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ELCPartially AllowedELC Appeal No. 315 of 2010 (from National Environmental Tribunal Appeal)· [2017] KEELC 1204 (KLR)

Jane Ngonyo Muhia v Director General, National Environmental Management Authority & another [2017] KEELC 1204 (KLR)

Environment and Land Court
13 October 2017
3,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, the leasehold proprietor of Nairobi/Block 82/6259 in Donholm Phase 5, Nairobi, began constructing a building in March 2008 before obtaining an Environmental Impact Assessment Licence. NEMA stopped the works, after which she obtained an EIA project report, change of user from the City Council of Nairobi, and an EIA Licence on 2nd December 2008 permitting 16 housing units. The 2nd respondent appealed to the National Environmental Tribunal, complaining of lack of consultation, irregular change of user, non-conformity with the estate plan and related environmental concerns, and seeking cancellation of the licence, stoppage of development and demolition. On 7th December 2009 NET ordered the appellant to demolish the two topmost of five floors of the building, directed that it not be occupied until demolition, and on 27th January 2010 condemned her to pay costs of Kshs.352,132/- for acting vexatiously by defying NET's stop order. On first appeal, the Environment and Land Court re-evaluated the evidence and held that NET had decided the appeal on issues not raised in the grounds of appeal and had granted a relief not sought; that the finding of inadequate stakeholder consultation was unsupported by evidence; and that the award of costs had no basis since disobedience of NET's stop order was a criminal offence, not a ground for costs. The court set aside both NET rulings. Exercising its powers under Section 13(7) of the Environment and Land Court Act to protect public interest, it ordered that the two top floors not be occupied, that the appellant obtain regulatory approvals and certification within 120 days, failing which the floors would be demolished under regulatory supervision, and that each party bear its own costs.

Key legal issues

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01

Whether NET could determine issues not raised in the grounds of appeal and grant reliefs not sought

Holding

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

Reasoning

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.

p. 5
02

Whether the appellant failed to conduct adequate stakeholder consultation

Holding

NET's finding on lack of consultation was unsupported, as unchallenged evidence showed consultation was attempted and some residents were consulted

Reasoning

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.

p. 6
03

Whether the award of costs against the appellant was justified

Holding

The vexatious-conduct finding had no evidential basis; defiance of NET's stop order was a criminal matter, not a ground for costs

Reasoning

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.

p. 7
04

Scope of EIA licensing and NET's mandate over physical planning issues

Holding

EIA licensing assesses environmental impacts; issues of change of user and development plans fall outside NET's mandate

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The rulings of NET made on 7th December, 2009 and 27th January, 2010 are set aside
  2. 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. 3.The appellant shall apply for approvals and certification of the two floors by all the relevant regulatory authorities before they are occupied
  4. 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. 5.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Environmental Management and Co-ordination Act, 1999 (EMCA)Part VI
  • Environment (Impact Assessment and Audit) Regulations, 2003
  • Water Quality and Solid Waste Management Regulations, 2006
  • Environment and Land Court ActSection 13(7)
  • National Environmental Tribunal Rules of Procedure, 2003Rule 39

Cases cited (5)

  • VERANI T/A KISUMU BEACH RESORT V PHOENIX OF EAST AFRICA ASSURANCE CO LTD
    [2004] 2 KLR 269
  • SELLE V ASSOCIATED MOTOR BOAT CO LTD
    [1968] E.A 123
  • PETER V SUNDAY POST LTD
    [1958] E.A 424
  • MAKUBE V NYAMURO
    [1983] KLR 403
  • TIM BUSIENEI & 2 OTHERS V DIRECTOR GENERAL, NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY & ANOTHER
    TRIBUNAL CASE NO. 10 OF 2006 [2007] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "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.