Antony Mbogo Nderitu t/a Buffalo Auto Lab v Kenya Railways Staff Retirement Benefit Scheme & National Environment Management Authority [2017] KEELC 1688 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

MILIMANI LAW COURTS

ELC. CASE NO. 321 OF 2016

ANTONY MBOGO NDERITU

T/A BUFFALO AUTO LAB…….....…….…...……PLAINTIFF/ APPLICANT

VERSUS

KENYA RAILWAYS STAFF

RETIREMENT BENEFIT SCHEME …..…1ST DEFENDANT/RESPONDENT

NATIONAL ENVIRONMENT

MANAGEMENT AUTHORITY .…………2ND DEFENDANT/RESPONDENT

RULING

Coming up before me for determination is the Notice of Preliminary Objection dated 20th April 2016 and filed on 21st April 2016 in which the 2nd Defendant has stated that this court lacks the jurisdiction to hear this suit against it as it offends the provisions of section 129 of the Environmental Management and Coordination Act (the “EMCA”) and the same should be struck out.

The case against the 2nd Defendant is set out in the Plaint dated and filed on 5th April 2016 and is to the effect that at all material times, the Plaintiff is the proprietor of a business known as Buffalo Auto Lab situated in Landmawe, Nairobi County and is a tenant of the 1st Defendant. The Plaintiff disclosed that he had contracted an environmental consultant to prepare an environmental assessment report on the business which was submitted to the 2nd Defendant on 16th March 2016. It was further stated that on 18th March 2016, the Plaintiff received a rejection of that report from the County Director of Environment, Nairobi County. It was the Plaintiff’s case that as a result of this rejection, the 1st Defendant issued the Plaintiff with an eviction notice. The Plaintiff contended that it has at all times complied with environmental safety to avoid pollution further to paying rent as agreed by the parties. As one of the prayers in the Plaint, the Plaintiff sought a permanent injunction against the 2nd Defendant from interfering with its business operations. It is noteworthy that the 1st Defendant acted pursuant to an Environmental Restoration Order dated 3rd March 2016 issued to it by the 2nd Defendant.

The 2nd Defendant contends that this court does not have the jurisdiction to determine the case against it because this suit offends the provisions of section 129 of the EMCA. It provides as follows:

“(1) Any person who is aggrieved by:-

(a) A refusal to grant a licence or to the transfer of his licence under this Act or regulations made thereunder;

(b) The imposition of any condition, limitation or restriction on his licence under this Act or regulations made thereunder;

(d) The imposition against him of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations made thereunder;

May within sixty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.

(2) Unless otherwise expressly provided in this Act, where this Act empowers the Director General, the Authority or Committees of the Authority to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose.”

The Environmental Restoration Order dated 3rd March 2016 which is the genesis of this suit was issued to the 1st Defendant. The Plaintiff’s complaint against the 2nd Defendant is the Rejection of Environmental Audit Report dated 18th March 2016 through which the Plaintiff’s Environmental Audit Report submitted to the 2nd Defendant on 16th March 2016 was rejected on the ground that it does not meet the guidelines provided in the EIA/EA Regulations of 2003.

Having regard to section 129(2) of the EMCA set out above, it is clear that the Plaintiff’s case as against the 2nd Defendant squarely lies on the 2nd Defendant’s decision to reject the Plaintiff’s Environmental Audit Report. That being the case, the same legal provision directs that such a decision may be subject to an appeal to the Tribunal. That being the case, it is my finding that this court lacks jurisdiction to determine the issue between the Plaintiff and the 2nd Defendant. Accordingly, this Notice of Preliminary Objection is hereby upheld. The suit against the 2nd Defendant is hereby dismissed with costs to the 2nd Defendant.

It is so ordered.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF SEPTEMBER 2017.

MARY M. GITUMBI

JUDGE