Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedJudicial Review application dated 23 August 2018 (leave granted 27 August 2018), Mombasa· [2021] KEELC 3219 (KLR)

Republic v National Environmental Tribunal & another Ex parte Coconut Cave Ltd & another; Elizabeth Katisya & 2 others (Interesed Parties) [2021] KEELC 3219 (KLR)

Environment and Land Court of Kenya
17 May 2021
3,891 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

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

#
The ex parte applicants, Coconut Cave Limited and Miliki Limited, obtained leave to institute judicial review proceedings seeking certiorari to quash the decision of the National Environment Tribunal of 8 June 2018 in Appeal No. 100 of 2012, and prohibition against further hearing of the appeal. The appeal had been lodged by Anthony John Dickson against the grant of an EIA licence to Coconut Cave Limited, and later prosecuted by the interested parties, the Katisyas, against 'Carneval Village Apartments'. The court first held that Section 130(1) of EMCA, granting appeals to 'any person aggrieved', is not confined to parties before the Tribunal, expressly disagreeing with the KIPRRA decision; and that the right of appeal does not extinguish the right to seek judicial review, leave having properly been granted. On the merits, the court found that the appeal had been prosecuted against a non-existent entity which neither held the EIA licence nor owned the suit property; the Tribunal failed to confirm the correct parties, rendering the entire proceedings null and void. The proceedings and decision were quashed. The court further declared the EIA licence, issued on 2 August 2012 for two years, lapsed by effluxion of time and unusable for development; any project requires a fresh licence. Although the applicants succeeded, the court declined them costs because their director, Josef Brunlehner, had testified as a director of the non-existent entity and filed an appeal on its behalf without disclosing its non-existence; each party was ordered to bear its own costs.

Key legal issues

#
01

Whether judicial review was available notwithstanding the right of appeal under Section 130 EMCA

Holding

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

Reasoning

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.

p. 4
02

Whether the appeal was prosecuted against the correct party

Holding

No - the appeal was against Carneval Village Apartments, a non-existent entity which held neither the EIA licence nor title to the suit property

Reasoning

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.

p. 4
03

Validity of the EIA licence

Holding

The licence, issued 2 August 2012 for two years, had lapsed and could not be used; a fresh licence is required

Reasoning

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.

p. 4

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. 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. 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. 3.Each party to bear his/her own costs

Authorities

#

Legislation

  • Environment Management and Coordination Act (EMCA)Section 130(1)
  • Court of Appeal RulesRule 75(1)

Cases cited (2)

  • Kiserian Isinya Pipeline Road Resident Association (KIPRRA) & 6 Others vs Jamii Bora Charitable Trust & Another
    Nairobi High Court Civil Appeal No. 307 of 2006 (2007) eKLR
  • Law Society of Kenya Nairobi Branch vs Malindi Law Society & 6 Others
    Court of Appeal at Nairobi, Civil Appeal No. 287 of 2016 (ruling of 19 October 2017) (2017) eKLR
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.