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ELCPartially AllowedNot stated in the extract (Chamber Summons Application dated 14th June 2021)· [2022] KEELC 2245 (KLR)

Syokimau Residents Association & 3 others v National Environmental Management Authority; Endmor Steel Millers Limited & another (Interested Party) (Environment and Land Miscellaneous Application E012 of 2021) [2022] KEELC 2245 (KLR)

Environment and Land Court
19 May 2022
2,738 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed residents to pursue mandamus forcing NEMA to enforce an environmental tribunal judgment, but refused to halt licence renewals.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on two preliminary objections - one by the 1st Interested Party dated 5th July 2021 and one by the Respondent dated 6th July 2021 - to a Chamber Summons dated 14th June 2021 in which the ex parte Applicants sought leave to apply for an order of mandamus compelling the Respondent to carry out stack emission, ambient air quality and noise emission tests on the 2nd Interested Party's factory in compliance with a National Environmental Tribunal judgment of 18th December 2020 in NET Appeal No. 3 of 2019, and further sought that any leave operate as a stay of decisions to renew EIA and stack emission licenses. The 1st Interested Party objected on grounds of lack of jurisdiction (EMCA vesting jurisdiction in the Tribunal), limitation, absence of leave for judicial review, and that the suit was a back-door appeal from the Tribunal. The Respondent objected under Section 7 of the Fair Administrative Action Act. The court held that judicial review is concerned with process, not merits; that under the FAA Act and Article 47 of the Constitution no leave is required and no limitation timelines apply; that the Applicants have locus standi under Article 22; and that the court has jurisdiction under Section 13 of the Environment and Land Court Act. Both preliminary objections were dismissed and leave was granted for 21 days to file the substantive motion, but the prayer for stay was refused for failure to demonstrate prejudice. Costs were left in the cause.

Key legal issues

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01

Whether the court lacks jurisdiction because EMCA vests special jurisdiction in the Tribunal

Holding

The court has jurisdiction under Section 13 of the Environment and Land Court Act; the suit is not a back-door appeal but a mandamus application to enforce a NET judgment.

Reasoning

The court distinguished between appealing a Tribunal decision and compelling a public body to implement it. The Applicants seek mandamus to compel the Respondent to carry out emission tests in compliance with the NET judgment, not to overturn it. The court held jurisdiction vests in it under Section 13 of the Environment and Land Court Act.

p. 6
02

Whether the suit is time-barred and whether leave is required for judicial review

Holding

The suit is not statute-barred; under the FAA Act and Article 47 no leave is required, and no timelines are prescribed; in any event the Applicants were entitled to leave.

Reasoning

Relying on Section 11(a) and (f) of the Fair Administrative Action Act and Article 47, the court found that no timelines are provided for such applications, so the limitation objection fails. Although leave is not required under the FAA Act, the court held the Applicants were entitled to leave since they had sought it, the application merely seeking enforcement of a NET judgment.

p. 5
03

Whether the Applicants have locus standi

Holding

The Applicants have locus standi in accordance with Article 22 of the Constitution.

Reasoning

The 1st Interested Party had argued the 1st Applicant lacked capacity and the ex parte Applicants were merely interested parties in the earlier proceedings. The court disagreed, grounding standing in Article 22 of the Constitution and Section 3(3) of EMCA as cited by the Applicants.

04

Whether leave should operate as a stay

Holding

Stay declined; the Applicants failed to demonstrate prejudice or the licensing position of the 1st Interested Party.

Reasoning

The court noted the Applicants sought that leave operate as a stay of any decision to renew EIA and Stack Emission Licenses. From the verifying affidavit, the Applicants did not show what prejudice they would suffer absent a stay, nor did they explain the current status of the 1st Interested Party's licenses. The court therefore declined the stay order.

p. 6

Legal principles established

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  • Under the Fair Administrative Action Act and Article 47 of the Constitution, a party does not require leave to institute proceedings for judicial review; the FAA Act provisions on such applications do not prescribe limitation timelines.
  • Judicial review is concerned with the process, not the merits, of a decision.

Court orders

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  1. 1.The two Notices of Preliminary Objection dated 5th July 2021 and 6th July 2021 are dismissed as unmerited
  2. 2.Leave granted to the Applicants to file and serve the substantive motion on Judicial Review within 21 days
  3. 3.Prayer that leave operate as a stay of any decision to renew Environmental Impact Assessment and Stack Emission Licenses declined
  4. 4.Costs in the cause

Authorities

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Legislation

  • Environmental Management and Coordination Act (EMCA)Section 130; Section 130(1); Section 3(3)
  • Fair Administrative Action ActSection 7; Section 7(3); Section 11(a) and (f); Section 10(2); Section 13(1)
  • Constitution of KenyaArticle 22; Article 47; Article 48; Article 159(3)(c) & (d)
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 53 Rule 1
  • Land Registration Act (LR Act)Sections 8 and 9

Cases cited (23)

  • Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    1969 E.A.696
  • Wavinya Ndeti V Independent Electoral & Boundaries Commission (IEBC) & 4 others
    [2014] eKLR
  • Republic vs National Environmental Management Authority
    CA 84/2010
  • Mutanga Tea & Coffee Company Ltd V Shikara Limited & another
    [2015] eKLR
  • Raila Odinga & 6 others vs Nairobi City Council
    Nairobi HCCC No. 899 of 1993; (1990-1994) EA 482
  • Republic v Kiambu Land Dispute Tribunal & 2 others ex parte Wambui Chege Macharia & 2 others
    [2016] eKLR
  • Republic v Chief Magistrate's Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); ex-parte Applicant: Pravin Galot
    [2020] eKLR
  • Republic v Kenyatta University Ex parte Martha Waihuini Ndungu
    [2019] eKLR, Miscellaneous Civil Application 111 of 2018
  • Republic v University of Nairobi & 3 others Ex parte Patrick Best Oyeso
    [2018] eKLR, Judicial Review Miscellaneous Application 562 of 2017
  • J K Patel vs Spear Motors Ltd
    SCCA No. 4 of 1991 [1993] VI KALR 85
  • Republic vs Kenya National Examinations Council ex parte Gathenji & others
    Civil Appeal No. 266 of 1996
  • National Environmental Tribunal v Overlook Management Limited & 5 others
    (2019) eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    (2012) eKLR
  • Sustainable Energy Systems Limited V Kenya Forest Service
    (2017) eKLR
  • Republic v National Land Commission & 2 others; Kakuzi Division Development Association & 6 others (Interested Parties) Ex parte: Kakuzi PLC
    (2020) eKLR
  • Republic v Kiambu County Executive Committee & 3 others ex parte James Gacheru Kariuki & 9 others
    Judicial Review No. 4 of 2016, (2017) eKLR
  • Mohammed Abey Mohamed & another v Cabinet Secretary for Ministry of Interior and Coordination of National Government & 4 others
    (2021) eKLR
  • Republic v Speaker of the Senate & Another ex parte Afrison Export Import Limited & another
    (2018) eKLR
  • Republic v Speaker of Nairobi City County Assembly & another ex parte Evans Kidero
    (2017) eKLR
  • Republic vs Public Procurement Administrative Review Board ex parte Syner-Chemie
    (2016) eKLR
  • Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy
    [2014] eKLR
  • Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae)
    [2021] eKLR
  • Britestone Pte Ltd v Smith & Associates Far East Ltd
    [2007] SGCA 47
Jurisdiction invoked
Section 13 of the Environment and Land Court Act

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, "Syokimau Residents Association & 3 others v National Environmental Management Authority; Endmor Steel Millers Limited & another (Interested Party) (Environment and Land Miscellaneous Application E012 of 2021) [2022] KEELC 2245 (KLR)", Case Analysis (2022). Not stated in the extract (Chamber Summons Application dated 14th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2245/eng@2022-05-19

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