Bedarin Hotel Limited v Esther Wangeci Kimani, Richard Kimani Kariuki & National Environment Management Authority

DIRECTOR RACHEL NJOKI NGAHU……………………..1ST CITED OFFICER JOSEPH IRUNGU MBURU………………………………..2ND CITED OFFICER VERSUS ESTHER WANGECI KIMANI……………………….…………1ST RESPONDENT RICHARD KIMANI KARIUKI………………………………..2ND RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY………………………………3RD RESPONDENT JUDGMENT 1. The Appellant herein Bedarin Hotel Limited, being dissatisfied with the entire decision and orders of the National Environment Tribunal (NET) as contained vide the Judgment delivered on 21/07/2024, in NET Appeal No. 29 of 2021, by Hon. Emmanuel Mumia - Chairman, Hon. Winnie Tsuma - Vice Chair, Duncan Kuria - Member, and Hon. Ronald Allamano - Member of the National Environment Tribunal, appeals to this Honourable Court against the entire Judgment and Decree on the following grounds: 1) The Learned Tribunal erred in Law and in fact in delivering a Judgment in the absence of a substantive hearing of the parties on merit and thereby denying the Appellant the right to a fair ELCEPA NO. E004 OF 2024 2|Page

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trial as envisaged under Article 50 of the Constitution of Kenya, 2010. 2) The Learned Tribunal Erred in Law and in Fact by failing to adhere to its orders issued on 12th April, 2023, directing that the hearing of the Tribunal Appeal be heard by way of viva-voce evidence of witnesses who had recorded their witness statements and Affidavits, thereby prejudicing the Appellant’s case. 3) The Learned Tribunal Erred in Law and in Fact in relying on extraneous matters and thereby arriving at a wrong conclusion in its Judgment. 4) The Learned Tribunal Erred in Law and in Fact in considering a non-existent document, being the alluded Noise Levels Assessment Report dated 23/09/2023, and failing to actually address itself to the correct Assessment Report dated 30/03/ 2023, thereby arriving at a wrong conclusion in its Judgment. 5) The Judgment Tribunal is delivered completely by the biased, Honourable as the said Tribunal confirmed the Appellant’s adherence to the conditions contained in EIA License No. NEMA/EIA/PSL/14144 by stating at paragraph 23 of the said Judgment that: ELCEPA NO. E004 OF 2024 3|Page

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“a report filed to the tribunal revealed that the 2nd luncheons Respondent where has no been sound holding amplifying equipment is used….” ...but went ahead to allude that the Appellant continued to breach the required regulations despite it not making any noise pollution. 6) The Honourable Tribunal Erred in Law and in Fact by failing to comprehend the Appellant’s case, failing to consider the Appellant’s witnesses' evidence, and failing to consider the bundle of documents that were filed in defending itself at the Tribunal, thereby prejudicing the Appellant’s case. 7) The Learned Tribunal Erred in Law and in Fact in finding that the 1st and 2nd Respondents adequately proved their case at the Tribunal as per the required standard of proof, being on a balance of probabilities. 2. The Appellant prays for the orders that; a) THAT this Appeal be allowed. b) THAT the Honourable Court be pleased to set aside the Judgment, decree, and any other consequential orders and actions with respect to ELCEPA NO. E004 OF 2024 4|Page

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the Judgment and decree of the Honourable Tribunal delivered on 21/07/2024. c) THAT the Honourable Court be and is hereby pleased to issue a declaration that the Appellant herein did comply with all the requirements directed by the 3rd Respondent in acquisition of EIA License No. NEMA/EIA/PSL/14144 issued to the Appellant herein on 30/09/2021. d) THAT the Honourable Court be and is hereby pleased to issue a declaration that the EIA License No. NEMA/EIA/PSL/14144 issued to the Appellant herein on 30/09/2021, be reinstated. e) THAT the Honourable Court be pleased to grant general and exemplary damages to the Appellant. f) THAT the costs of this Appeal and those of the Honourable Tribunal below be borne by the Respondents. g) THAT any other relief that this Honourable Court may deem fit to grant be issued. 3. The Appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 27/07/2026 through their Advocates, Wairegi Gatetua Advocates and the 1st and 2nd Respondents filed their joint written submissions dated 3/08/2026 through their Advocates, Maina, Kiama Advocates. ELCEPA NO. E004 OF 2024 5|Page

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4. In their written submissions, the Appellant submits that it is approaching the Court pursuant to a Memorandum of Appeal dated 20/08/2024 and is faulting the Judgement and orders of the National Environment Tribunal delivered in National Environment Tribunal Appeal No. 29 of 2021 (Esther Wangeci Kimani & National Environment Richard Kimani Management Kariuki –vs– Authority and Bedarin Hotel Limited). 5. It is their submission that the gravamen of the Appeal is that the Tribunal fundamentally breached the Appellant’s right to a fair hearing under Article 50 of the Constitution of Kenya, 2010. Grounding its authority to seek appellate intervention, the Appellant relies on the principles in Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, submitting that an appellate Court must interfere with the lower tribunal's discretion where the tribunal misdirects itself, acts on extraneous matters, ignores relevant material, or arrives at a wrong conclusion causing injustice. 6. On the violation of the right to a fair hearing, the Appellant contends that despite the Tribunal's explicit directions on 5/04/2023 ordering the matter to proceed by way of viva voce evidence, no actual hearing of the main appeal was ever conducted. Citing the Court of Appeal authority in Taita Taveta Teachers Investment Limited v Mbaro Johnson & 9 others (2026) KECA 557 (KLR) which cited Mbaki & ELCEPA NO. E004 OF 2024 6|Page

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others v Macharia & another [2005] 2 EA and Patriotic Guards Ltd v James Kipchirchir Sambu [2018] eKLR the Appellant highlights that the right to be heard is a foundational element of the rule of law. It argues that determining rights on untested evidence without granting an opportunity to cross-examine opposing witnesses or present defense evidence vitiates the trial and renders the resulting Judgement invalid. 7. The Appellant further contends that the Tribunal lacked independence and impartiality. Although the appeal before the Tribunal specifically challenged Environmental Impact Assessment License No. NEMA/EIA/PSL/14144 relating to a proposed event garden on Plots Ruiru East Block 1/3255 and 4290, the Tribunal went outside the scope of the pleadings. It issued prejudicial orders against a separate and distinct business outfit, Bedarin Hotel, situated on Plot LR No. Ruiru Estate Block 1/3260, which was never part of the subject license or proceedings. 8. Additionally, citing Hassan & Another v Welai & 2 Others (Civil Appeal E238 of 2023) [2023] KEHC 2922, the Appellant submits that the Tribunal breached the doctrine of audi alteram partem by failing to notify the parties of the date of Judgement. The impugned Judgement, dated 1/07/2024, was uploaded to the CTS portal twenty days later without proceedings reflecting a trial or the presence of parties. ELCEPA NO. E004 OF 2024 7|Page

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9. On the evaluation of evidence, the Appellant submits that the Respondents failed to discharge their burden of proof regarding allegations of noise pollution and road obstruction. The joint noise reports on record revealed that ambient noise emanated from the Thika Superhighway rather than the Appellant's operations, a position corroborated by the 3 rd Respondent’s inspection visits. Moreover, the Tribunal misapprehended the evidence by relying on a non-existent noise report dated 23/09/2023 instead of the correct report dated 30/03/2023, while paradoxically acknowledging the Appellant’s compliance with license conditions. 10. Consequently, the Appellant prays that the Court, as a Court of first appeal, exercise its discretion to interfere with the Tribunal’s decision, vacate the findings, and allow the Appeal as prayed in the Memorandum of Appeal. 11. In their written submissions the 1st and 2nd Respondents urge the Honourable Court to dismiss the Appellant's appeal with costs on two primary grounds, maintaining that the appeal lacks merit, is bad in law, and is rendered moot by operation of time. 12. Addressing the Appellant’s contention regarding an alleged breach of the right to a fair hearing under Article 50(1) of the Constitution, the 1st and 2nd Respondents submit that the Appellant was accorded a full and fair hearing before the National Environment Tribunal. It is submitted that the procedural history demonstrates compliance with the ELCEPA NO. E004 OF 2024 8|Page

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audi alteram partem rule, as the Appellant was duly served with the Notice and Grounds of Appeal alongside seven written witness statements dated 29/12/2021, to which the Appellant responded comprehensively through a Replying Affidavit addressing all allegations of noise pollution and obstructive parking. The Tribunal subsequently exercised its procedural discretion to direct that the appeal be determined by way of written submissions. 13. The Respondents submit that constitutional due process does not guarantee an unqualified right to oral crossexamination or an oral hearing, provided a party is given notice of the case against it and a fair opportunity to contest the allegations in writing. In support of this proposition, reliance is placed on the Court of Appeal decision in Parkar & Another v NQ & 2 Others [2023] KECA 908 (KLR), which affirmed that the admission of evidence without oral cross-examination does not violate Article 50(1) where the affected party retains the opportunity to challenge and rebut such evidence on Affidavit. This position is further reinforced by Albert Lukoru Loduna & 2 Others v Judicial Service Commission & 2 Others, Petition No. 480 of 2012, where the High Court established that a fair opportunity to respond in writing satisfies constitutional procedural requirements. The Respondents contend that this approach aligns with Section 12 of the Fair Administrative Action Act, 2015, and the constitutional imperative under Article 159(2) ELCEPA NO. E004 OF 2024 9|Page

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(d) of the Constitution to administer substantive justice without undue regard to procedural technicalities. Having participated in the Tribunal’s directions by filing a Replying Affidavit without objection or making an application to crossexamine witnesses, the Appellant is estopped from alleging a breach of Article 50(1) of the Constitution or Section 4 of the Fair Administrative Action Act. 14. On the second issue, the Respondents submit that the appeal is moot and incapable of yielding any practical relief. General Condition 1.2 of EIA License No. NEMA/EIA/PSL/14144 explicitly limited its validity to twentyfour months from 30th September 2021, causing the instrument to lapse by effluxion of time on 29th September 2023, prior to the rendering of the impugned Tribunal decision on 1st July 2024. Citing the Supreme Court decision in Kenya Railways Corporation & 2 Others v Okoiti & 3 Others [2023] KESC 38 (KLR), the Respondents argue that an issue becomes moot when subsequent events eliminate the underlying controversy, rendering any judicial determination of no practical effect. This principle was further reaffirmed in Council of Legal Education v Tusasirwe & 13 Others [2025] KECA 459 (KLR), where the Court of Appeal emphasized that judicial time must not be expended on academic exercises or orders issued in vain. 15. In the end, the Respondents contend that setting aside the revocation to reinstate an expired license exceeds the ELCEPA NO. E004 OF 2024 10 | P a g e

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appellate jurisdiction conferred upon this Court under Section 130(4) of the Environmental Management and Coordination Act (EMCA), Cap. 387. Reinstating an expired license would effectively amount to issuing a fresh environmental impact assessment license, a statutory power reserved exclusively to the National Environment Management Authority (NEMA) under Sections 58 and 63 of EMCA. The Respondents therefore pray that the appeal be dismissed with costs to the 1st and 2nd Respondents. 16. The 3rd Respondent did not file any written submissions as at the time of writing this Judgment. Issues for Determination 17. From a careful review of the Record of Appeal, the grounds raised in the Memorandum of Appeal, and the rival written submissions of the parties, the key issues arising for determination in this Appeal are: 1) Whether the Tribunal breached the Appellant's right to a fair hearing under Article 50 of the Constitution by determining the appeal without the viva-voce hearing it had itself directed. 2) Whether the Tribunal exceeded its jurisdiction and offended the rules of natural justice by making adverse findings against Bedarin Hotel, a premises and business not the subject of the license or the pleadings before it. ELCEPA NO. E004 OF 2024 11 | P a g e

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3) Whether the Tribunal erred in law and fact by relying on a non-existent noise assessment report and misapprehending the evidence properly on record. 4) Whether the 1st and 2nd Respondents discharged their burden of proving noise pollution and obstruction on a balance of probabilities. 5) Whether the appeal has been rendered moot by the expiry of EIA License No. NEMA/EIA/PSL/14144 by effluxion of time before the Tribunal's decision. 6) Whether this Court has jurisdiction under Section 130(4) of the Environmental Management and Coordination Act to reinstate an expired environmental impact assessment license. Analysis and Determination 18. In summary Bedarin Hotel Limited appeals against the Judgment of the National Environment Tribunal delivered on 21/07/2024 in NET Appeal No. 29 of 2021, in which the Tribunal upheld a complaint by Esther Wangeci Kimani and Richard Kimani Kariuki against the Appellant and NEMA over noise pollution and obstructive parking allegedly arising from event-garden operations conducted under EIA License No. NEMA/EIA/PSL/14144. 19. The Appellant contends that the Tribunal decided the matter without the viva-voce hearing it had itself directed on 12/04/2023, relied on a non-existent noise assessment report, made findings against a separate business premises ELCEPA NO. E004 OF 2024 12 | P a g e

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not before it, and reached a biased and unsupported conclusion despite evidence of compliance. It seeks to have the Judgment set aside, the license reinstated, and damages and costs awarded in its favour. The Respondents oppose the appeal, arguing that the Appellant was accorded a fair opportunity to respond in writing and is now estopped from complaining of a lack of oral hearing, and further that the appeal is moot because the underlying license lapsed by effluxion of time on 29/09/2023, before the Tribunal even rendered its decision, such that no practical relief remains available. 20.On the first issue, the question is not merely whether the Appellant filed a Replying Affidavit, but whether a party can be said to have been heard when the very tribunal seized of the matter issues a direction for oral evidence and then abandons that direction without recourse to the parties. The right to be heard is not a formality satisfied by the mere existence of pleadings on file; it requires that the process actually followed matches, or is properly varied with notice to the parties from, the process the tribunal itself set in motion. 21.Article 50(1) of the Constitution mandates that every person has the right to have any dispute resolved in a fair and public hearing before a Court or independent tribunal. Where a Court or tribunal issues specific procedural directions that a matter proceed by viva voce evidence, departing from ELCEPA NO. E004 OF 2024 13 | P a g e

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such directions without hearing the parties or affording them an opportunity to test witness evidence violates the fundamental tenets of due process. 22.As was observed by the Court of Appeal in Onyango Oloo v. Attorney General [1986-1989] EA 456: "The principle of natural justice requires that a party be given a fair opportunity to be heard, and where a statutory body or tribunal acts in breach of the rules of natural justice, its decision is a nullity and cannot be permitted to stand." 23.The Court reiterated that the right to be heard is so fundamental that a violation thereof renders the resulting decision void ab initio. Furthermore, the delivery of a Judgment without notifying the litigating parties undermines the public confidence in the judicial process and breaches procedural fairness. 24.On the requirement for tribunals to give notice and base decisions strictly on evidence on record, the Court of Appeal in Judicial Service Commission v. Kalpana H. Rawal [2015] eKLR stated: "Procedural fairness demands that parties be accorded adequate notice of every critical stage of the proceedings, including the delivery of determination, and that a decision grounded on non-existent ELCEPA NO. E004 OF 2024 evidence or extraneous matters 14 | P a g e

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outside the scope of pleadings is a denial of justice." 25.The Court of Appeal has repeatedly affirmed that it is a fundamental principle of justice and procedural fairness that no person is to be condemned unless the person has been given prior notice of the case against them and a fair opportunity to meet it. Where a tribunal reverses its own procedural order without explanation and proceeds to Judgment on a record that was never tested as directed, the resulting decision is vulnerable regardless of whether written submissions were filed, because consent to a procedure is not the same as consent to its silent abandonment. The Respondents' estoppel argument is weaker than it appears; silence in the face of a tribunal's own switch in procedure, made without an application by either party, cannot fairly be recharacterised as a waiver by the Appellant of its right to the hearing that had already been promised. 26.Consequently, the Tribunal's reliance on a non-existent noise report and its failure to notify the parties or conduct the trial as directed amounted to a severe procedural defect that breached Article 50 of the Constitution. 27.On the second issue, the difficulty for the Tribunal's Judgment is more fundamental than a procedural lapse; it is one of scope. The appeal before the Tribunal was confined to EIA License No. NEMA/EIA/PSL/14144 relating to the event garden on Plots Ruiru East Block 1/3255 and 4290. Bedarin ELCEPA NO. E004 OF 2024 15 | P a g e

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Hotel, situated on a distinct parcel, Plot LR No. Ruiru Estate Block 1/3260, was neither the licensee under scrutiny nor a party whose separate operations had been placed in issue by the pleadings. 28.It is settled that a party is bound by its pleadings and that no party should be permitted to travel beyond its pleadings, a principle that applies also to the tribunal or Court determining the dispute; an adjudicative body cannot resolve, or issue findings on, a controversy that was never framed for it by the parties. A tribunal that reaches beyond the four corners of the appeal to pronounce on a separate entity's conduct does not merely err on the facts; it acts outside the ambit of the dispute properly before it, and any orders touching that separate entity are made without the jurisdictional foundation that pleadings exist to provide. 29.On the third issue, the Appellant's complaint that the Tribunal relied on a Noise Levels Assessment Report dated 23/09/2023, when no such report existed and the correct report on record was dated 30/03/2023, goes to the rationality of the Judgment rather than mere clerical error. A finding of fact must be traceable to evidence that was actually adduced; a tribunal's reliance on a document that does not exist, while simultaneously acknowledging in the same Judgment that the Appellant had been holding functions without amplifying equipment, betrays an internal inconsistency in the reasoning rather than a considered ELCEPA NO. E004 OF 2024 16 | P a g e

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evaluation of the record. This inconsistency is compounded by the Tribunal's own concession, noted at paragraph 23 of its Judgment, that the Appellant's luncheons involved no sound-amplifying equipment, yet the Tribunal still concluded that breaches persisted. A Judgment cannot simultaneously credit compliance and penalise non-compliance on the same set of facts without explaining the leap between the two. 30.On the fourth issue, the burden lay squarely on the 1 st and 2nd Respondents, as the parties alleging noise pollution and obstruction, to prove those allegations on a balance of probabilities before the Tribunal. The standard is well settled that a claimant discharges the burden only where the tribunal can conclude that it is more likely than not that the facts alleged occurred, and where the probabilities are equal, the burden is not discharged. Here, the Appellant's evidence including joint noise reports attributing ambient noise to the adjacent Thika Superhighway rather than to the event garden, and the 3rd Respondent’s own inspection findings was capable Respondents' of tipping allegations, the or scales at away minimum from the leaving the probabilities evenly balanced. A tribunal that does not visibly grapple with competing evidence of an alternative noise source before finding against a licensee has not demonstrably applied the balance-of-probabilities test as required. ELCEPA NO. E004 OF 2024 17 | P a g e

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31.On the fifth issue, the Respondents' mootness argument carries real force independent of the fair-hearing complaints. The Court must Environmental consider Impact whether the Assessment expiration of License No. NEMA/EIA/PSL/14144 on 29/09/2023 renders the controversy academic. The Courts will not expend judicial resources to determine matters where the underlying substrate has ceased to exist or where the orders sought cannot yield any practical utility. Addressing the doctrine of mootness and academic litigation, the Court of Appeal in Daniel Toroitich Arap Moi v. Mwangi Stephen Muriithi & 3 Others [2014] eKLR held: "Courts do not act in vain, nor do they decide academic questions. Where the subject matter of the dispute has lapsed or where no practical relief can be granted to the parties, the Court ought to refrain from issuing orders that have been overtaken by events." 32. General Condition 1.2 limited the license to twenty-four months from 30/09/2021, so it lapsed on 29/09/2023 before the Tribunal's decision of 01/07/2024 and well before this appeal. As already stated in paragraph 31 above, Courts are reluctant to utilize judicial resources determining the validity of process touching an instrument that had already ceased to exist in law by the time the impugned decision was made, since Courts should not render advisory opinions or engage ELCEPA NO. E004 OF 2024 18 | P a g e

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in academic discourse divorced from a live and enforceable outcome. 33.That said, mootness as to the license's operative effect does not fully answer the fair-hearing and jurisdictional complaints, because a party retains an interest in having a flawed process record set aside even where the substantive permit it once authorised can no longer be revived, particularly where reputational and cost consequences flow from the Tribunal's findings. 34.On the sixth issue, the relief of reinstating a license that lapsed by effluxion of time before the Tribunal ruled does not resonate with the statutory provisions. Sections 58 and 63 of EMCA vest the power to grant environmental impact assessment licenses exclusively in NEMA, and Section 130(4) of the Environmental Management and Co-ordination Act confers appellate power upon the High Court to confirm, set aside, or vary the decision of the Tribunal. 35.However, this appellate power does not usurp the primary statutory authority vested in the National Environment Management Authority to issue, renew, or regulate environmental licenses as provided under Sections 58 and 63 of the Act as stated above. The distinction between appellate review and statutory administrative powers was authoritatively settled by the Court of Appeal in Republic v National Environment Management Authority Ex parte ELCEPA NO. E004 OF 2024 19 | P a g e

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Sound Equipment Limited [2011] eKLR:, where the Court observed: "An appellate Court or tribunal cannot usurp the statutory mandate of an administrative body by granting licenses or approvals that are strictly anchored on technical reserved for that statutory administrative assessments body. The Court’s role is to ensure legality and propriety, not to substitute its discretion for that of the regulator." 36.Reinstating or issuing an environmental impact assessment license that has lapsed by effluxion of time would amount to an illegal exercise of primary administrative power by an appellate Court. 37.Having found that the Tribunal issued its Judgment without conducting the viva-voce hearing it had itself directed, that it made adverse findings touching a separate business premises not the subject of the pleadings before it, and that it relied on an evidentiary record containing a material and unexplained inconsistency regarding the noise assessment report, this Court is satisfied that the Judgment of the National Environment Tribunal delivered on 21/07/2024 cannot stand. However, given the established mootness of the underlying license and the statutory limits on this Court's appellate powers, the relief available is confined to setting ELCEPA NO. E004 OF 2024 20 | P a g e

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aside the flawed decision rather than reviving an expired instrument or making declarations reserved to NEMA. 38.The Court accordingly makes the following Orders:1) The Appeal is allowed to the extent set out below; a) The Judgment, Decree, and consequential orders of the National Environment Tribunal delivered on 21/07/2024 in NET Appeal No. 29 of 2021 are set aside for want of a fair hearing and for exceeding the scope of the pleadings; b) The prayer for a declaration that the Appellant complied with all license requirements and the prayer for reinstatement of EIA License No. NEMA/EIA/PSL/14144 are declined as moot and as exceeding this Court's jurisdiction under Section 130(4) of EMCA, without prejudice to the Appellant's right to apply afresh to NEMA for a new license; c) The prayer for general and exemplary damages is declined, no proper evidentiary basis having been laid for quantification; d) Each party shall bear its own costs of the Appeal and of the proceedings before the Tribunal, given the divided outcome and the mixed success of the parties on the issues raised. ELCEPA NO. E004 OF 2024 21 | P a g e

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Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 17TH DAY OF SEPTEMBER 2026. …………………. MOGENI J JUDGE In the presence of: Mr. Wairegi for the Appellant Miss Mwaura holding brief for Mr. Kiama for the 1 st & 2nd Respondents No appearance for the 3rd Respondent Mr. Melita - Court Assistant …………………… MOGENI J JUDGE ELCEPA NO. E004 OF 2024 22 | P a g e

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