Sein & 3 others v National Environment Management Authority (NEMA) & another
The bottom line
#The Environment and Land Court confirmed that missing the 60-day deadline to appeal a NEMA licence kills the appeal unless you prove a good reason for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether NET exercised its discretion properly in dismissing the extension of time application
NET did exercise its discretion properly; the appellants gave no good reason for the delay either in the application or the supporting affidavit, so there was no basis to interfere.
Rule 7 permits extension only for good reason shown. The supporting affidavit of Constance Kone Ole Sein addressed the merits of the intended appeal rather than explaining the delay, and reasons advanced from the bar had no evidentiary basis. NET considered the matter judiciously and found no good reason. Following Patriotic Guards Ltd v James Kipchirchir Sambu and Mbogo v Shah, the court will not interfere with a discretionary decision unless it is clearly wrong, which was not shown here.
Whether the appeal filed out of time was incompetent and the preliminary objection properly upheld
Once the extension application was dismissed, the appeal filed outside the 60-day period under section 129(1) EMCA and rule 4(2) of the Rules was incompetent and NET rightfully upheld the preliminary objection.
Section 129(1) EMCA and rule 4(2) of the NET Procedure Rules 2003 require an appeal against the grant of a licence to be filed within 60 days. The appeal was filed on June 24, 2016, over seven months after the licence issued on November 25, 2015. With extension refused, the out-of-time appeal was incompetent and the objection to it was properly upheld.
Whether claims of bias, fraud and an inaccurate record of NET proceedings warranted interference
The claims had no merit; they could not be ascertained from the record, and new NET members may deliver a pending ruling in a matter heard by members whose term has ended.
The appellants alleged that the ruling was signed by members who did not hear the application and that the record was inaccurate. The court found these claims unverifiable on the record and took judicial notice that NET members serve fixed terms, so nothing prevents new members from delivering a pending ruling in a matter heard by their predecessors.
Legal principles established
#- Discretionary powers must be exercised judiciously and not capriciously, and an appellate court will not interfere with the exercise of discretion by an inferior tribunal unless satisfied the decision is clearly wrong.
- Extension of time under rule 7 of the NET Procedure Rules can only be granted for good reason shown, which must be established on evidence.
Court orders
#- 1.The appeal filed on March 21, 2017 is dismissed with costs to the respondents
- On appeal from
- National Environment Tribunal
- Jurisdiction invoked
- Appeal from the National Environment Tribunal under the Environmental Management and Co-ordination Act, 1999 (EMCA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sein & 3 others v National Environment Management Authority (NEMA) & another", Case Analysis (2022). Environment and Land Appeal 11 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12802/eng@2022-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.