Mombasa Gas Terminal Ltd v National Environment and Management Authority & 4 others (Environment and Land Appeal E040 of 2022) [2024] KEELC 4061 (KLR)
The bottom line
#The Environment and Land Court dismissed Mombasa Gas Terminal's appeal, upholding the tribunal's decision to reinstate community appeals and join residents over the gas plant project.
What this practically means
#Executive summary
#Key legal issues
#Standard of hearing a first appeal from the tribunal
The court acts as if by retrial, re-evaluating the evidence but with due allowance for not having seen or heard the witnesses.
The court adopted the classic Selle principles, reinforced by Ephantus Mwangi and Kenya Ports Authority v Kuston, to justify its own re-evaluation of the tribunal record rather than deference to the tribunal's findings.
Whether the tribunal erred in allowing the 2nd respondent's affidavit and rejecting the forgery allegation
The tribunal did not err; forgery was not proved and grounds of opposition could not controvert sworn averments.
The forgery challenge was first raised in the application dated 25th May 2021, not in the earlier review application. The appellant only filed grounds of opposition, which address law alone; without a replying affidavit the sworn averments stood unrebutted. No handwriting or forensic evidence supported the forgery claim.
Whether tribunal proceedings were conducted irregularly (pre-trial timelines, s.130(2) EMCA stay)
No irregularity; the tribunal accommodated parties' timelines and the s.130(2) stay point was moot because proceedings had already been stayed.
Directions of 7th July 2021 and later dates show parties were given adequate time to file replies and submissions. Section 130(2) EMCA bars enforcement of tribunal decisions until appeal time expires; since proceedings were stayed, there was no decision to enforce, so no basis to fault the tribunal.
Joinder of the seven intended appellants via the application dated 23rd June 2021
The tribunal properly allowed joinder on public interest grounds given the gas plant's effect on about 10,000 people and the death of the community leader.
The joinder was not a substitution for the deceased 2nd appellant. The tribunal's public-interest reasoning was not shown to be erroneous, and the appellant failed to demonstrate any error of fact or law in that determination.
Legal principles established
#- On a first appeal the court reconsiders and evaluates the evidence afresh while making due allowance for not having seen or heard the witnesses
- Grounds of opposition address only issues of law and cannot amount to a proper denial of allegations made on oath; unchallenged sworn averments are taken as true
- A party who alleges forgery must prove it
Court orders
#- 1.The appellant's appeal is without merit and is hereby dismissed
- 2.The tribunal finding and orders of 24th May 2022 in respect of the applications dated the 25th May 2021 and 23rd June 2021 are upheld
- 3.The costs in this appeal to abide the outcome of NET Appeal No. 9 of 2019
- On appeal from
- National Environment Tribunal
- Net Appeal No. 9 of 2019
- Jurisdiction invoked
- First appeal from the National Environment Tribunal under the Environmental Management and Coordination Act, 1999 (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, "Mombasa Gas Terminal Ltd v National Environment and Management Authority & 4 others (Environment and Land Appeal E040 of 2022) [2024] KEELC 4061 (KLR)", Case Analysis (2024). Net Appeal No. 9 of 2019 (appeal therefrom; memorandum of appeal dated 30th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4061/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.