Jane Ngonyo Muhia v Director General, National Environmental Management Authority & another [2017] KEELC 1204 (KLR)
The bottom line
#A Kenyan court spared two illegally built floors from immediate demolition, giving the owner 120 days to obtain regulatory approvals or lose them.
What this practically means
#Executive summary
#Key legal issues
#Whether NET could determine issues not raised in the grounds of appeal and grant reliefs not sought
NET erred by deciding the appeal on issues not raised by the 2nd respondent and by ordering demolition, a relief not sought in the terms ordered; its rulings could not stand
The court found that NET based its decision on the appellant having commenced construction before licensing and building a five-storey instead of three-storey building, neither of which was a ground of the 2nd respondent's appeal. The relief of partial demolition was also not sought in the form granted. Deciding unpleaded issues and granting unpleaded relief vitiated the rulings.
Whether the appellant failed to conduct adequate stakeholder consultation
NET's finding on lack of consultation was unsupported, as unchallenged evidence showed consultation was attempted and some residents were consulted
The 2nd respondent's own witness admitted some members were consulted. The appellant's expert testified he distributed questionnaires and visited the Chairman and Secretary, who declined to respond; that evidence was unrebuted. NET did not explain preferring the contrary evidence, and its finding had no correlation with the final decision.
Whether the award of costs against the appellant was justified
The vexatious-conduct finding had no evidential basis; defiance of NET's stop order was a criminal matter, not a ground for costs
Rule 39 of NET's Rules of Procedure permits costs only where a party acted frivolously, vexatiously or wholly unreasonably. The appellant was merely a respondent defending the appeal, filed no frivolous applications, and the alleged disobedience of the stop order should have been dealt with as a criminal offence rather than through costs.
Scope of EIA licensing and NET's mandate over physical planning issues
EIA licensing assesses environmental impacts; issues of change of user and development plans fall outside NET's mandate
The court endorsed the Busienei statement that the purpose of EIA is to assess likely significant environmental impacts, and held that some of the 2nd respondent's complaints related to physical planning and were beyond NET's mandate; the remainder required proof of actual environmental impact and adequacy of mitigation measures.
Legal principles established
#- A tribunal cannot base its decision on issues that were not raised in the grounds of appeal before it, nor grant a relief that was not sought by the appellant
- The purpose of an EIA licensing process is to assess the likely significant impact of a proposed project on the environment; residential designation alone does not determine the status of the environment
- An appellate court will not interfere with findings of fact unless not based on evidence, based on misapprehension of the evidence, or reached on wrong principles
Court orders
#- 1.The rulings of NET made on 7th December, 2009 and 27th January, 2010 are set aside
- 2.The two top floors of the building on Nairobi/Block 82/6259, constructed without NEMA authority, shall not be occupied, and if occupied, shall be vacated within 90 days
- 3.The appellant shall apply for approvals and certification of the two floors by all the relevant regulatory authorities before they are occupied
- 4.If the appellant fails to implement the order within 120 days or the two floors are not certified and/or approved for human inhabitation, the same shall be demolished under the supervision of the relevant regulatory authorities
- 5.Each party shall bear its own costs of the appeal
- On appeal from
- National Environmental Tribunal
- Appeal lodged 21st April 2009 against NEMA's grant of EIA Licence
- Jurisdiction invoked
- First appeal from the National Environmental Tribunal under the Environmental Management and Co-ordination Act, 1999 (EMCA); powers under Section 13(7) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kopoa Developers Limited v Endesk Properties Limited & another (Environment and Land Appeal E002 of 2024) [2024] KEELC 3963 (KLR)[2024] KEELC 3963 (KLR)16 May 2024
- Mwongera & 2 others ((Suing as Chairman, Treasurer & Secretary of Karen Langata District Association)) v National Environment Management Authority (NEMA) & another; Taaleri Private Equity Funds (Interested Party) (Environment and Land Appeal 20 of 2019) [2024] KEELC 1655 (KLR)[2024] KEELC 1655 (KLR)20 Mar 2024
- Waste Africa Limited v Hassan Noor Hassan & 79 others & Director General NEMA[2022] KEELC 15433 (KLR)24 Nov 2022
- M’imaana M’ithilai v County Government of Meru & another[2022] KEELC 14956 (KLR)23 Nov 2022
- Rhoda S Kilu v Jianxi Water and Hydropower Construction Kenya Ltd [2022] KEELC 921 (KLR)[2022] KEELC 921 (KLR)9 Mar 2022applied
- Kenya National Highways Authority v Public Private Partnerships Petition Committee & 2 Others; H. Young/Gibb Consortium (2nd Interested Party)[2018] KEHC 9690 (KLR)8 Nov 2018applied
Cite this brief
#Cite this brief
Caselaw, "Jane Ngonyo Muhia v Director General, National Environmental Management Authority & another [2017] KEELC 1204 (KLR)", Case Analysis (2017). ELC Appeal No. 315 of 2010 (from National Environmental Tribunal Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1204/eng@2017-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.