Karebe Gold Mining Ltd v National Environment Management Authority (NEMA) & 10 others (Environment and Land Appeal E004 of 2026) [2026] KEELC 4678 (KLR)
The bottom line
#A Kenyan court voided a finding that a mining environmental licence had transferred to another company, confirming that licence appeals must be filed within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal could determine the EIA licence transfer issue after finding the appeal time-barred
It could not; the transfer grievance fell within Section 129(1)(a) and was equally time-barred, and in any event the Tribunal could not exercise jurisdiction in fragments. The transfer findings and Final Order (b) were nullities and were set aside.
Section 129(1)(a) specifically covers grievances concerning the transfer of licences, so the substance of the complaint could not be channeled through Section 129(2) to escape the sixty-day limit. The grievance had crystallised by 14th April 2025 at the latest, so the 1st December 2025 appeal was out of time. Even if severable, the Tribunal made no finding of Section 129(2) jurisdiction and the downing-of-tools principle rendered everything decided thereafter a nullity.
Correct construction of Section 65 of EMCA and Regulation 26 on transfer of EIA licences
Even assuming jurisdiction, the Tribunal's finding that the licence was deemed transferred upon notification could not stand: notification is procedural, not constitutive, the date and fact of notification were unproven, and the Section 65(1) same-project threshold inquiry was never undertaken.
The words 'in accordance with this section' in Section 65(4) confine the operative transfer to one effected per the whole section and the Regulations, including the same-project requirement, prescribed fee and joint Form 11 notification. The Tribunal itself acknowledged 'it is not clear when this occurred', yet Sections 107 and 109 of the Evidence Act placed the burden of proving those operative facts on the parties asserting the transfer. The licence covered an artisanal gold mining plant while the activity undertaken was cyanide gold leaching, a materially different project.
Whether the Tribunal erred in failing to determine the Section 68 audit prayer
No miscarriage of justice; the prayer was consequential on the failed non-enforcement complaint, and the Section 68 audit power is vested in NEMA, not the Tribunal.
Once the Tribunal found the non-enforcement contention without basis, the substratum of the consequential relief fell away. Section 68 empowers NEMA to investigate through audits and sampling, while the Tribunal's Section 129(2) jurisdiction is appellate and supervisory. The Appellant remains free to move NEMA under Section 68 or pursue other remedies.
Whether NEMA failed to enforce its compliance orders, with reference to the precautionary principle and Articles 42, 69 and 70
The Tribunal's finding of no enforcement failure was reasonably open on the record; constitutional principles inform but do not enlarge statutory jurisdiction.
NEMA issued escalating enforcement instruments and, upon continued defiance, invoked the criminal process; a regulator cannot be said to have failed to enforce merely because defiant parties persist. The precautionary principle and Articles 42, 69 and 70 guide but do not expand the Tribunal's statutory jurisdiction. Setting aside the deemed-transfer declaration itself serves the precautionary principle by restoring the statutory position.
Legal principles established
#- The sixty-day period under Section 129(1) of EMCA is mandatory and the Tribunal has neither jurisdiction nor discretion to enlarge it.
- A grievance concerning the transfer of a licence falls within Section 129(1)(a) of EMCA and cannot be relabelled to invoke the general rubric of Section 129(2) so as to escape limitation.
- Jurisdiction cannot be exercised in fragments; once a tribunal finds it lacks jurisdiction over a dispute it must down its tools as to the whole dispute.
- Notification under Section 65 of EMCA is procedural rather than constitutive; a transfer takes effect upon notification only where effected 'in accordance with' the section, confined to the same project and through the prescribed regulatory process.
- An EIA licence is project-specific and is not a general operating approval attaching to a parcel of land or its proprietor.
- By dint of Regulation 26(5), unless and until a joint notification of transfer is duly given, the registered holder of the licence remains deemed to have charge, management or control of the project.
Court orders
#- 1.The appeal is allowed and the findings of the National Environment Tribunal at paragraphs 23 and 24 of its Judgment delivered on 2nd March 2026, together with Final Order (b) thereof, declaring that EIA Licence No. NEMA/EIA/PSL/16114 was deemed to have been transferred to the 2nd Respondent, Veinrock Gold Limited upon notification to the Director-General of NEMA, are set aside.
- 2.In substitution, Tribunal Appeal No. E028 of 2025 is dismissed in its entirety.
- 3.Each party shall bear its own costs of this appeal.
- On appeal from
- National Environment Tribunal
- Tribunal Appeal No. E020 of 2025 as consolidated with Tribunal Appeal No. E028 of 2025
- Jurisdiction invoked
- Appeal from the National Environment Tribunal under the Environmental Management and Coordination Act, 1999 (Section 129)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karebe Gold Mining Ltd v National Environment Management Authority (NEMA) & 10 others (Environment and Land Appeal E004 of 2026) [2026] KEELC 4678 (KLR)", Case Analysis (2026). Memorandum of Appeal dated 1st April 2026 (appeal against National Environment Tribunal Appeal No. E020 of 2025 as consolidated with Tribunal Appeal No. E028 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4678/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.