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ELCDismissedEnvironment and Land Appeal E071 of 2022· [2022] KEELC 13802 (KLR)

Pearl of Riverside Garden Ltd & another v National Environment Management Authority & another

Environment and Land Court at Nairobi
21 October 2022
EWE.K. Wabwoto
3,441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that appeals against NEMA environmental licences must be filed within 60 days of issuance, with no extensions.

What this practically means

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Executive summary

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The appellants, Pearl of Riverside Garden Limited and Bhavesh Harilal Gohi, appealed to the Environment and Land Court against a ruling of the National Environment Tribunal delivered on July 20, 2022, in which the tribunal struck out their appeal (NET Appeal No. 19 of 2022) against an EIA licence issued to Winchester Ventures (K) Ltd on April 12, 2022. The tribunal upheld the 2nd respondent's preliminary objection that the appeal, filed on June 13/14, 2022, was outside the 60-day period prescribed by section 129(1) of EMCA, a period the tribunal had no power to extend. The appellants argued that time should be computed by excluding the first day under the Interpretation and General Provisions Act, that the preliminary objection required a formal application supported by affidavits, and that the absence of public notice of the licence and the tribunal's unsigned ruling vitiated the decision. Wabwoto J framed three issues and held that the objection went to jurisdiction and was properly a pure point of law requiring no affidavit evidence; that, following Runda Association v NEMA, time under section 129(1) runs from the date the licence was issued and cannot be extended by the tribunal or the ELC; and that the appeal was therefore devoid of merit. The court dismissed the appeal with costs to the 2nd respondent. Obiter, the judge urged NEMA to develop a clear framework for notifying the public of its statutory decisions, noting NEMA's non-participation in the proceedings.

Key legal issues

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01

Whether the preliminary objection upheld by the tribunal was a pure point of law

Holding

The tribunal did not err; the objection that the appeal was filed out of time went to jurisdiction and required no affidavit evidence

Reasoning

Relying on Mukisa Biscuit, Nitin Properties, Joho and Cheperenger, the court held that an objection that an appeal was filed outside the statutory 60-day period under section 129(1) of EMCA raises a pure point of law going to jurisdiction, which may be disposed of without a formal application supported by affidavits.

p. 6
02

Computation of the 60-day period under section 129(1) of EMCA

Holding

Time runs from the date the licence was issued, not the following day; the appeal filed on June 13, 2022 against a licence issued April 12, 2022 was out of time

Reasoning

Following Runda Association v NEMA, the court held that the statutory 60-day period starts on the date of issuance of the licence and cannot be extended by the tribunal or the ELC. The appellants' reliance on the Interpretation and General Provisions Act to exclude the first day was rejected.

p. 7
03

Whether the appeal was merited

Holding

The appeal lacked merit and was dismissed

Reasoning

Having reviewed the grounds of appeal and submissions, the court found no error in the tribunal's ruling striking out the appeal for want of jurisdiction, the appeal having been filed outside the statutory period.

p. 7

Legal principles established

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  • Time under section 129(1) of EMCA runs from the date the EIA licence is issued, and the 60-day statutory period cannot be extended by the tribunal or the ELC
  • A preliminary objection on want of jurisdiction, such as an appeal filed out of time, is a pure point of law requiring no formal application supported by affidavits

Court orders

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  1. 1.The appeal is dismissed with costs to the 2nd respondent

Authorities

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Legislation

  • Environmental Management and Co-ordination Actsection 129(1)
  • Interpretation and General Provisions Act, cap 2section 57(a-c)
  • National Environment Tribunal Rules, 2003rule 9
  • Environmental (Impact Assessment and Audit) Regulations 2003regulation 46(1)

Cases cited (10)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696

    Definition of what constitutes a preliminary objection

  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR

    A preliminary objection raises a pure point of law on assumed facts

  • Oraro –v- Mbaja
    [2007] KLR 141

    Echoing the principle on preliminary objections

  • Hassan Ali Joho & another v Suleiman Said Shabal & 2 others
    SCK Petition No 10 of 2013 [2014] eKLR

    Preliminary objection as a point of law arising from pleadings

  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR

    Proper purpose of preliminary objections; not to be used as a sword

  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    [1989] KLR 1

    Meaning of jurisdiction; court downs tools where it lacks jurisdiction

  • Samuel Kamau Macharia v Kenya Commercial Bank & 2 others
    Civil Appl No 2 of 2011

    Jurisdiction flows from Constitution or legislation; cannot be expanded by judicial craft

  • Runda Association –v- National Environment Management Authority & 3 others
    (2020) eKLR

    Time under section 129(1) EMCA runs from date of licence issuance and cannot be extended

  • Simba Corporation Limited v Director General, NEMA
    [2017] eKLR

    Need for NEMA to notify the public of its decisions

  • Mbuni Dry Cleaners Ltd v George Mugo Kagenda
    Civil Appeal Number 53 of 2006

    Computation of time cited by appellants

On appeal from
National Environment Tribunal at Nairobi
NET Appeal No. 19 of 2022
Jurisdiction invoked
Appeals from the National Environment Tribunal under the Environmental Management and Co-ordination Act (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, "Pearl of Riverside Garden Ltd & another v National Environment Management Authority & another", Case Analysis (2022). Environment and Land Appeal E071 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13802/eng@2022-10-21

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