Dwasi v Cabinet Secretary for Environment and Natural Resources; Judicial Service Commission (Interested Party) (Judicial Review 35 of 2017) [2018] KEELRC 2275 (KLR)

The court found that the claimant had diligently sought extension three months before expiry of her term, but both the respondent and the interested party delayed: the respondent wrote to JSC over a month after term expiry, and the JSC responded almost two months after expiry. The court also noted an absence of inter-agency courtesy and what it called power games. Rather than setting aside or upholding the ex parte order outright, the court invoked Article 159 to issue a transitory order that countermanded the JSC's extension letter while preserving the tribunal's operations and the public interest.

The respondent argued that upon expiry of the three-year term the office fell vacant and could only be filled by JSC nomination and gazettement by the Cabinet Secretary under section 125(2), (7) and (8) of EMCA, and that the court could not reinstate a person who had not been so appointed and gazetted. The court accepted that the term had expired under section 125(4)(a) but held the statute silent on delayed replacement and on extension requests, which justified a judicially supervised transitory arrangement rather than outright removal.

The court characterised the National Environment Tribunal as a very important tribunal in environmental governance and observed that it could not sit back helplessly while the respondent and the interested party engaged in power games and bureaucratic delay over succession. Anchoring itself in Article 159, the court emphasised that justice must not be delayed and must be administered without undue regard to procedural technicalities, and that the public's access to the tribunal took precedence over the institutional dispute.