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ELCDismissedELC Civil Appeal No. 21 of 2019· [2021] KEELC 491 (KLR)

Pakwood Investments Limited & another v National Environment Management Authority & 7 others [2021] KEELC 491 (KLR)

Environment and Land Court
9 December 2021
LKL. Komingoi
4,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The court confirmed that appeals against environmental licences in Kenya must be filed within 60 days of the licence being granted—no exceptions.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Nairobi against a ruling of the National Environment Tribunal dated 8th March 2019, by which the Tribunal upheld a preliminary objection and dismissed the Appellants' appeal against the grant of Environmental Impact Assessment Licence No. NEMA/EIA/PSL/6998 to Majestic Limited for development on LR No. 1870/III/150, Matundu Lane, Nairobi, for being filed outside the 60-day period in Section 129(1) of the Environmental Management and Coordination Act. The Appellants argued their appeal lay under Section 129(2) of EMCA and Rule 4(2) of the Tribunal Procedure Rules, that they did not participate in the EIA process and only learned of the licence in January 2019 when trees were felled, and that dismissing the appeal without interrogating facts violated their right to a fair hearing. The 2nd Respondent contended the appeal challenged the grant of a licence and thus fell under Section 129(1), that the Appellants participated in the EIA process through questionnaires, objections and association correspondence, and that limitation is a proper preliminary objection. Justice L. Komingoi found overwhelming evidence of the Appellants' participation, held that an appeal against the grant of a licence falls under Section 129(1)(a) with the 60-day period running from the licence date of 20th November 2018, that the preliminary objection was a pure point of law, and that no excluded-period provision could extend the statutory time. The right to a fair hearing was not breached. The appeal was dismissed with costs to the 2nd Respondent.

Key legal issues

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01

Whether the Appellants' Tribunal appeal fell under Section 129(1) or Section 129(2) of EMCA

Holding

The appeal fell under Section 129(1)(a) because the substratum was the challenge to the grant of the EIA licence, attracting the 60-day limitation

Reasoning

The court held that Section 129(1) deals with appeals against the grant, refusal, or imposition of conditions on licences, while subsection (2) covers other administrative decisions of the Authority. Since the Appellants were challenging the issuance of Licence No. NEMA/EIA/PSL/6998, their appeal was squarely within subsection (1), and the 60-day period ran from 20th November 2018.

p. 10
02

Whether the limitation objection was a proper preliminary objection or required interrogation of facts

Holding

It was a pure point of law; the participation of the Appellants in the EIA process was evident from the record, so no factual inquiry was needed

Reasoning

Relying on Mukisa Biscuit Manufacturing, the court found the limitation issue went to jurisdiction and was a pure point of law. On participation, the record contained questionnaires filled by the Appellants and letters from the Westlands Residents Association objecting to, and later withdrawing objections to, the project, demonstrating they had participated and had locus standi under Section 129(1).

p. 9
03

Whether the Tribunal breached the Appellants' right to a fair hearing by dismissing the appeal on a preliminary objection

Holding

No breach; the right to a fair hearing applies to both parties and the Appellants' delay could not be visited on the Respondents

Reasoning

The court found that the right to be heard applies both ways and that dismissing a time-barred appeal did not violate Articles 25(c), 48 and 50(1) of the Constitution. Limitation periods exist to ensure grievances are raised timeously, and the Appellants, having participated in the EIA process and knowing of the licence, could not claim ignorance of the 60-day period.

p. 10
04

Whether the excluded period (21st December to 6th January) could extend the 60-day limitation period

Holding

EMCA contains no provision permitting the Tribunal to incorporate the excluded period, so the statutory count stands

Reasoning

The Tribunal had held that the statutory time count is not suspended by the excluded period absent a legal provision permitting incorporation, and the court endorsed that reasoning, noting that a substantive statute like EMCA could not be overridden by subsidiary legislation or Civil Procedure Rules provisions on excluded days.

p. 10

Legal principles established

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  • A plea of limitation may properly be raised as a preliminary objection
  • An appeal challenging the grant of a licence falls under Section 129(1) EMCA, which requires filing within sixty days of the decision

Court orders

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  1. 1.The appeal is dismissed with costs to the 2nd Respondent

Authorities

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Legislation

  • Environment Management and Coordination ActSection 129(1)
  • Environment Management and Coordination ActSection 129(2)
  • Environment Management and Coordination ActSection 129(1)(a)
  • Environment Management and Coordination ActSections 58 and 59
  • Environmental Management and Co-ordination Tribunal Procedure Rules, 2003Rule 4(2)
  • Constitution of Kenya, 2010Articles 25(c), 42, 48, 50(1), 69(1)(d), 70, 47, 159(2)(e)
  • Physical Planning Actnotice of change of use requirements
  • Civil Procedure RulesOrder 50 rule 4

Cases cited (11)

  • Maersk Kenya Limited vs Murabu Chaka Tsuma
    Civil Appeal No. 209 of 2015
  • Royal Media Services Limited & 2 Others v Attorney General & 8 Others
    [2014] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Oraro vs Mbaja
    [2005] eKLR
  • Francis Karioko Muruatetu & Another
    [2017] eKLR
  • Kenya Bus Service Ltd & Another v Minister For Transport & 2 Others
    [2012] eKLR
  • Kalpana H. Rawal & 2 Others vs Judicial Service Commission & 3 Others
    [2016] eKLR
  • Shilouh Investments Limited vs NET & 7 Others
    [2018] eKLR
  • NET vs Overlook Management Ltd & 5 Others
    [2019] eKLR
  • Gathoni vs KCC Ltd
    Civil Application No. 122 of 1981
  • E. Torgbur vs Ladislaus Odongo Ojuok
    (2015) eKLR
On appeal from
National Environment Tribunal
Tribunal Case No. 002 of 2019
Jurisdiction invoked
Appeal from the National Environment Tribunal under the Environment Management and Coordination Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Pakwood Investments Limited & another v National Environment Management Authority & 7 others [2021] KEELC 491 (KLR)", Case Analysis (2021). ELC Civil Appeal No. 21 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/491/eng@2021-12-09

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