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ELCDismissedNET Appeal No. 10 of 2022 (appeal against ruling of 14th April 2022 in NET Appeal No. 10 of 2022)· [2024] KEELC 4360 (KLR)

Mathu, Chairman & 2 others (All Jointly suing as and on behalf of Kyuna Neighbours Association (KNA) v National Environment Management Authority (NEMA) & another; Director General, Nairobi Metropolitan Services (Interested Party) (Environment and Land Appeal E032 of 2022) [2024] KEELC 4360 (KLR)

Environment and Land Court
30 May 2024
OAO. A. Angote
6,121 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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NEMA licence appeals must be filed within 60 days under Section 129(1) EMCA — the court dismissed a residents' association's late appeal with costs.

What this practically means

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Executive summary

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The Appellant, a residents' association, appealed to the Environment and Land Court against a ruling of the National Environment Tribunal dated 14th April 2022, in which the Tribunal struck out its appeal against NEMA's issuance of EIA licence Ref. NEMA/EIA/PSL/10439 for a proposed school development on Plot LR No. 1758/2 Kyuna, Nairobi, on the ground that the appeal was filed out of time under Section 129(1) EMCA. The Appellant contended the preliminary objection was filed out of time under Rule 9 of the NET Procedure Rules, was defective for raising factual disputes, and that its appeal fell under Section 129(2) EMCA relying on precedents distinguishing dual streams of locus standi. The court, as first appellate court, re-evaluated the material and identified three issues. It held the Tribunal properly exercised its discretion to admit the out-of-time objection, applying Mbogo v Shah and Article 159(1)(d), and that no prejudice was suffered. On the central issue, the court traced the amendments to Section 129 and held that the 2015 amendment expanded locus standi such that any person aggrieved by the grant of a licence, whether or not they participated in the licensing process, appeals under Section 129(1), which imposes a 60-day limit from the event; Section 129(2) concerns other NEMA decisions not covered by Section 129(1). The court expressly declined to follow Odunga J's contrary holding in the Zubeidi case and found the Appellant's appeal before the Tribunal fell under Section 129(1) and was time-barred. The appeal was dismissed with costs to be borne by the Appellant.

Key legal issues

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01

Whether the Tribunal erred in admitting the 2nd Respondent's Notice of Preliminary Objection filed out of time under Rule 9 NET Procedure Rules

Holding

The Tribunal properly exercised its discretion to admit the objection out of time, in line with Article 159(1)(d), and no prejudice was suffered by the Appellant who opposed it in submissions

Reasoning

The court applied Mbogo v Shah on non-interference with discretionary decisions. The Tribunal considered the Rule 9 timelines and its duty under Article 159(1)(d) to administer justice without undue regard to procedural technicalities. The Appellant had notice and opportunity to oppose the objection through submissions dated 25th August 2021, so no prejudice was suffered, and the objection was properly filed and admitted.

p. 8
02

Whether the appeal fell under Section 129(1) or Section 129(2) of EMCA

Holding

The appeal fell under Section 129(1) EMCA; the 2015 amendment expanded locus standi so that any person aggrieved by the grant of a licence may appeal under Section 129(1), whether or not they participated in the licensing process

Reasoning

The court traced the three amendments to Section 129 and held the 2015 amendment changed the language of Section 129(1)(a) to expand standing to any person aggrieved by the grant of a licence, irrespective of participation. The court declined to follow Odunga J's narrower reading and distinguished the dual-stream approach in Simba Corporation and Prof Albert Mumma. Section 129(2) concerns other decisions not covered under Section 129(1).

p. 11
03

Whether the preliminary objection raised factual disputations requiring evidence

Holding

The time-limitation objection was a pure issue of law and was rightly admitted for determination

Reasoning

From the pleadings the Appellant was not part of the licence issuance process, facts not contested, and the challenge concerned the grant of licence Ref NEMA/EIA/PSL/10439 dated 26th March 2021, making the appeal fall under Section 129(1) and rendering the limitation question a pure point of law determinable without evidence.

p. 8

Legal principles established

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  • An 'aggrieved person' under Section 129(1)(a) EMCA is not limited to persons who participated in the licensing process; all appeals with respect to licensing should be filed under Section 129(1) regardless of participation
  • Section 129(2) EMCA deals with decisions of the Director-General, the Authority, Committees or agents not covered under Section 129(1), not with licensing decisions
  • An appellate court will not interfere with the exercise of discretion by a trial court/tribunal unless the determination is clearly wrong or based on wrong principles

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Appellant shall bear the costs of this Appeal

Authorities

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Legislation

  • Environmental Management and Coordination Act, 1999 (EMCA)Section 129(1) and (2)
  • Environmental Management and Coordination Act, 1999 (EMCA)Section 126(5)
  • Environmental Management and Coordination Act, 1999 (EMCA)Section 58(2)
  • Environmental Management and Coordination Act, 1999 (EMCA)Sections 3, 4, 7
  • Environmental Management and Coordination Act, 1999 (EMCA)Section 130
  • Environmental Management and Co-ordination (Amendment) Act, 2015Amendment to Section 129(1)(a)
  • Prevention of Torture Act, 2017Section 29
  • Statute Law (Miscellaneous Amendments) Act, 2018Section 29 / amendment to Section 129
  • Environment and Land Court ActSection 13(4)
  • Fair Administrative Actions Act, 2015Sections 3, 4 and 7
  • National Environmental Tribunal (Procedure) Rules, 2003Rules 3, 4(1) and (2), 7, 9(1)-(3)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 11, 16, 17, 20 and Paragraphs 17(1), (2), 20, 21, 22
  • Constitution of Kenya, 2010Articles 40, 42, 47, 50(1), 69, 159(1), 159(1)(d), 162(2)(b)

Cases cited (17)

  • Prof Albert Mumma v Director General, NEMA & 2 others and the SDA Church E.A. Ltd
    [2021] eKLR
  • Simba Corporation Limited v National Environment Management Authority (NEMA)
    [2017] eKLR
  • John Kabukuru Kibicho & another v County Government of Nakuru & 2 others
    [2016] eKLR
  • National Environment Tribunal v Overlook Management Ltd & 5 others
    [2019] eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    [2014] eKLR
  • Runda Gardens Residents Association (RGRA) vs NEMA & Registered Trusteed of the Foundation Gate Church
  • Geofirey M. Asanyo & 3 others v Attorney General
    [2020] eKLR
  • Republic vs Chairman Political Parties Disputes Tribunal & 2 Others ex parte Susan Kihika Wakarura
    [2017] eKLR
  • Pakwood Investments Limited and another vs National Environment Management Authority & 7 others
    [2021] eKLR
  • Habib NIC Bank Limited vs Nashitex International Limited
  • Oraro vs Mbaja
    [2005] 1 KLR 141
  • Selle & Another vs Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
  • Peter M. Kariuki vs Attorney General
    [2014] eKLR
  • Khalid Salim Abdulsheikh vs Swaleh Omar Said
    [2019] eKLR
  • Mbogo and Another vs Shah
    [1968] EA 93
  • Republic vs National Environment Tribunal & 2 others Ex-parte Abdulhafidh Sheikh Ahmed Zubeidi
    [2013] eKLR
  • Republic vs. National Environmental Tribunal, ex parte Ol Keju Ronkai Limited & Another
On appeal from
National Environment Tribunal
NET Appeal No. 10 of 2022
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 Environmental Management and Coordination Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mathu, Chairman & 2 others (All Jointly suing as and on behalf of Kyuna Neighbours Association (KNA) v National Environment Management Authority (NEMA) & another; Director General, Nairobi Metropolitan Services (Interested Party) (Environment and Land Appeal E032 of 2022) [2024] KEELC 4360 (KLR)", Case Analysis (2024). NET Appeal No. 10 of 2022 (appeal against ruling of 14th April 2022 in NET Appeal No. 10 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4360/eng@2024-05-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.