Kopoa Developers Limited v Endesk Properties Limited & another (Environment and Land Appeal E002 of 2024) [2024] KEELC 3963 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a Tribunal order capping a Nairobi apartment tower at 12 floors, ruling the objector failed to prove environmental harm with expert evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal erred in capping the development at 12 floors when that relief was not pleaded
The Tribunal did not err; although the variation was not expressly sought, both parties canvassed the issue of capping the floors at twelve before the Tribunal, engaging the Odd Jobs v Mubea exception to the pleadings rule.
The court accepted that parties are bound by their pleadings, but noted the exception where an unpleaded issue is fully canvassed. The record showed the 1st Respondent's questionnaire response, Benson Namutali's witness statement and testimony, the Appellant's Grounds of Opposition and Eric Moses Omondi's statement all addressed capping the floors at twelve. Further, section 129(3)(a) of EMCA accords the Tribunal discretion to confirm, set aside or vary a NEMA decision.
Whether the development meets the principles of sustainable development
The Tribunal erred in finding the development did not meet sustainable development principles; the 1st Respondent's case was unsubstantiated for want of expert evidence.
The 1st Respondent's only witness, Benson Namutali, admitted he had no expertise in survey or land economics and relied on third-party information. No expert evidence or report from a duty bearer institution substantiated the alleged negative impacts on the property or social amenities. The EIA Report detailed impacts and mitigation measures, and no evidence controverted its recommendations. The Tribunal relied on anecdotal lay testimony which did not prove the negative impacts on a balance of probability.
Whether the development breached zoning regulations
Zoning determinations were outside the Tribunal's jurisdiction and no evidence of the applicable zoning regulations or breach was placed before it.
Zoning and development permission matters fall within the province of the County Government and the County Physical and Land Use Liaison Committee under the Physical and Land Use Planning Act, which provides the dispute resolution mechanism. Zoning was also not a term of the impugned EIA licence, and no regulations showing the breach were referred to the court.
Whether there was adequate public participation
The Tribunal's finding of adequate public participation despite non-compliance with some regulations was upheld.
Although the Appellant fell short of Regulation 17 requirements (two meetings instead of three, no posters, no coordinator, and NEMA did not circulate the EIA study to lead agencies), the 1st Respondent had a genuine opportunity to raise its concerns through the questionnaire response, which was received and confirmed by email. Prejudice was not established, and the test for public participation is effectiveness, not strict adherence to every mechanism.
Whether the EIA licence was self-contradictory and conflicted with the NMS development permission
The court could not consider the cross-appeal grounds as they were fresh issues never raised before the Tribunal.
The Supreme Court decision in Gitonga v Republic establishes that an appellate court lacks jurisdiction to entertain grounds raised for the first time on appeal. The self-contradiction and conflict-with-NMS-permission grounds were not argued before the Tribunal, so the court declined to consider them on the merits.
Legal principles established
#- Parties are bound by their pleadings, but a court may determine an unpleaded issue where both parties have clearly addressed it in their evidence or submissions.
- A litigant alleging environmental harm bears the burden of proof and must substantiate allegations with expert evidence or reports from duty bearer institutions.
- An appellate court has no jurisdiction to entertain a ground of appeal never raised in the lower courts.
- Zoning and development permission disputes fall outside the Tribunal's jurisdiction and must be resolved under the Physical and Land Use Planning Act.
- On a first appeal the court must re-evaluate the evidence and draw its own conclusions, while making due allowance for the trial court's advantage of seeing and hearing witnesses.
Court orders
#- 1.The National Environment Tribunal's Judgement dated 25th January 2024 is hereby set aside
- 2.The 1st Respondent's Cross-Appeal is dismissed
- 3.Each party to bear its own costs
- On appeal from
- National Environment Tribunal
- National Environment Tribunal Case No. 12 of 2023
- Jurisdiction invoked
- Section 129 of the Environment Management and Coordination Act (EMCA) - appeal from the National Environment Tribunal; first appeal
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, "Kopoa Developers Limited v Endesk Properties Limited & another (Environment and Land Appeal E002 of 2024) [2024] KEELC 3963 (KLR)", Case Analysis (2024). Environment and Land Court Appeal (Nairobi) – Memorandum of Appeal dated 31st January 2024, against National Environment Tribunal Case No. 12 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3963/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.