Pattni & 8 others v National Environment Management Authority & another (Environment and Land Appeal E087 of 2022) [2024] KEELC 286 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld a Westlands building's environmental licence, ruling objections about riparian land were raised too late and without proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the EIA License was lawfully and procedurally issued
The Tribunal's finding that the license was procedurally issued was not shown to be erroneous; the new District Environment Committee consultation ground was raised for the first time on appeal and could not be entertained
The Court noted that submissions are not pleadings and that a new issue involving disputed facts not investigated at trial cannot be introduced on appeal. The District Environment Committee point first appeared in submissions and was not before the Tribunal, so the Tribunal could not be faulted for erring on an issue never placed before it.
Whether the proposed project encroached onto riparian land
The claim of encroachment was premature as it was based on proposed site plans, and Condition 4 of the License prohibited development within the 17-metre riparian reserve pegged by WRA
The 12-metre setback in the drawings was a proposal subject to further input by NEMA and lead agencies. WRA conducted a site visit, pegged a 17-metre riparian reserve from the highest water mark, and the License incorporated this as a condition. The Appellants failed to discharge the burden of proving encroachment on a balance of probabilities.
Whether the Tribunal erred in holding the Appellants did not meet the standard of proof
Having found no merit in the substantive claims, the Tribunal correctly held that the Appellants did not meet the requisite standard of proof
The burden lay on the Appellants under Sections 107, 108 and 109 of the Evidence Act to prove the facts asserted, including procedural irregularity and riparian encroachment. Since the Court found no merit in those claims, the Tribunal's finding on the balance of probabilities standard could not be disturbed.
Legal principles established
#- A first appellate court must re-evaluate the evidence and may reach its own conclusions though it has neither seen nor heard the witnesses
- A new issue of fact not raised before the Tribunal cannot be canvassed for the first time on appeal
- Grounds of appeal not addressed in submissions are deemed abandoned
- An EIA License is issued subject to conditions and before the project commences; a claim of encroachment based on proposed plans alone is premature
Court orders
#- 1.Two grounds of appeal deemed abandoned for lack of submissions
- 2.The District Environment Committee consultation issue, raised for the first time on appeal, not allowed to be canvassed
- 3.The Appeal dismissed with costs to be borne by the Appellants
- On appeal from
- National Environment Tribunal
- Appeal dated 2nd August 2021
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13(4) of the Environment and Land Court Act and Section 130 of the EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Pattni & 8 others v National Environment Management Authority & another (Environment and Land Appeal E087 of 2022) [2024] KEELC 286 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/286/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.