Matus & another v National Environment Management Authority & another
The bottom line
#Kenya's Environment and Land Court ruled that a tribunal wrongly struck out an environmental appeal on a technicality, and it must now hear the case on its merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal's Preliminary Objection ruling was sustainable
The Tribunal erred in allowing the Preliminary Objection because the question of when the appeal was filed required investigation of facts, which cannot be resolved by way of a preliminary objection.
The court restated the Mukisa Biscuits and Oraro v Mbaja principles: a preliminary objection must be a pure point of law argued on the assumption that the adverse party's pleaded facts are correct. Here, the filing date of the appeal depended on contested factual evidence, including the Appellants' Further Affidavit showing electronic filing on 22nd December 2021. Such a matter could not properly be disposed of by a preliminary objection.
Whether the appeal to the Tribunal was filed within the statutory 60-day period
The Further Affidavit demonstrated that the appeal was filed electronically on 22nd December 2021, within 60 days of the EIA licence, so the Tribunal had jurisdiction.
Section 129(1) of EMCA allows an appeal to the Tribunal within sixty days after the occurrence of the event against which the person is dissatisfied. The court found it evident from the Further Affidavit that the appeal was filed electronically on 22nd December 2021, within the 60-day period following issuance of the EIA licence on 22nd October 2021, rendering the Tribunal's jurisdictional finding erroneous.
Legal principles established
#- A preliminary objection cannot be sustained where facts must be investigated or ascertained, or where the exercise of discretion is sought.
- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong due to misdirection or failure to consider relevant matters.
Court orders
#- 1.The Appeal is allowed and the ruling delivered on 28th September, 2022 by the Tribunal is set aside
- 2.The Tribunal is directed to consider the Appellants' Appeal lodged on 22nd December, 2021 and amended on 11th January, 2022
- 3.Each party to bear own costs of the Appeal
- On appeal from
- National Environment Tribunal
- Tribunal Appeal No. 1 of 2022 (NET 1/2022, originally NET/E004/2021)
- Jurisdiction invoked
- Appeal from the National Environment Tribunal under the Environmental Management and Co-ordination Act (EMCA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matus & another v National Environment Management Authority & another", Case Analysis (2023). Environment and Land Appeal E103 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20468/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.