Musembi & 2 others (Suing on behalf of Olepolos Nyumba Ten Welfare Association) v National Environment Management Authority (NEMA) & another [2022] KENET 700 (KLR)

Musembi & 2 others (Suing on behalf of Olepolos Nyumba Ten Welfare Association) v National Environment Management Authority (NEMA) & another (Tribunal Appeal OO3 of 2022) [2022] KENET 700 (KLR) (Civ) (20 September 2022) (Ruling)

Neutral citation: [2022] KENET 700 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal OO3 of 2022

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

September 20, 2022

Between

Jechoniah Wambua Musembi

1st Appellant

Charles Mutai

2nd Appellant

Jacqueline Nyambura Njoroge

3rd Appellant

Suing on behalf of Olepolos Nyumba Ten Welfare Association

and

National Environment Management Authority (NEMA)

1st Respondent

Kajiado County Government

2nd Respondent

(Ruling on Notice of Preliminary Objection dated 24th February 2022)

Ruling

1. The appellant filed the Notice of Appeal dated February 4, 2021 and thereafter the 1st respondent raised an objection by filing a Preliminary Objection February 24, 2022 on the following grounds:a.That this tribunal lacks jurisdiction to hear and determine the matters raised in this appeal and the application in view of the provisions of section 61(3) of the Physical and Land Use Planning Act, 2019. b.This appeal relates to a decision that was made under the section 61(3) of the Physical and Land Use Planning Act, 2019 as such should be heard and determined provided for under section 61(3) of the Physical and Land Use Planning Act, 2019. c.The prayers sought for in the application and the appeal are incapable of being issued by his honourable tribunal.d.The appeal and the application filed herein is thus bad in law, defective, an abuse of the tribunal’s process and the same ought to be dismissed with costs .

2. The 1st respondent filed the written submissions and List of Authorities on 1March 8, 2022 while the appellant filed written submissions on March 29, 2022 The 2nd respondent did not file any written submissions in respect of the Preliminary Objection.

3. Having considered the written submissions by the appellant and the 1st respondent and the authorities and the issue for determination is whether the Appeal relates to a decision under section 61(3) of the PLUPA.

4. The 1st respondent submitted the tribunal has no jurisdiction because the appeal has been filed in section 61(3) of the Physical and Land Use Planning Act 2019 as opposed to section 129(1) and (2) of the Environmental Management and Coordination Act No 8 of 1999 (EMCA).

5. The appellant in their appeal is based on Environmental Management and Coordination Act No 8 of 1999 (EMCA) and seek revocation of the change of user licence NEMA/EIA/PSL 15865, revision of the structural drawings from six to two storeys and an Order of public participation.

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

7. In the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, where it was held that:“a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

The Analysis 8. The appeal was filed on February 4, 2022 and the licence being challenged was issued by the 1st respondent on December 9, 2021 and thus in accordance with section 129(1) of EMC this the appeal is filed within time.

9. The appellants have based their appeal is based on eight grounds that arise concerns on change of user of plot Ngong/Ngong/44181, inadequacy of the EIA process, density of the area, pollution due to proposed septic tank, expected water shortage air and sound pollution, parking shortage, and increased vehicular traffic on the existing 6-meter road.

10. The Preliminary Objection has raised issues which are disputed, with the appellants saying the PLUPA is not a feature of their appeal while the 1st respondent contends it is. The tribunal can therefore only ascertain the veracity of those issues by a full hearing, not at this interlocutory stage and consider the question within the judgement.

Orders 11. The tribunal therefore hereby dismisses the Notice of Preliminary Objection by the 1st respondent.

12. The appeal is hereby fixed for mention on September 27, 2022 for directions on the appellants’ application dated February 11, 2022 that is pending and hearing of the main Appeal.

13. Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI, THIS 20TH 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