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ELCDismissedELCC Nos. 401 of 2017 and 402 of 2017 (formerly HC Judicial Review Applications Nos. 121 of 2011 and 118 of 2011)· [2020] KEELC 869 (KLR)

Republic v National Environment Management Authority; Ex-parte Applicant: Comply Industries Limited & another [2020] KEELC 869 (KLR)

Environment and Land Court
29 October 2020
DOD. O. Ohungo
2,699 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that NEMA can issue environmental compliance notices without a hearing, and aggrieved companies must appeal to the tribunal rather than rush to court.

What this practically means

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Executive summary

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Two ex parte applicants, Comply Industries Limited and Timsales Limited (sister companies), sought orders of certiorari to quash a notice dated 17th October 2011 issued by NEMA stopping their harvesting of logs, on the ground that they were not heard before its issuance. They claimed substantial daily revenue losses and job losses, and asserted they had harvested under allocations from the Kenya Forest Service. NEMA replied that the notice was an environmental restoration order issued under Section 108 of EMCA, that the applicants had commenced timber harvesting without an Environmental Impact Assessment Licence as required by Section 58 of EMCA, and that their remedy was an appeal to the National Environment Tribunal under Section 129 of EMCA. The court framed three issues: breach of natural justice, availability of a suitable alternative remedy, and availability of the relief. It held that no pre-notice hearing was required because the notice merely required the applicants to discharge statutory EIA obligations, forestry-related timber harvesting being a project under the Second Schedule to EMCA. It further held that a statutory appeal to NET, with onward appeal to the High Court, was a suitable alternative remedy and that no exceptional circumstances justified judicial review. Both Notices of Motion (dated 10th November 2011 and 27th October 2011) were dismissed with costs to NEMA.

Key legal issues

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01

Whether NEMA was obliged to give the applicants a hearing before issuing the notice

Holding

No hearing was required; the notice did not breach natural justice because it merely required the applicants to comply with their statutory EIA obligations under EMCA

Reasoning

NEMA is the principal instrument of government on environmental matters. The applicants admitted they were harvesting forests without an EIA licence. Section 58 of EMCA and Paragraph 2(5) of the Second Schedule mandatorily require an EIA study report for timber harvesting. The notice merely required performance of statutory obligations and correctly warned of the offence under Section 138 of EMCA, so it was procedurally proper.

p. 3
02

Whether a suitable alternative remedy disentitled the applicants from judicial review

Holding

Yes; the applicants had a statutory right of appeal to the National Environment Tribunal under Section 129(1)(e) of EMCA, and no exceptional circumstances were demonstrated to bypass it

Reasoning

The notice was an environmental restoration order under Section 108 of EMCA. Aggrieved persons may appeal to NET, which under Section 129(3) can confirm, set aside or vary the order and maintain the status quo. NET decisions are further appealable to the High Court under Section 130. The statutory appeal provides adequate remedies including the setting aside sought by certiorari.

p. 4

Legal principles established

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  • Where a statutory appeal procedure exists, judicial review will only be granted in exceptional circumstances
  • A person commencing or proceeding with a project specified in the Second Schedule to EMCA must submit an Environmental Impact Assessment study report and obtain an EIA licence before commencement, notwithstanding any other permit

Court orders

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  1. 1.Notice of Motion dated 10th November 2011 dismissed
  2. 2.Notice of Motion dated 27th October 2011 dismissed
  3. 3.Costs of both applications awarded to the respondent (NEMA)

Authorities

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Legislation

  • Environmental Management and Co-ordination Act, 1999 (EMCA)Sections 2, 58(1),(2),(3), 75, 108, 129(1)(e), 129(3), 130, 138; Second Schedule Paragraph 2(5)
  • Forest Conservation and Management Act, 2016Section 75(1),(2),(3)
  • Civil Procedure RulesOrder 19 Rule 3

Cases cited (7)

  • COTU vs. Benjamin K. Nzioka and Others
    Civil Application No. Nai. 249 of 1993
  • Nyongesa & 4 others v Egerton University College
    [1990] eKLR
  • Kadamas & Another vs Municipality of Kisumu
    [1985] eKLR
  • Republic v National Environmental Management Authority
    [2011] eKLR
  • Sam Odera & 3 others v National Environmental Management Authority & another
    [2006] eKLR
  • Municipal Council of Mombasa v Republic & another
    [2002] eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    [2008] 2 EA 300
Jurisdiction invoked
Judicial review jurisdiction over NEMA's decision, exercised under EMCA following transfer of the High Court judicial review applications to the Environment and Land Court

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, "Republic v National Environment Management Authority; Ex-parte Applicant: Comply Industries Limited & another [2020] KEELC 869 (KLR)", Case Analysis (2020). ELCC Nos. 401 of 2017 and 402 of 2017 (formerly HC Judicial Review Applications Nos. 121 of 2011 and 118 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/869/eng@2020-10-29

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