Kamau Mucuha & 35 others v National Environment Management Authority & another [2021] KEELC 1778 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case for injunction pending appeal
No prima facie case established; the underlying appeal to the Tribunal was time-barred under Section 129(1) EMCA, the licence having been issued on 24th October 2019 and the appeal filed on 3rd July 2020
The central grievance was the NEMA licence, so the Tribunal appeal fell under Section 129(1) EMCA requiring filing within 60 days. Following David Awuori, the date of knowledge is immaterial. The appeal being incompetent, the applicants could not demonstrate a right apparently infringed or probability of success per Nguruman and Mrao.
Irreparable loss
Not proved; allegations of Covid-19 exposure, air/noise pollution and devaluation of property were unsupported by scientific, medical or valuation evidence
The applicants tendered no traffic data, no medical or public health evidence of Covid-19 exposure, no expert evidence of air pollution, and no report from a registered valuer on devaluation. The court applied Kibos Distillers on the need for scientific evidence linking activities to environmental harm and Nguruman on the nature of irreparable injury.
Balance of convenience
Tilts in favour of the 2nd Respondent, the registered proprietor who procured the requisite licences and approvals before commencing development
The 2nd Respondent is the registered and beneficial owner entitled to the rights of ownership under Sections 24 and 25 of the Land Registration Act. The change of use was duly gazetted and approved, and the NEMA licence remained valid, not suspended or revoked, so the development was within the law.
Legal principles established
#- An appeal to the National Environment Tribunal challenging the grant of a NEMA licence under Section 129(1) of EMCA must be filed within sixty days of the decision, and the date the appellant became aware of the decision is immaterial
- Allegations of environmental harm and irreparable loss must be supported by scientific and empirical evidence, not mere assertion
- A registered proprietor is entitled to develop the suit property subject only to lawful limitations
Court orders
#- 1.The Notice of Motion application dated 12th April 2021 is dismissed
- 2.Costs of the application awarded to the 2nd Respondent; the 1st Respondent, having filed no pleadings or submissions, is not entitled to costs
- On appeal from
- National Environment Tribunal
- Jurisdiction invoked
- Appellate jurisdiction under Order 42 Rule 6(6) of the Civil Procedure Rules, 2010, in respect of an appeal from the National Environment Tribunal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau Mucuha & 35 others v National Environment Management Authority & another [2021] KEELC 1778 (KLR)", Case Analysis (2021). Notice of Motion dated 12th April 2021 (Appeal from National Environment Tribunal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1778/eng@2021-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.