Mburu (Suing on his own behalf and on behalf of Faddville Residents Association) v Sasomua Holdings Company Limited & 3 others [2022] KENET 704 (KLR)

Mburu (Suing on his own behalf and on behalf of Faddville Residents Association) v Sasomua Holdings Company Limited & 3 others (Tribunal Appeal 007 of 2022) [2022] KENET 704 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KENET 704 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 007 of 2022

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

September 19, 2022

Between

John Mburu (Suing on his own behalf and on behalf of Faddville Residents Association)

Appellant

and

Sasomua Holdings Company Limited

1st Respondent

Sani Wanjigi

2nd Respondent

Sophie Wanjigi

3rd Respondent

National Environment Management Authority

4th Respondent

Ruling

1. By a notice of appeal dated 15 February the appellant filed the present appeal against the 1st, 2nd, 3rd and 4th respondents respectively on his behalf and on behalf of the Faddville Residence Association. The appellant in his notice of notice of appeal sought the following sole relief.“Stop order against the building construction on plot 209/931/56/Faddville estate, Oleitoktok road, Kileleshwa, Nairobi”

2. In his grounds of appeal, the appellant alleged that the development being undertaken was being done without Environmental Impact Assessment License from the 4th Respondent contrary to EMCA.

3. Other allegations were made in the grounds of appeal, including in paragraph 7 that the project was on 17th December 20221 suspended by the National Construction Authority but despite the suspension the construction was still going on.

4. Having filed the appeal the appellant also proceeded to file a notice of motion dated February 15, 2022 seeking interlocutory order of injunction against the 1st, 2nd and 3rd respondents from undertaking construction of the building. When the matter came up for hearing the 1st, 2nd and 3rd respondents filed a notice of preliminary objection dated March 22, 2022 on the grounds that the honorable tribunal lacked jurisdiction to hear and determine both the appeal and the application in this matter. On its part the 4th respondent who are National Environment Management Authority also filed their notice of preliminary objection dated March 2, 2022. In their preliminary objection National Environment Management Authority stated that the tribunal lacked jurisdiction in that there was no decision identified to warrant any action under section 129 (1) of EMCA. The parties were invited to make submissions on the notice of preliminary objection dated March 2, 2022, which they did, with the 1st 2nd and 3rd respondents filing their joint submissions on April 11, 2022 while the 4th respondents filed its submissions dated April 11, 2022. On their part, the appellants tendered their written submissions dated April 26, 2022 (parties order of description had been changed in the documents filed)

5. Having considered the various submissions of the parties and the notice of preliminary objection, the tribunal on perusal of the notice of appeal and the grounds attached to the notice of appeal finds that there is no decision identified to warrant an appeal against the 4th respondent that is the National Environment Management Authority. No complaint has been made against National Environment Management Authority, nor has any license issued, or decision to deny issuance, by them been questioned. There has been no decision of the National Environment Management Authority or its directors or officers called into question within the appeal.

6. The appeal merely seeks to stop “the construction” without any allegation made or evidence tendered to show that the National Environment Management Authority had made a decision on the matter or refused to act on the matter, after complaint, so warrant this appeal. As a result of this omission on the appellants part, it is clear that this tribunal lacks jurisdiction to hear the present appeal.

7. This tribunal draws its jurisdiction to entertain any appeal filed either from a decision of the National Environment Management Authority in respect of licensing ie as to whether to grant or to refuse a license under section 129(1) or from any decision of the Director General of the National Environment Management Authority or its committee’s or its officers as provided under section 129(2)

8. In the present appeal, no such decision either under section 129(1) or 129 (2) have been shown to exist so as to invoke the jurisdiction of the tribunal. For this reason, the tribunal is left with no alternative but to strike out the appeal in its entirety. We will also not order any costs in the matter and instead direct that each party to bear their own costs.

9. Accordingly the orders we make are that the appeal be struck out with no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2022Mohammed Balala………………………………………………………………ChairpersonChristine Kipsang……………………………………………Vice ChairpersonBahati Mwamuye………………………………………………………………………………MemberWaithaka Ngaruiya………………………………………………………………………MemberKariuki Muigua………………………………………………………………………………Member