London Distillers (K) Limited v National Environment Management Authority & another
The bottom line
#A Kenyan court ruled that finishing construction does not end an environmental licence challenge, so the appeal must still be heard.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is not res judicata because the issues differ from those in the former application of November 4, 2020, and the documents relied on post-date that determination
The former application sought striking out on sub judice grounds; the instant one alleges the appeal is overtaken by events. The grounds have no nexus, and the completion certificates were acquired after the former application was determined on 21 May 2021, so the issues could not have been raised earlier. A new striking-out ground arising later may be raised in good faith.
Mootness / appeal overtaken by events
The appeal is not moot; the validity of the EIA licence and prayers for revocation and demolition remain live despite completion of construction
The appeal challenges the legality of the EIA licence under Sections 58, 59, 60 and 63 of EMCA. Completion of construction does not extinguish those issues; environmental matters must be tested against sustainable development under Article 10(2) of the Constitution and Section 3(5) of EMCA. The Applicant, aware of the appeal and Section 130(4) of EMCA, proceeded with construction with unclean hands to destroy the substratum.
Rights of alleged innocent purchasers vs right to fair hearing
The court cannot deny the Appellant its right of appeal under Section 130(1) of EMCA to uphold purported rights of undisclosed, unproven third-party purchasers
The Applicant provided no evidence of sale or transfer of the individual units or of the existence of the titles. The alleged purchasers are not parties. The Respondent's right to a fair hearing under Article 50 includes the right to have its appeal heard on merit.
Section 67 of EMCA (24-month challenge period)
Section 67, which concerns NEMA's power to suspend a licence for non-compliance, has no bearing on a challenge to the validity and legality of the licence
Counsel for the Applicant argued the court's hands were tied because an EIA licence can only be challenged within 24 months under Section 67. The court held that Section 67 deals with suspension for licensee non-compliance, not with the validity of the licence, and so does not bar the appeal.
Legal principles established
#- An appeal on the legality and validity of an EIA licence does not become moot merely because the impugned construction has been completed; environmental matters must be tested against sustainable development
- A party cannot benefit from its own unilateral acts taken with unclean hands to render an appeal academic; the court will not strike out an appeal on that basis
- No decision or order of the Tribunal shall be enforced until the time for lodging an appeal has expired or the appeal has been determined
Court orders
#- 1.The notice of motion dated January 13, 2023 is dismissed with costs to the respondent/appellant
- On appeal from
- National Environment Tribunal
- Nairobi NET No. 21 of 2019
- Jurisdiction invoked
- Section 130(1) of the Environmental Management and Coordination Act (appellate jurisdiction of the Environment and Land Court over NET decisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "London Distillers (K) Limited v National Environment Management Authority & another", Case Analysis (2023). Environment and Land Appeal E007 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16266/eng@2023-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.