Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Appeal E103 of 2022· [2023] KEELC 20468 (KLR)

Matus & another v National Environment Management Authority & another

Environment and Land Court
28 September 2023
2,253 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
This was an appeal to the Environment and Land Court at Nairobi from a ruling of the National Environment Tribunal delivered on 28th September 2022, in which the Tribunal upheld the 1st Respondent's (NEMA's) Preliminary Objection and struck out the Appellants' appeal against the issuance of an EIA licence to Intex Construction, finding the appeal filed out of the statutory 60-day period under Section 129(1) of the Environmental Management and Co-ordination Act. The Appellants contended their Notice of Appeal was filed electronically on 22nd December 2021 (referenced NET/E004/2021, later reassigned NET 1/2022), within time, as shown by a Further Affidavit sworn by Oscar Litoro. They sought setting aside of the Tribunal's ruling and remittal for determination on merits. Wabwoto J restated the classic principles on preliminary objections from Mukisa Biscuits, Oraro v Mbaja and IEBC v Cheperenger, holding that a preliminary objection cannot be sustained where underlying facts require investigation. The court found the Further Affidavit demonstrated electronic filing on 22nd December 2021, within 60 days of the EIA licence, and concluded the Tribunal erred in allowing the Preliminary Objection. Applying Mbogo v Shah, the court held there was a clear basis to interfere. The appeal was allowed, the Tribunal's ruling set aside, and the Tribunal directed to consider the Appellants' appeal; each party was ordered to bear its own costs, the error having been occasioned by the Tribunal.

Key legal issues

#
01

Whether the Tribunal's Preliminary Objection ruling was sustainable

Holding

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.

Reasoning

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.

p. 4
02

Whether the appeal to the Tribunal was filed within the statutory 60-day period

Holding

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.

Reasoning

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. 1.The Appeal is allowed and the ruling delivered on 28th September, 2022 by the Tribunal is set aside
  2. 2.The Tribunal is directed to consider the Appellants' Appeal lodged on 22nd December, 2021 and amended on 11th January, 2022
  3. 3.Each party to bear own costs of the Appeal

Authorities

#

Legislation

  • Environmental Management and Co-ordination ActSection 129(1)

Cases cited (8)

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

    Definition and limits of a preliminary objection - a pure point of law on assumed facts.

  • Oraro v Mbaja
    [2004] eKLR

    A matter requiring investigation of facts cannot be raised as a preliminary point.

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

    Circumstances in which a preliminary objection may be raised; impropriety of using it as a sword.

  • Mbogo v Shah & Another
    [1968] EA 93

    Parameters for interference with the exercise of discretion by an inferior court.

  • Samuel Kamau Macharia vs. KCB & 2 Others
    Civil Application No. 2 of 2011

    Cited by the Respondent on filing out of statutory period.

  • Runda Association v National Environmental Management Authority (NEMA) & 3 Others
    Tribunal Appeal No. 060 of 2019

    Cited by the Respondent on the 60-day filing period.

  • Judith Kamau v Director General, NEMA & 2 others
    [2021] eKLR

    Cited by the Respondent on the 60-day filing period.

  • Simba Corporation Limited v Avic International & Another
    ELC Case No. 100 of 2015

    Cited by the Respondent for want of Tribunal jurisdiction where appeal filed out of time.

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.