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ELCDismissedNotice of Motion dated 12th April 2021 (Appeal from National Environment Tribunal)· [2021] KEELC 1778 (KLR)

Kamau Mucuha & 35 others v National Environment Management Authority & another [2021] KEELC 1778 (KLR)

Environment and Land Court
24 September 2021
4,764 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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What this practically means

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Executive summary

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The Appellants/Applicants moved the Environment and Land Court by Notice of Motion dated 12th April 2021 seeking a temporary injunction restraining the 2nd Respondent from continuing construction on L.R. No. 3734/991 along Ndoto Road, Lavington, pending the hearing and determination of an appeal from the National Environment Tribunal, whose ruling of 24th December 2020 struck out their appeal. The application was supported by the affidavit of Billy Aludo; the 2nd Respondent opposed through a replying affidavit of Rev. Naftaly Gitonga Mugiira, while the 1st Respondent (NEMA) filed no pleadings or submissions. Framing three issues - prima facie case, irreparable loss and balance of convenience - and applying Giella v Cassman Brown and Nguruman, the court found no prima facie case: the Applicants' core grievance was the NEMA licence issued on 24th October 2019, so their Tribunal appeal fell under Section 129(1) of EMCA and, having been filed on 3rd July 2020, was long out of the statutory 60-day window. On irreparable loss, the court held that claims of Covid-19 exposure, air and noise pollution and property devaluation lacked scientific, medical or valuation evidence, following Kibos Distillers on the need for empirical proof. The balance of convenience favoured the 2nd Respondent as registered proprietor with valid licences and approvals. The application was dismissed with costs to the 2nd Respondent; the 1st Respondent, having filed nothing, received no costs.

Key legal issues

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01

Prima facie case for injunction pending appeal

Holding

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

Reasoning

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.

p. 4
02

Irreparable loss

Holding

Not proved; allegations of Covid-19 exposure, air/noise pollution and devaluation of property were unsupported by scientific, medical or valuation evidence

Reasoning

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.

p. 5
03

Balance of convenience

Holding

Tilts in favour of the 2nd Respondent, the registered proprietor who procured the requisite licences and approvals before commencing development

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 12th April 2021 is dismissed
  2. 2.Costs of the application awarded to the 2nd Respondent; the 1st Respondent, having filed no pleadings or submissions, is not entitled to costs

Authorities

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Legislation

  • Law of Evidence Act, Chapter 80 (Laws of Kenya)Sections 106A and 106B
  • Environment Management and Coordination Act (EMCA) 1999 (2015)Section 129(1)
  • Civil Procedure Rules, 2010Order 40
  • Civil Procedure Rules, 2010Order 42 Rule 6(6)
  • Land Registration Act 2012Sections 24 and 25
  • National Environment Tribunal Procedure Rules, 2003Rule 4

Cases cited (5)

  • Giella v Cassman Brown
    (1973) E.A.
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • David Awuori & 2 Others on behalf of Gigiri Village Association v Director General (NEMA)
    (2018) eKLR
  • Kibos Distilers Limited & Others v Benson Ambuti & Others
    (2020) eKLR
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

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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, "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.