Mathu & another (Suing on Behalf of Shanzu Road Residents Association) v Director General, National Environment Management Authority (NEMA) & 2 others; The Director General, Nairobi Metropolitan Services (Interested Party) [2022] KENET 743 (KLR)

Mathu & another (Suing on Behalf of Shanzu Road Residents Association) v Director General, National Environment Management Authority (NEMA) & 2 others; The Director General, Nairobi Metropolitan Services (Interested Party) (Tribunal Appeal 8 of 2022) [2022] KENET 743 (KLR) (Civ) (2 September 2022) (Ruling)

Neutral citation: [2022] KENET 743 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 8 of 2022

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

September 2, 2022

Between

Kimani Mathu (Chairman), Atul Shah (Vice Chairperson), & Chris Ndegwa ( Secretary) Jointly Suing on Behalf of Kyuna Neighbours Association

1st Appellant

Isaac Mruttu( Suing on behalf of Shanzu Road Residents Association)

2nd Appellant

Suing on Behalf of Shanzu Road Residents Association

and

Director General, National Environment Management Authority (NEMA)

1st Respondent

Maar Petroleum Limited

2nd Respondent

University of Nairobi

3rd Respondent

and

The Director General, Nairobi Metropolitan Services

Interested Party

Ruling

1. Before this tribunal is the 2nd respondent’s notice of preliminary objection dated February 28, 2022. The preliminary objection was heard and determined without the participation of hon dr Kariuki Muigua who recused himself from this matter at the outset. The gist of the preliminary objection is that the present appeal is one which falls under section 129(1) of the Environmental Management and Co-ordination Act (EMCA) due to the fact that it challenges the issuance of an environmental impact assessment license; but it has been filed outside the sixty-day period from the date of the issuance of that license.

2. The parties have produced the same environmental impact assessment license in their various documents, being NEMA/EIA/PSL/15911 dated December 10, 2021. It is also not in dispute that the appeal herein was commenced vide a notice of appeal dated February 21, 2021 which was accompanied by an appellants’ statement in support of the appeal also dated February 21, 2021.

3. While the appellants have attempted to move their appeal away from section 129(1) of EMCA and situate it within section 129(2) of the act, it is clear from the notice of appeal dated February 21, 2022 and the grounds of appeal contained in the accompanying appellants’ statement in support of the appeal also dated February 21, 2021 that the present appeal is one that squarely falls within section 129(1) of the act and not section 129(2).

4. The notice of appeal dated February 21, 2022 states at paragraph 4. 5 therein that the appellants situate their appeal as falling within section 129(2) of EMCA as opposed to section 129(1). However, at paragraph 4. 1 of the notice of appeal the appellants capture their heart of their case and grievances as being that:“4. 1 The 1st respondent has failed, refused, and/or neglected to exercise its lawful mandate, (as particularized herein) and unlawfully issued NEMA License/Approval NEMA/EIA/PSL/15911 to the 2nd Respondent.”

5. Section 129(1) of EMCA provides as follows:“129. Appeals to the tribunal(1)Any person who is aggrieved by—a.the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, 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;c.the revocation, suspension or variation of his licence under this act or regulations made thereunder;d.the amount of money which he is required to pay as a fee under this act or regulations made thereunder;e.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. “ [ emphasis ours]

6. Our consideration of the notice of appeal and the appellants’ statement in support of the appeal informs us that this tribunal cannot determine the appeal herein without deeply interrogating the process that led to the issuance of the impugned EIA license, the decision to grant that license, and the conditions contained therein. These are all aspects that squarely fall within the province of section 129(1) of EMCA and not section 129(2) of the act.

7. Guided and bound by the superior courts above us, and also guided by the plain reading of the statute as amended and applicable to the material times of the present appeal, it is clear to us that the present appeal ought to have been filed within sixty days after the issuance of the impugned license. That license, environmental impact assessment license No NEMA/ESL/PSL/15911was issued on December 10, 2021 while the instant appeal was dated and filed on February 21, 2022; seventy-four (74) days later.

8. Accordingly, the present appeal was filed fourteen (14) days after the lapse of the sixty-day period prescribed by section 129(1) of EMCA. This tribunal does not have the statutory power to extend or enlarge time for such appeals.

9. In view of the applicable dates and the fact that this appeal falls under section 129 (1) of EMCA, the tribunal finds that the instant appeal dated February 21, 2022 challenging the issuance and conditions of a license issued on December 10, 2021 was filed seventy-four days after the grant of the license and is thus fourteen days out of time.

10. The particulars of section 129(1) of EMCA and the sixty-day requirement are commonly known. Even if they were not, it is incumbent on appellants to ensure that this tribunal has jurisdiction to hear and determine their appeal before they file it. in the present case, the appellants’ action of filing this appeal out-of-time go forced the respondents to enter appearance and the 2nd respondent to file the instant preliminary objection. In the circumstances, the respondents are entitled to costs.

Orders 11. The notice of appeal dated and filed on February 21, 2022 together with its accompanying documents are struck out for non-compliance with section 129 (1) of EMCA and the consequent want of jurisdiction on the part of the tribunal.

12. The appellants shall bear the costs of the appeal.

DATED AND DELIVERED AT NAIROBI, THIS 2ND DAY OF SEPTEMBER 2022Mohammed Balala …………………………………………………………………………………ChairpersonChristine Kipsang…………………………………………………………………Vice ChairpersonBahati Mwamuye……………………………………………………………………………………………………MemberWaithaka Ngaruiya………………………………………………………………………………………………Member