environment Tribunal runs from the date of the decision appealed from or the date it was given to or served on the appellant, and a preliminary objection can only be raised on facts that are not disputed
  • Evidence arising after a ruling is delivered does not constitute new evidence capable of founding review

Court orders

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  1. 1.The Tribunal's ruling made on 30th January 2013 and dated 30th January 2012 be and is hereby set aside
  2. 2.The preliminary objection dated 19th December 2012 is upheld and the 2nd Respondent's appeal to the Tribunal filed on 26th November 2012 is dismissed for being time barred
  3. 3.The Appellant's appeal dated 10th January 2014 is dismissed
  4. 4.The 2nd Respondent shall meet the Appellant's costs of the appeals filed 15th February 2013 and 10th January 2014
On appeal from
National Environment Tribunal
NET Appeal No. NET/109/2012
Jurisdiction invoked
Section 130(1) of the Environmental Management and Coordination Act; Article 162(2)(b) of the Constitution; section 13(1) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Addax (K) Limited v National Environmental Management authority & another [2014] KEELC 163 (KLR)", Case Analysis (2014). ELC Civil Appeal No. 81 of 2013 (consolidated with ELC Civil Appeal No. 1 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/163/eng@2014-08-06

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