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ELCDismissedNotice of Motion Application dated 8th May 2024· [2024] KEELC 7497 (KLR)

Nairobi Waldorf School Trust v National Environment Management Authority & another (Environment & Planning Appeal E009 of 2024) [2024] KEELC 7497 (KLR)

Environment and Land Court
31 October 2024
1,356 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to pause an order revoking a school's EIA licence, holding that money cannot secure compliance with environmental law.

What this practically means

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Executive summary

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The Applicant, an educational institution, moved the Court by Notice of Motion dated 8th May 2024 under Article 159 of the Constitution, Sections 1A, 1B, 3A, 22 and 100 of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, seeking stay of execution of the judgment of the National Environment Tribunal delivered on 12th March 2024 in NET No. 4 of 2023. The Tribunal had revoked EIA licence NEMA/EIA/PSL/22968 dated 29th November 2022, stopped construction of semi-permanent classrooms, a dining hall and associated amenities on Plot LR No. 7336/76, and restrained further development until a proper EIA licence was issued. The Applicant argued it needed classrooms for 300 minors and relied on public interest in children's access to education, asserting mitigation measures and that a fresh EIA licence process had commenced. The 2nd Respondent opposed, contending the application was incompetent, an abuse of process, marked by inordinate delay, and that no competent appeal, new licence, or substantial loss had been demonstrated. Framing the sole issue as whether the application was merited, the court applied Order 42 Rule 6 and Carter & Sons Ltd v Deposit Protection Fund Board. It found the notice of appeal was filed within time, so the delay threshold was 'half way met', but held no security had been offered and that the Tribunal's orders were negative orders quenchable only through issuance of a new EIA licence, rendering any security insufficient, particularly as the claim was brought representatively. The court dismissed the application in its entirety.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The application failed. Although the notice of appeal was filed within one month so the delay threshold was 'half way met', no security for costs was offered and no evidence showed a new EIA licence was being procured; the Tribunal's orders were of a nature that could not be stayed by an award of costs.

Reasoning

The court applied Order 42 Rule 6, which requires substantial loss, absence of unreasonable delay, and security for due performance of the decree. Filing the notice of appeal within time only partly satisfied the delay condition. On security, the court reasoned that the Tribunal's orders - revocation of the EIA licence and stoppage of construction - were negative orders achievable only through issuance of a fresh licence, so monetary security could not suffice. Further, the claim was brought by a representative of an association, not for personal gain, weakening any compensability rationale. No evidence supported the claim that a new licence process had commenced.

p. 4
02

Whether the public interest in the education of 300 minors justified a stay

Holding

The public interest argument failed because the Applicant produced no evidence of mitigation measures or of the commencement of the process to acquire a new EIA licence.

Reasoning

The Applicant contended that the stay was needed to protect the rights of children to classrooms and essential amenities, and asserted that mitigation was in place and that the process to acquire a new EIA licence had begun. The court held that EIA licensing is a technical, in-depth process requiring exhaustive ventilation, and found the assertions unsupported by any evidence before the court. The submission therefore did not displace the statutory requirement of demonstrating compliance with the licensing regime.

p. 4

Legal principles established

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  • Under Section 67(2) of EMCA, once an EIA licence is revoked the holder may not proceed with the project until a new licence is issued, and stay of such a revocation cannot be secured by an award of costs
  • A negative or prohibitory order such as a stoppage of construction pending a lawful EIA licence is incapable of being stayed by furnishing security, as doing so would sanction non-compliance

Court orders

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  1. 1.The Notice of Motion dated 8th May 2024 is dismissed in its entirety

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3A, 22 and 100
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 42 Rule 6
  • Environmental Management and Co-ordination Act (EMCA)Section 67(2) and (3)

Cases cited (1)

  • Carter & Sons Ltd Vs. Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
On appeal from
National Environment Tribunal
NET No. 4 of 2023
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B, 3A, 22 and 100 of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nairobi Waldorf School Trust v National Environment Management Authority & another (Environment & Planning Appeal E009 of 2024) [2024] KEELC 7497 (KLR)", Case Analysis (2024). Notice of Motion Application dated 8th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7497/eng@2024-10-31

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