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ELCDismissedEnvironment and Land Appeal 11 of 2017· [2022] KEELC 12802 (KLR)

Sein & 3 others v National Environment Management Authority (NEMA) & another

Environment and Land Court
26 September 2022
4,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellants objected to an environmental impact assessment licence issued by NEMA on November 25, 2015 to Athi Water Services Board for the Kiserian sewerage system and sewerage treatment works, contending they were neither notified nor consulted. They filed an appeal to the National Environment Tribunal on June 24, 2016, out of time under section 129(1) EMCA and rule 4(2) of the NET Procedure Rules 2003, together with an application under rule 7 for extension of time. AWSB raised a preliminary objection that the appeal was time barred, that NET lacked power to extend a statutory time limit, and that the matter was sub judice given a pending ELC suit. In a ruling dated February 21, 2017, NET upheld the preliminary objection and dismissed the extension application, finding no good reason for the delay: the supporting affidavit addressed the merits of the intended appeal rather than explaining the delay, and reasons given from the bar had no evidentiary basis. On appeal, Okong'o J framed a single issue: whether NET exercised its discretion properly. Applying Patriotic Guards Ltd v Sambu and Mbogo v Shah, the court held that extension of time under rule 7 requires established good reason, that none was given, and that NET's discretion was properly exercised. Claims of bias, fraud and an inaccurate record of the tribunal's proceedings were rejected as unverifiable, with the court noting judicially that new NET members may deliver pending rulings. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether NET exercised its discretion properly in dismissing the extension of time application

Holding

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.

Reasoning

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.

p. 8
02

Whether the appeal filed out of time was incompetent and the preliminary objection properly upheld

Holding

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.

Reasoning

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.

p. 7
03

Whether claims of bias, fraud and an inaccurate record of NET proceedings warranted interference

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal filed on March 21, 2017 is dismissed with costs to the respondents

Authorities

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Legislation

  • Environmental Management and Co-ordination Act 1999 (EMCA)section 129(1), 129(2), sections 125
  • National Environment Tribunal Procedure Rules 2003rules 3, 4(1), 4(2), 7

Cases cited (2)

  • Patriotic Guards Ltd v James Kipchirchir Sambu
    Nairobi CA No 20 of 2016, [2018] eKLR

    Discretion must be exercised judiciously, upon legal principles, not on caprice or private affection.

  • Mbogo v Shah
    (1968) EA 93

    Appellate court will not interfere with exercise of discretion by an inferior court unless satisfied the decision is clearly wrong.

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

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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, "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.