Kioko (Suing In His Capacity As Chairman For And On Behalf Of Runda Gardens Residents’ Association) v National Environment Management Authority (NEMA) & another [2022] KENET 729 (KLR)

Kioko (Suing In His Capacity As Chairman For And On Behalf Of Runda Gardens Residents’ Association) v National Environment Management Authority (NEMA) & another (Tribunal Appeal 18 of 2021) [2022] KENET 729 (KLR) (Civ) (28 September 2022) (Ruling)

Neutral citation: [2022] KENET 729 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 18 of 2021

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Vice Chair, Bahati Mwamuye, Waithaka Ngaruiya & Waithaka Ngaruiya, Members

September 28, 2022

Between

Vincent Kioko

Appellant

Suing In His Capacity As Chairman For And On Behalf Of Runda Gardens Residents’ Association

and

National Environment Management Authority (NEMA)

1st Respondent

Registered Trustees Of Fountain Gate Church

2nd Respondent

Ruling

1. The appellant filed the notice of appeal dated August 11, 2021 and thereafter the 1st respondent raised an objection by filing a preliminary objection on August 19, 2021 on the following grounds:a.That the appeal offends and contravenes the provisions of section 129 of the Environmental Management and Coordination ActNo 8 of 1999. b.This court lacks jurisdiction since the appellant has commenced this appeal out of time prescribed by the above-mentioned provisions of lawc.That the appeal should be dismissed with costs.

2. The appellant filed submissions on September 24, 2021 while the 2nd respondent filed written submissions in respect of the preliminary objection on September 13, 2021. The 1st respondent did not file

3. Having considered the written submissions by the appellant, 1st respondent and the authorities and the single issue for determination in notice of the preliminary objection is jurisdiction.

4. The 2nd respondent submitted the tribunal has no jurisdiction because the appeal has been filed outside the mandatory 60-day period prescribed by section 129(1)of EMCA 2015.

5. It is not in dispute that jurisdiction is the foundation needed by any court or Tribunal to deal with any matter before it.

6. In the case of Owner of Motor Vessel Lilian S v Caltex Oil (Kenya) Ltd the honourable court held:“With that I return to the issue of jurisdiction and to the words of section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

7. Under section 129 of the EMCA, this Tribunal has power to grant the following orders under section 129(1) and (2) ofEMCAwhich provides as follows.“Any person who is aggrieved by: -(a).the grant a license or permit or a refusal to grant a licence or permit or the transfer of a licence or permit under this act or its regulations.(b)the imposition of any condition, limitation, or restriction on the persons license under this act or its regulations.(c)the revocation, suspension, or variation of the person’s license under this act or its regulations.(d)the amount of money which required to paid as a fee under this act or its regulations.(e)the imposition against the person of an environmental restoration order or environmental improvement order by the authority under this act or its regulations,“May within sixty days after the occurrence of the event against which the person 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 or its agents 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.

8. This appeal is challenging issuance of the EIA Licence No. NEMA/NRB/PR/5/1/10624 issued on January 30, 2018 for proposed church hall development by the 1st respondent to the 2nd respondent.

The Anlysis 9. The EIA Licence No NEMA/NRB/PR/5/1/10624 was issued by the 1st respondent to the 2nd respondent and is dated January 30, 2018 while the Appeal challenging this licence is filed on August 11, 2021.

10. The stipulated 60-day period under the statute has no extension and the appeal is clearly filed out of time and thus the tribunal agrees with the 2nd respondent that the appeal is filed out of time.

11. The challenge on the jurisdiction of this tribunal is therefore sustained because it is clear without properly filed appeal to give jurisdiction the tribunal must down its tools .

Orders 12. The tribunal therefore hereby allows the notice of preliminary objection by the 2nd respondent whose effect is striking the entire appeal.

13. Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI, THIS 28TH DAY OF SEPTEMBER 2022Mohammed Balala ………………….…….…… ChairpersonChristine Kipsang………….……...………Vice ChairpersonBahati Mwamuye……………………………….…MemberWaithaka Ngaruiya…………...…………. MemberKariuki Muigua………………………………… MemberThis ruling has been delivered electronically and it is to be shared by the parties via email.