Michael Abongo Gilbert Makhulo & Mohamed Mmaka (suing on their own behalf and on behalf Marafiki Road Residents) v Director General National Environment Management Authority(Nema) & Mary Wanjiru Kamau [2021] KENET 650 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI

TRIBUNAL APPEAL NO NET 23 OF 2020

MICHAEL ABONGO GILBERT MAKHULO & MOHAMED MMAKA suing on their own behalf and on behalf of MARAFIKI ROAD RESIDENTS ………… APPLICANTS

VERSUS

THE DIRECTOR GENERAL NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY(NEMA)…………………………………….......……… 1ST RESPONDENT

MARY WANJIRU KAMAU …………………………….....…………2ND RESPONDENT

RULING ON NOTICE OF MOTION DATED 25th JUNE 2020.

1. The Applicants filed Notice of Motion Application dated 25th June 2020 seeking the following orders;

a) That this application be certified urgent and be heard exparte in the first instance;

b) That pending inter-parte hearing and determination of this application there be an interim stop order against further construction on LR No.12715/4555 by the 2nd Respondent based on the Environment Impact License Registration Number 0057502 issued on 8th May 2019 by the 1st Respondent;

c) That this Honourable Tribunal do grant to the Applicants to file their intended notice of Appeal out of time as directed by this Honourable Tribunal and as per the annexed draft notice of appeal;

d) That the notice of appeal dated 25th June 2020 be deemed duly filed by the intended appellants; and

e) That the costs of Application be provided for.

2. On 29th July 2020, the 1st Respondent filed a Replying Affidavit sworn by Sophie Mutemi a County Director of Environment, Machakos stating that the applicants have not provided sufficient reason for exercise of discretion by the Tribunal as they became aware of the issuance of the license on June 2019 because of the erected board outside the proposed site and only wrote a letter on October 2019 seeking a copy of the license which was supplied and have now applied for extension of time to apply for the filing of the appeal one year out of time. The 1st Respondent urged the Tribunal to dismiss the application with costs.

3. On 21st August 2020, the 2nd Respondent filed her replying Affidavit stating that this tribunal has no jurisdiction and the application is time barred, frivolous and abuse of the tribunal process because she is the registered proprietor of LR No. 12716/4555(Original Number 12715/426/7) and before commencing her construction of Residential development, she applied and obtained a change of user to multiple dwellings (flats), approval of floor plans and EIA License. The 2nd Respondent urged the Tribunal to dismiss the application with costs.

4. The Applicants filed their submissions on 20th August 2020 while the 2nd Respondent filed written submissions on 27th August 2020.

5. Having considered the submissions by the parties the foremost issue for consideration and determination is whether the Tribunal has jurisdiction under Section 129 of the Environmental Management and Coordination Act.

6. This Tribunal is established under Section 125(1) of EMCA, and its jurisdiction is provided for under Section 129(1) and (2) of EMCA which 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.

(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.

7. The Tribunal under the same Statute has power to make the following orders as provided under Section 129(3) of EMCA:

(3) Upon any appeal, the Tribunal may: -

a) Confirm, set aside, or vary the order or decision in question.

b) Exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the Appeal is brought; or

c) Make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just. (Emphasis mine).

8. There is an admission by the all the parties that there is an Environmental Impact Assessment (EIA) licence number 0057502 issued by the 1st Respondent on 8th May 2019. The Applicants also admit having seen the construction board in June 2019 for construction of maisonette and it is only October 2019 when the applicants saw the construction was for multiple dwellings and sought for a copy of the EIA licence.

9. The Applicants claim that no public participation was done and seek to participate in the EIA process. Environmental Impact Assessment (EIA) is an important and preventive process of examination of the effects of a project on the environment which identifies both negative and positive impacts of any development activity or project, how it affects people, their property and the environment as well as identifies measures to mitigate the negative impacts, while maximizing on the positive impacts. This process is provided for under EMCA and its Regulations, to minimize adverse impacts on the environment and reduce risks so that the safety of the environment can be properly managed at all stages of a project- planning, design, construction, operation, monitoring and evaluation as well as decommissioning stages and any person concerned with the EIA process need to bear in mind the following steps which are undertaken in EIA process namely; scoping and drawing-up of Terms of Reference (TOR) for the study for approval by the Authority, gathering of baseline information through investigation/ research and subsequent submission of EIA Study Report to the Authority, and review of the EIA Study Report by the Authority and relevant lead agencies. Possible decisions regarding an EIA Study Report include approval, approval with conditions or rejection of the Project, Appeals, Implementation of the Project as well as auditing of the Project.

10. In the case of Owner of Motor Vessel Lilian S vs 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.”

11. The Supreme Court of Kenya inSamuel Kamau Macharia vs. Kenya Commercial Bank & 2 Others, Civil Appl. No. 2 of 2011, observed that:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”

12. In Re Continental Credit Finance Ltd Nairobi (Milimani) HCCC No. 29 of 1986 [2003] 2 EA 399, the Court held that:

“If the Court has no jurisdiction over the subject matter of the litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities, and not only avoidable; they are void and have no effect either as estoppel or otherwise, and may not only be set aside at any time by the Court in which they were rendered, but shall be declared void by every court in which they may be presented and jurisdiction cannot be conferred on a Court by consent of the parties and any waiver on their part cannot make up for lack or defect of jurisdiction and the point of jurisdiction may properly be taken in an appellate court and decided there even if it was not raised at the original trial”.

13. The Applicants are aggrieved by the issuance of the EIA license. They knew the project proponent’s intentions in June 2019. . The application dated 25th June 2020 was filed one year after the Applicants became aware of the project. It is clear that the Applicant’s proposed Appeal falls under Section 129(1) of EMCA, thus making it inadmissible at this point for consideration by the Tribunal as the sixty-day period has no room for extension by application or otherwise.

14. Accordingly, we find that the Tribunal does not have jurisdiction to entertain the application dated 25th June 2020 and make the following order.

ORDER.

a. The Applicant’s Notice of Motion application dated 25th June 2020 is hereby dismissed.

b. Each party to bear their own costs .

Parties’ attention is hereby drawn to Section 130 of EMCA.

DATED & DELIVERED at NAIROBI this 7thday of April 2021

MOHAMMED S BALALA……………………CHAIRMAN

CHRSITINE KIPSANG…………………….…….MEMBER

BAHATI MWAMUYE………….…....…………...MEMBER

WAITHAKA NGARUIYA….……………...….….MEMBER

KARIUKI MUIGUA….……………............…….MEMBER