Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Judicial Review Misc No. 6 of 2019· [2020] KEELC 267 (KLR)

Republic v National Environment Management Authority (NEMA) & 2 others; Ex-Parte Misty Mountain Lodge Ltd & another [2020] KEELC 267 (KLR)

Environment and Land Court
11 December 2020
MOM. C. Oundo
5,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed a hotel's bid to stop NEMA's effluent licence demand because it went to court before using the required tribunal process.

What this practically means

#

Executive summary

#
Misty Mountain Lodge Ltd and its director Dennis Mathenge Waihenya moved the Court by a substantive Notice of Motion dated 29th July 2019 seeking judicial review orders of certiorari and prohibition (mandamus having been abandoned) against NEMA, the Inspector General of Police and the Director of Public Prosecutions. They challenged NEMA's demand for an Effluent Discharge License (EDL) and the consequent arrest and intended prosecution of their agent, contending that their effluent was stored in septic tanks and collected by NEMA-licensed exhausters, that Section 75(1) of EMCA only required an EDL for parties discharging effluent into the environment, and that NEMA's demand and the prosecution violated Articles 47(1) and 69(1)(d) of the Constitution. NEMA opposed, showing that the EIA license of 16th December 2015 required suitable wastewater treatment technology other than a septic tank/soak pit system, that an Improvement Notice dated 26th June 2019 requiring application for an EDL went unheeded, and that prosecution for non-compliance followed due process. The Court framed the principal issue as whether the remedies were merited, and dealt first with prematurity. Relying on Section 129(1) of EMCA and Section 9 of the Fair Administrative Action Act, it held that the Applicants should first have gone to the National Environment Tribunal and that the judicial review proceedings were premature. On prohibition, the Court held that prosecutorial powers under EMCA must be exercised sparingly but that the choice of enforcement rests with the agencies absent unreasonableness or mala fides; liability was a matter for the trial court. The motion was dismissed with costs.

Key legal issues

#
01

Exhaustion of alternative statutory remedies before resorting to judicial review

Holding

The judicial review proceedings were prematurely initiated because the Applicants ought first to have channelled their grievance to the National Environment Tribunal under Section 129(1) of EMCA, as reinforced by Section 9(2) of the Fair Administrative Action Act.

Reasoning

Section 129(1) and (2) of EMCA gives the National Environment Tribunal jurisdiction over complaints concerning licences, permits and improvement orders issued by NEMA. Section 9(2) of the Fair Administrative Action Act bars the High Court from reviewing administrative action where internal and statutory remedies have not been exhausted. Since the impugned demand rested on an Improvement Notice, the Applicants were bound to go to the Tribunal first, and the failure to do so rendered the application premature.

p. 5
02

Whether the Court should prohibit criminal proceedings arising from failure to obtain an Effluent Discharge License

Holding

Prohibition was refused. The decision to prosecute after non-compliance with an Improvement Notice was lawful, and questions of the Applicants' liability are for the trial court.

Reasoning

The Court held that prosecutorial powers under EMCA must be exercised sparingly and that remedial and precautionary measures are preferable to prosecution, but the choice of enforcement mode rests with the agencies unless unreasonableness or mala fides is shown. A judicial review court determines the fairness of process, not guilt or innocence, and the Applicants' contention about the septic tank system and non-discharge of effluent were merits questions reserved for the trial court.

p. 7
03

Whether an Effluent Discharge License was required despite the EIA license

Holding

The Court did not make a definitive finding, noting instead that the EIA license condition required suitable wastewater treatment technology (not a septic tank/soak pit system) and that the Applicants had not complied with the Improvement Notice.

Reasoning

The undisputed record showed that the EIA approval of 16th December 2015 contained an operational condition requiring suitable wastewater treatment technology and that an Improvement Notice dated 26th June 2019 required the Applicant to apply for an Effluent Discharge License and conduct an environmental audit. Rather than comply, the Applicant ran to Court. The Court treated the Applicant's assertions that effluent was collected by licensed exhausters as unproven, NEMA having put it to strict proof.

p. 5

Legal principles established

#
  • A court is barred from exercising judicial review jurisdiction unless available statutory appeal and review mechanisms have first been exhausted
  • It is only after failure to comply with an Improvement Order that a decision to prosecute for an environmental offence can be considered
  • A judicial review court is concerned with the fairness of process, not the guilt or innocence of the applicant, and must not stray into the arena reserved for the criminal court

Court orders

#
  1. 1.The Notice of Motion dated 29th July 2019 was dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 22(3), 23(1), 23(3), 47(1), 69(1)(d)
  • Civil Procedure RulesOrder 53 Rules 1, 3
  • Law Reform ActSection 8
  • Environmental Management and Co-ordination Act, 1999Sections 5, 9, 75(1), 87, 125, 129(1) and (2), 144, 145
  • Water Act No. 43 of 2016
  • Environmental Management and Co-ordination (Water Quality) Regulations, 2006Section 12(2)
  • Fair Administrative Action ActSection 9

Cases cited (5)

  • Republic vs. National Environment Management Authority ex-parte NEMA
    [2006] eKLR
  • Republic v National Environment Management Authority & Another Ex-parte Taherali Hassan Ali & another
    [2018] eKLR
  • Peter Bogonko vs. NEMA
    (2006) eKLR
  • Director of Public Prosecutions vs. Humphreys
    [1976] 2 All ER 497
  • Daniel Ndungu vs. Director of Public Prosecutions & Another
    (2013) eKLR
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules and Section 8 of the Law Reform Act (judicial review)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Environment Management Authority (NEMA) & 2 others; Ex-Parte Misty Mountain Lodge Ltd & another [2020] KEELC 267 (KLR)", Case Analysis (2020). ELC Judicial Review Misc No. 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/267/eng@2020-12-11

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