Moi’s Bridge Quarry Company Limited v National Environment Tribunal & 3 others [2017] KEELC 3487 (KLR)
The bottom line
#Kenya's High Court quashed the National Environment Tribunal's stop order, ruling it acted without jurisdiction and violated fair hearing rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal's handling of the appeal violated the right to fair administrative action under Article 47
Article 47 was violated: the Tribunal considered an undated, unserved document, converted a mention into a hearing without notice, and entertained an appeal over a vague decision without a disclosed NEMA decision under section 129(2) and (3) of EMCA
The court found the Tribunal's proceedings were administrative action affecting rights. The document of 24th April 2015 by the 1st interested party was neither dated nor served, yet the Tribunal acted on it. Parties summoned for a mention had it converted into a hearing of an application to set aside the consent without notice. The Tribunal also failed to consider that no decision by NEMA was disclosed or attached to the appeal. These breaches constituted a failure of fair administrative action.
Whether the right to fair hearing under Article 50 was violated
The right to fair hearing was violated because the petitioner was not given time to file a response to the allegations made by the 1st interested party
The court cited Ridge v Baldwin for the principle that natural justice applies to bodies exercising administrative duties, identifying the right to be heard by an unbiased tribunal, notice of charges, and the right to answer. The right to be heard includes the right to adequate time to prepare, and the petitioner was given no time to respond to the forgery allegations, so Article 50 was breached.
Whether the Tribunal had jurisdiction to entertain Appeal No. NET 138 of 2015
The Tribunal lacked jurisdiction; the appeal did not relate to a decision or action envisaged under section 129 of EMCA, and the interested parties should have gone to the Environment and Land Court under section 130
Section 129(1) of EMCA envisages appeals only by persons denied a licence or transfer, or against whom conditions, limitations or restrictions have been imposed. Section 129(2) was inapplicable as no decision or action of the director general, the authority or a committee was disclosed. The dispute concerned quarrying without an EIA licence affecting locals, properly within the Environment and Land Court's jurisdiction.
Whether Article 159(2)(c) on alternative dispute resolution was violated
Not violated; the constitutional encouragement of ADR extends only to genuine reconciliation, mediation and arbitration, and judicial organs cannot enforce consents illegally obtained
The petitioner argued the Tribunal could not set aside an out-of-court settlement consent on mere unproven forgery allegations. The court rejected this: Article 159(2)(c) is meant to encourage genuine settlement, and the proviso implies that consents obtained illegally cannot be enforced by judicial organs. However, the court still found only the 2nd interested party, the actual appellant, had capacity to seek setting aside.
Capacity of the 1st interested party and effect of the withdrawal
The 1st interested party never signed the appeal and was not party to it; the withdrawal by the 2nd interested party made the Tribunal functus officio and the 1st interested party lacked capacity to reinstate
The appeal was signed only by Francis Abuyekha, the 2nd interested party, who admitted signing the consent to withdraw. A handwriting and document examination expert established the 1st interested party had signed the consent. Having not signed the appeal, the 1st interested party was not party to it, so only the 2nd interested party could apply to set aside the withdrawal order.
Legal principles established
#- Tribunal proceedings involving a decision-making process that affects the rights of individuals constitute administrative action to which fair administrative action and natural justice requirements apply
- A party who did not sign an appeal is not party to the appeal and lacks capacity to apply to reinstate a withdrawn appeal
- After withdrawal of an appeal the Tribunal becomes functus officio and lacks capacity to reinstate it
- Under section 129 of EMCA only a person denied a licence or transfer thereof, or against whom conditions, limitations or restrictions have been imposed, has capacity to appeal
Court orders
#- 1.A declaration that the manner in which the respondent Tribunal conducted Appeal No. NET 138 of 2015 violated section 129 of EMCA and the National Environment Tribunal Rules, 2003
- 2.A declaration that the appeal was filed in a tribunal lacking jurisdiction, the dispute not relating to a decision or action envisaged under the Act
- 3.A declaration that NET 138 of 2015 having been withdrawn by the 2nd interested party, the 1st interested party lacked capacity to reinstate it and the Tribunal had become functus officio
- 4.A declaration that the stop order issued on 26.2.2015 is unconstitutional and null and void for inconsistency with Articles 47 and 50
- 5.An order of certiorari quashing the stop order issued by the Tribunal on 26.2.2015
- 6.An order of prohibition prohibiting the Tribunal from proceeding with the hearing of Appeal No. NET 138 of 2015
- 7.The respondent Tribunal condemned to pay the costs of the petition
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Bill of Rights enforcement jurisdiction under Articles 22, 23, 47, 50 and 165)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moi’s Bridge Quarry Company Limited v National Environment Tribunal & 3 others [2017] KEELC 3487 (KLR)", Case Analysis (2017). Petition (Eldoret) re Appeal No. NET 138 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3487/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.