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ELCDismissedNET (Nairobi) Tribunal Appeal No. 203 of 2017 (appeal against ruling of 27/6/2017)· [2018] KEELC 3879 (KLR)

Micah Mutoko & 4 others v Director General, National Environment Management Authority & 2 others [2018] KEELC 3879 (KLR)

Environment and Land Court
29 March 2018
BEB M Eboso
6,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that missed deadlines for appealing environmental licences will only be forgiven for strong, honestly explained reasons.

What this practically means

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Executive summary

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NEMA issued an EIA licence on 3/11/2016 to Shree Nairobi Sthanakvasi Jain Mandal Registered Trustees to construct a temple on LR Nos 9729/7, 9729/6 and 9729/2 in Loresho, Nairobi. The appellants applied to the National Environment Tribunal under rule 7 of the NET Procedure Rules 2003 for extension of time to appeal against the licence under Section 129(2) of EMCA. The Tribunal dismissed the application by a ruling dated 27/6/2017, finding no good reason for the delay and holding that the appellants, who knew of the licence by November 2016 as shown by minutes, emails and correspondence, were guilty of material non-disclosure. The appellants appealed to this court on twenty grounds, contending inter alia that the Tribunal ignored merits, public participation, non-gazettement of the EIA report under Section 59 EMCA, and its own precedents. The court framed three questions: whether the Tribunal considered the relevant extension-of-time principles, whether it erred, and whether the criteria for interfering with a discretionary decision were met. Applying Fahim Yasin Twaha and United India Insurance, the court held the Tribunal considered appropriate principles, that the gazettement ground was improperly raised for the first time, that the evidence supported the finding of awareness and public participation, and that Simba Corporation on limitation dates was inapplicable because limitation was not contested. The appeal was dismissed with each party bearing own costs given its public-litigation character.

Key legal issues

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01

Whether the Tribunal considered the relevant principles governing extension of time

Holding

It did; it considered the legal framework, the equitable nature of the relief, full disclosure, the statutory criteria, public participation and proportionality

Reasoning

The court reviewed paragraphs of the Tribunal's ruling and found the Tribunal had considered the statutory 'good reason' requirement, the discretionary and equitable nature of the relief, the applicants' material non-disclosure, and the prejudice to a developer five months into construction, and therefore committed no fault in that regard.

p. 7
02

Whether the Tribunal erred in law or fact in its ruling of 27/6/2017

Holding

No substantial error disclosed; grounds such as non-gazettement were raised for the first time without notice and properly disregarded

Reasoning

The gazetttement issue was first raised in oral submissions and later in the memorandum of appeal, denying respondents a chance to respond by evidence or legal material. The Tribunal properly relied on minutes, correspondence and emails showing the appellants knew of the licence in November 2016, and the Simba Corporation authority on limitation dates was inapplicable since limitation was not contested.

p. 8
03

Whether the appellants satisfied the criteria for interfering with a discretionary decision

Holding

They did not; the appeal was dismissed

Reasoning

Having found that the Tribunal considered appropriate principles and committed no substantial error, the court held that the thresholds in United India Insurance were not met. The appellants' knowledge of the licence, their material non-disclosure, and lack of good reason for the delay meant the criteria for setting aside the Tribunal's discretionary decision were not satisfied.

p. 8

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a trial court or tribunal unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong
  • Extension of time is an equitable remedy available only to a deserving party who must lay a basis to the satisfaction of the court, explain the reasons for delay and show absence of prejudice
  • Rule 7 of the NET Procedure Rules 2003 donates discretionary jurisdiction to the Tribunal to extend the limitation period for Section 129(2) EMCA appeals upon good reason shown, but not for Section 129(1) appeals
  • A party seeking extension of time has a legal duty to satisfy both the statutory 'good reason' criterion and the guiding principles, and must make full disclosure to the tribunal

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Environmental Management and Coordination ActSection 59
  • Environmental Management and Coordination ActSection 129(1), 129(2)
  • National Environment Tribunal Procedure Rules 2003Rule 4(2), Rule 7
  • Constitution of Kenya, 2010not specified (public participation as constitutional right)
  • Legal Notice No 150exemption from gazettment requirement (referred to by 2nd respondent)

Cases cited (7)

  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others
    (2015) eKLR
  • Nick Salat case
  • United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    (1985) EA 898
  • Simba Corporation Limited v Director General, Environment Management Authority (NEMA) & Another
    (2017) eKLR
  • Maraba Lwatingu Residents Associations & Others v Director General NEMA and Others
    NET 113 of 2013
  • Isaac Gitoho & 2 Others v Nema & Grove Limited
    NET 143 of 2015
  • Addax (K) Limited v National Environmental Management Authority & Another
    [2014] eKLR
On appeal from
National Environment Tribunal
NET (Nairobi) Tribunal Appeal No. 203 of 2017, application dated 4/4/2017
Jurisdiction invoked
Section 129 of the Environmental Management and Coordination Act; appeal from the National Environment Tribunal exercising discretion under rule 7 of the NET Procedure Rules 2003

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Micah Mutoko & 4 others v Director General, National Environment Management Authority & 2 others [2018] KEELC 3879 (KLR)", Case Analysis (2018). NET (Nairobi) Tribunal Appeal No. 203 of 2017 (appeal against ruling of 27/6/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3879/eng@2018-03-29

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