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ELCDismissedELC Appeal No. 3 of 2017· [2018] KEELC 2585 (KLR)

Abdul Hameed Sheikh & another (Suing for an on behalf of Riverside Gardens Residents Association) v Director General National Environment Management Authority [2018] KEELC 2585 (KLR)

Environment and Land Court
28 June 2018
2,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed residents' late environmental appeal, confirming Kenyan tribunals will reject unexplained filing delays even in public-interest cases.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Milimani from a ruling of the National Environment Tribunal delivered on 13th December 2016 in NET No. 178 of 2016, in which the Tribunal dismissed the appellants' application for leave to file an appeal out of time and lifted the stop order halting Globe Developers Limited's apartment project on amalgamated parcels L.R. No. 209/4904 and 209/4905/1. The appellants, the Riverside Gardens Residents Association, had earlier filed NET Appeal 172 of 2016 (dismissed on 10th May 2016 after a preliminary objection), then sought extension of time on 3rd June 2016. The appeal condensed to four grounds: that the Tribunal erred on the reasons for delay, failed to consider the substantive merits, faulted the appellants for approaching other agencies, and unduly relied on the dismissed NET 172 of 2016. The court identified the sole issue as whether the Tribunal properly exercised its discretion in refusing extension of time. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, the judge found the 20-month delay unreasonable, the explanations (vacancy in the Association's office and delayed official communication of the EIA licence) contradicted by the Association's own minutes of 10th October 2014 and counsel's concession, and noted the appellants were not opposed to the project but to zoning and change of user, matters outside the Tribunal's mandate. The appeal was dismissed with costs to the respondents on 28th June 2018 (E.O. Obaga, J).

Key legal issues

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01

Whether the Tribunal properly exercised its discretion in refusing leave to appeal out of time

Holding

The Tribunal properly exercised its discretion; the delay of 20 months was unreasonable, the explanations (vacancy in office, late formal communication) were contradicted by evidence including the Association's own minutes of 10th October 2014, and the Appellants were not opposed to the project itself.

Reasoning

The court applied the seven Salat principles. The appellants knew of the EIA licence decision well before the date they alleged, as shown by their own minutes and their counsel's concession that they were pursuing other agencies. From 30th November 2015 they still had 60 days to appeal. Since their real complaints (zoning, change of user, sewerage, water) lay outside the Tribunal's mandate and they were not opposed to the project, no extension was warranted. The reference to NET 172 of 2016 was proper.

p. 3

Legal principles established

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  • The decision whether or not to extend time is a matter of discretion which must be exercised judicially, applying the principles in the Salat case, on a case-by-case basis.
  • Public interest in environmental litigation does not automatically justify extension of time; the circumstances of each case must be considered.
  • Issues of change of user and zoning fall under the physical planning department of the County Government and are not within the province of the National Environment Tribunal.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Environmental Management and Co-ordination Act, Cap 387 (EMCA)Section 129

Cases cited (7)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & Others
    [2014] eKLR
  • Fahim Yasim Yasin Twaha v Timamy Issa Abdalla & 2 Others
    [2015] eKLR
  • Hassan Nyanje Charo v Khatib Mwashetani & 5 Others
    [2014] eKLR
  • Kiluwa Limited & Another v Commissioner of Lands & Others
    (2015) eKLR
  • Henry Maina Gatete v Jane Njoki Ngugi & Another
    [2014] eKLR
  • Charles Kamuran v Grace Chelagat Kipchoim & 2 Others
    (2013) eKLR
  • Wavinya Ndeti v Independent Electoral & Boundaries Commission (IEBC) & 4 Others
    [2014] eKLR
On appeal from
National Environment Tribunal
NET No. 178 of 2016
Jurisdiction invoked
First appeal from the National Environment Tribunal under the Environmental Management and Co-ordination Act (EMCA)

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, "Abdul Hameed Sheikh & another (Suing for an on behalf of Riverside Gardens Residents Association) v Director General National Environment Management Authority [2018] KEELC 2585 (KLR)", Case Analysis (2018). ELC Appeal No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2585/eng@2018-06-28

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