National Environmental and Management Authority [2005] KEHC 9 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Appeal 616 of 2005
Nakumatt Holdings Ltd vNational Environmenta and Management Authority
High Court, at Nairobi November 16, 2005
Mutungi J
Civil Appeal No 616 of 2005
Environmental law– practice and procedure - injunction or stay of
execution against decision of the National Environmental Tribunal –
whether the High Court has jurisdiction to issue such orders – section
130(1) & (2) of Environmental Management and Co-ordination Act, 1999
Environmental law– practice and procedure - appeals – from the National
Environmental Tribunal – procedure for an appeal – Order 41 of the
Civil Procedure Rules – whether invoking the inherent jurisdiction of the
court suffices - practice and procedure.
Nakumatt Holdings Ltd filed an application seeking a temporary stay of
execution of the ruling, order and/or directions of the National
Environmental Tribunal specifically stopping the 2nd respondent from
commencing or continuing with construction works. The applicant averred
that the decision dismissing the appellant’s appeal by the Tribunal paved
way for the 2nd respondents to commence development works which was
in flagrant breach of section 130 of Environmental Management and Coordination
Act, 1999 and it was in the interest justice and the principles of
sustainable development that the orders be granted.
The respondents opposed the application by stating that section 130(1) of
the Environmental Management and Co-ordination Act, 1999 did not grant
the court jurisdiction to issue the orders sought an application for stay
could only be made under the provisions of Orders 41 of the Civil
Procedure Rules.
Held:
1. The jurisdiction of a court or a tribunal to hear a matter is everything
and must be determined at the earliest possible opportunity.
2. The High Court is not granted power, under section 130(1) & (2) of the
Environmental Management and Co-ordination Act, 1999, to issue
injunctions or stay of execution of the ruling, orders and/or directions
of the National Environmental Tribunal even upon hearing of an appeal.
3. The procedure to move the court is clearly stated and laid out under
Order 41 of the Civil Procedure Rules with respect to appeal.
4. Section 3A of the Civil Procedure Act deals with inherent power of the
court to make such orders as may be necessary for the ends of justice or
to prevent abuse of the court process and it is invoked wherer there are
no specific provisions. Section 3A does not permit a litigant to drag his
opponent to the court without summons or notice or giving the other
party an opportunity to defend himself.
Application dismissed.
Cases
Giella v Cassman Brown & Co Ltd[1973] EA 358
Statutes
1. Environmental Management and Co-ordination Act (No 8 of 1999)
sections 130, 130 (1) (2) (4)
2. Civil Procedure Rules (cap 21 Sub Leg) order XLI rule 4
3. Civil Procedure Act (cap 21) sections 3, 3A
Advocates
Mr Oderafor the Appellant.
Mr Kwachfor the Respondent.
November 16, 2005, Mutungi Jdelivered the following Ruling of the
Court.
By a Notice of Motion filed in this court on 5/9/05 under Section 130(1)
and (2) of the Environmental Management and Coordination Act, 199,
the appellant herein, Nakumatt Holdings Limited, sought the following
orders from this court.
1. Already spent
2. Temporary stay of execution of the ruling, orders
and/directions of the National Environmental Tribunal
delivered on 12/8/05 specifically stopping the 2nd
respondent from commencing or continuing with
construction works on the proposed project, pending
the hearing interpartesof this application.
3. Pending the hearing and determination of the appeal
filed herein, the court do issue an order to stay the
execution of the Ruling orders and/or directions issued
by the National Environmental Tribunal on 12/8/05,
specially as to the commencement of construction works
on the project or continuing therewith.
4. Costs of this application.
The application is supported by an affidavit, by Atul
Shah, filed on 5/9/05 and on the grounds, inter alia,
that:
(a) On 12/8/05 the National Environmental Tribunal
(the Tribunal) delivered its decision by which it
dismissed the appellant’s appeal filed before it on 16/
2/2005
(b) In dismissing the said appeal, the Tribunal inter alia
directed that the stop order it had initially issued
restraining the 2nd respondent from carrying on the
disputed project be lifted forthwith thereby paving way
for the 2nd respondent to commence development works.
(c) The said lifting of the stop order is clearly in flagrant
breach and/or violation of Section 130 of the
Environmental Management and Coordination Act as
the 30 days provided for appeal has not expired, neither
has the appellant’s appeal filed herein been heard nor
determined.
(d) Should the 2nd respondent commence construction
works, which is the thrust of the appeal filed herein the
appeal shall be rendered nugatory.
(e) It is in the interest of justice and the principles of
sustainable development that the orders sought herein,
be granted.
In its grounds of opposition the 2nd respondent, the Great Properties Limited
aver, inter aliathat:
1. There is no jurisdiction under section 130(1) and (2)
of the Environmental Management and Co-ordination
Act (EMCA) 1999 to grant the orders sought in the
notice of motion herein, dated 5/9/05.
2. The only powers given to the High Court are those
set out in section 130(4) of EMCA which are all to be
exercised upon hearing the appeal and not before.
3. No order can be made under EMCA to stop the
construction. If any order for stay or injunction can be
made then this can only be pursuant to the Civil
Procedure Rules under Order 41 Rule 4.
4. The appellant has not met the criteria for the grant of
stay under the provisions of Order 41 of the Civil
Procedure Rules. The applicant has not demonstrated:
(a) sufficient case for the grant of an order of stay;
(b) Substantial loss
(c) Not offered security for the orders it is seeking.
5. The applicant is not seeking an injunction and cant
meet the criteria as set out in Giella v Cassman Brown
& Co Ltd[1973] EA 358.
6. There is nothing to stay.
7. The 2nd respondent’s project had been approved by
the 1st respondent is merely complying with the 1st
respondent’s order authorizing it to construct.
8. The 1st respondent has already issued the
Environmental Impact Assessment (EIA) Licence.
9. The applicant is guilty of inordinate delay in making
this application.
10. The 2nd respondent will be prejudiced if the
application’s allowed; has to date incurred huge
expenditure in the project and stands to suffer substantial
loss if the project is not continued.
11. The affidavit of Odera and Atul Shah sworn on 5/9/
05 are incurably defective and should be struck out
At the commencement of the interparteshearing of this application, on 4/
10/05, learned counsel for the applicant, Mr. Odera applied, orally to
include in his application, section 3 of the Civil Procedure Act, cap 21,
Laws of Kenya, which was granted.
Upon perusal of the application herein, the first issue to be dealt with is
one of jurisdiction of this court to hear the application herein, and grant
the reliefs sought, in light of the manner the applicant has chosen to move
this court.
The jurisdiction of a court or tribunal to hear a matter is everything and
must be determined at the earliest possible opportunity. For as soon as the
court determines that it lacks jurisdiction it should down its tools and
utter not even a word more, for what the court does thereafter is a nullity.
Learned Counsel for the appellant/applicant, Mr Odera referred me to
section 130(1) of the Environmental Management and Co-ordination Act,
1999 which gives any aggrieved person by a decision or order of the
Tribunal, the right to appeal to this court, within 30 days of such decision
or order.
Subsection (2) of the same section states that no decision or order of the
Tribunal shall be enforced until the time for lodging an appeal has expired
or until the appeal has been determined. Then follows subsection (4) of
the same section which states what this court may do upon the hearing of
an appeal and at this juncture it must be clearly stated that nowhere is the
High Court granted the power to issue injunctions or stay of execution as
prayed in prayer No 2 and 3 of the application herein even upon hearing
of an appeal, which has not been done.
Going back to the basic issue, the application and the appeal are brought
under unusual provisions. Granted, the applicant/appellant has the right
to appeal to this Court. But under what procedure? In my humble view,
the procedures to move this court are clearly stated and laid out under
order 41 of the Civil Procedure Rules with respect to appeals. The
procedure for other matters such as suits; Chamber Summons; Originating
Summons; Notices of Motion etc are all clearly provided for in the Civil
Procedure Rules pursuant to the provision of the Civil Procedure Act, cap
21, Laws of Kenya.
The applicant herein, and the appeal on which such an application hinges
do not at all appear to have been brought under any of the procedures
above. To reiterate, the right of any person or litigant to access the court,
and this is a constitutional right for every person – natural or corporate –
in Kenya, does not mean that one is not bound by the procedures through
which such a person may move the court. The procedure for appeals is as
per order 41 of the Civil Procedure Rules and therein are stipulated. What
the appellant must do to lodge an appeal. That has not been done in the
appeal herein, and the application based on that appeal.
The submission that the appeal does not fall under order 41 of the Civil
Procedure Rules, and that the application herein for stay of the execution,
does not tell me how else this court can be moved to grant the reliefs and
orders prayed.
The submissions and attempt to rely on sections 3 and 3A of the Civil
Procedure Act, cap 21, Laws of Kenya, are of no assistance to the applicant.
Section 3 applies where there are no specific provisions. Here, the
provisions exist. Section 3A deals with the inherent power of this court to
make such orders as may be necessary for the ends of justice or to prevent
abuse of the court process. This does not mean that the procedures to
move the court are thrown out of the window. Section 3A does not permit
a litigant to drag his opponent to this court, without summons or notice or
giving that other party opportunity to defend himself.
All in all, I find that the applicant has not properly moved this court and
accordingly, under the purported provisions relied upon by the applicant,
this court has no jurisdiction to grant the reliefs prayed.
I totally agree with the learned counsel for the appellant/applicant that
order 41 rule 4 of the Civil Procedure Rules has not been complied with.
And that is the main opposition to the application herein, by counsel for
the respondent, Mr Kwach. But this begs the question. If the application
is outside the Civil Procedure Rules, it makes no sense to say that it should
comply with the provisions of those Rules of Procedure. And that is the
undoing of the application.
The above reasons are sufficient to dispose of this application. But for the
sake of argument, if it were to be assumed, for sake of agreement, that
this court has jurisdiction to grant the orders prayed, what would I say?
The application is for stay of the ruling and the orders of the Tribunal,
dated 12/8/05.
My perusal of what happened is that the Tribunal issued no orders or
ruling. The tribunal had suspended the operations of the respondent herein
pending the outcome of the appeal lodged by the respondent. Upon receipt
of the reports by the 1st respondent, and upon certification that all the
regulations had been complied with, all the Tribunal did was to lift its
own stop orders of suspension. There were no orders issued by the Tribunal.
Upon lifting of the suspension of the construction, the 2nd respondent
simply resumed its construction and project, and went ahead and obtained
the EIA Licence on 31/8/05 from the 1st respondent, not from the Tribunal.
Two points flow from the above findings and conclusions. First this court
does not issue orders in vain, even where it has jurisdiction to issue the
prayed orders. The prayer for stay comes too late after the event. Secondly,
it was submitted by counsel for the appellant that there was violation of
section 130(2), of the Act of 1999 in that the Licence was issued before
the expiration of the time for appeal or before the appeal has been
determined. To the above submissions, it must be recalled that the Tribunal
made no order nor decision as such. And hence the question of enforcement
does not arise. The tribunal only lifted its order of suspension of the project
by the 2nd defendant pending the outcome of the appeal to the Tribunal by
the 2nd respondent. Upon being satisfied that the regulation had been
complied with, by the experts and the reports by the 1st respondent, there
was nothing to wait for but to lift the suspension.
Most importantly, there is no evidence on record, or before me that the
applicant/appellant herein had indicated intention to appeal to this court
immediately or soon after the 12/8/05. Without such ain indication the
argument by the applicant about non-compliance with section 130(2) does
not hold any water. For the 30 days starting when the lifting of the
suspension assuming it was an order or decision, took place. Without that
lifting the period does not start to run.
All in all, and for the reasons above, the application herein is dismissed
with costs against the applicant and in favour of the 2nd respondent.