Republic v National Environmental Tribunal & another Ex parte Coconut Cave Ltd & another; Elizabeth Katisya & 2 others (Interesed Parties) [2021] KEELC 3219 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed a tribunal ruling made against a non-existent company and declared a 2012 EIA licence expired and unusable for any development.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review was available notwithstanding the right of appeal under Section 130 EMCA
Yes - the right to appeal did not preclude judicial review; the applicants, being directly affected and non-parties at the Tribunal, were properly before the court as leave had been granted
Section 130 gives 'any person aggrieved' a right of appeal, not only parties before the Tribunal; the applicants therefore had an appeal right. But judicial review is a separate discretionary remedy not negated by appeal. Leave had been granted by Olola J, signifying the court considered judicial review appropriate, so the applicants were properly before the court.
Whether the appeal was prosecuted against the correct party
No - the appeal was against Carneval Village Apartments, a non-existent entity which held neither the EIA licence nor title to the suit property
The EIA licence was issued to Coconut Cave Limited and the suit property belonged to Miliki Limited. Josef Brunlehner testified only as a witness, and a witness is distinct from a party. With no evidence that Carneval Village Apartments existed, the entire proceedings were a nullity for violating the right to be heard.
Validity of the EIA licence
The licence, issued 2 August 2012 for two years, had lapsed and could not be used; a fresh licence is required
Environmental issues are under constant mutation, so what was assessed in 2012 may not reflect current conditions. Extension by NEMA, never sought, would not be prudent after nine years. Any development therefore requires a fresh EIA licence assessed against current environmental conditions.
Legal principles established
#- The right of appeal under Section 130 of EMCA to 'any person aggrieved' is not restricted to parties who were before the Tribunal
- The right of appeal does not take away the right to seek judicial review remedies, though the grant of leave for judicial review is discretionary and a court may refer a litigant to the appellate mechanism
- A tribunal must confirm that the correct parties are before it before proceeding; proceedings conducted against a non-existent party are null and void
- An EIA licence limited to two years lapses by effluxion of time and cannot found development without a fresh licence
Court orders
#- 1.An order of certiorari quashing the proceedings and the decision of the National Environment Tribunal rendered on 8 June 2018 in Nairobi NET Appeal No. 100 of 2012
- 2.A declaration that the EIA Licence No. 0011390 issued on 2 August 2012 has been overtaken by effluxion of time and cannot be used to undertake any development; any development requires a new EIA licence
- 3.Each party to bear his/her own costs
- Jurisdiction invoked
- Section 130(1) of the Environment Management and Coordination Act (EMCA), judicial review jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Environmental Tribunal & another Ex parte Coconut Cave Ltd & another; Elizabeth Katisya & 2 others (Interesed Parties) [2021] KEELC 3219 (KLR)", Case Analysis (2021). Judicial Review application dated 23 August 2018 (leave granted 27 August 2018), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3219/eng@2021-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.