Mathu, Chairman & 2 others (All Jointly Suing as and on Behalf of Kyuna Neighbours Association) v National Environment Management Authority & 3 others; Services (Interested Party) (Environment and Land Appeal E076 of 2023) [2026] KEELC 173 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a late environmental appeal to proceed, ruling a three-day filing delay was excusable because no prejudice was shown.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection application was time-barred under Order 42 Rule 13(1) and (2) of the Civil Procedure Rules
The application was not time-barred because directions on the appeal had not yet been given by the court
Order 42 Rule 13(2) requires objections to jurisdiction to be raised before the judge gives directions. The court noted that no directions had been given; the court had been dealing with the application itself. The 21-day window under Rule 13 is tied to the listing for directions, which the appellant had not yet sought. The objection therefore failed.
When time under Section 130(1) of EMCA begins to run - date of delivery of the judgment or date of receipt
The judgment was delivered and forwarded to the parties, including the appellants' counsel, by email on 13/4/23 at 14.16 hours; time ran from that date
Regulation 37(6) of the NET Procedure Rules deems a decision made on the date the document recording it is sent. The tribunal's email log showed the judgment was sent on 13/4/23. The appellants, bearing the burden of proving non-receipt, produced only a printout of emails from 3.14 pm to 5.57 pm and no bounce-back or delivery-failure evidence. They failed to discharge that burden.
Whether the appeal, filed after the 30-day period, should be struck out
The three-day delay was not inordinate and no prejudice was demonstrated; the appeal was sustained to be heard on the merits
The deadline expired on 13/5/23. The court treated the appeal as three days late, noted that the applicants furnished no evidence of prejudice, and exercised its discretion in the interests of justice to allow the appeal to proceed to a hearing on the merits.
Legal principles established
#- Jurisdiction being a point of law can be raised at any stage of the proceedings; Order 42 Rule 13 governs pre-hearing directions and does not limit that right
- Where directions under Order 42 Rule 13 have not been given, an objection to jurisdiction raised thereafter is not time-barred
- The burden of proving non-receipt of a judgment transmitted electronically lies on the party asserting non-receipt
- A short delay in filing an appeal, absent demonstrated prejudice, may be excused in the interests of justice
Court orders
#- 1.The Notice of Motion dated 27/5/25 by the 2nd and 3rd Respondents is disallowed
- 2.Costs shall be in the cause
- On appeal from
- National Environment Tribunal
- Not stated
- Jurisdiction invoked
- Section 130(1) of the Environment Management and Coordination Act (EMCA), 1999 - appeals from the National Environment Tribunal to the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathu, Chairman & 2 others (All Jointly Suing as and on Behalf of Kyuna Neighbours Association) v National Environment Management Authority & 3 others; Services (Interested Party) (Environment and Land Appeal E076 of 2023) [2026] KEELC 173 (KLR)", Case Analysis (2026). Not stated in the judgment excerpt (appeal instituted vide memorandum of appeal dated 23/6/23, filed 30/6/23). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/173/eng@2026-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.