https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4219

Afriwell Ltd v Barrow (Sued in his Capacity as Chairperson for and on Behalf of Lower Kabete Residents Association) & 5 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 4219 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4219 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E002 of 2025 EK Wabwoto, J July 9, 2026 Between Afriwell Limited Appellant and Edmund Barrow (Sued in his Capacity as Chairperson for and on Behalf of Lower Kabete Residents Association) 1st Respondent Aline O'connor (Sued in her Capacity as Chairperson for and on Behalf of Lakeview Estate Residents Association) 2nd Respondent Jim Taylor (Sued in His Capacity as Chairperson for and on Behalf of Kibagare Valley Residents Association) 3rd Respondent Nancy Kinyanjui (Sued in her Capacity as Chairperson for and on Behalf of Farasi Lane Residents Association) 4th Respondent The National Environment Management Authority 5th Respondent Nairobi City County Government 6th Respondent (Being an appeal against the whole judgment and decree of the National Environment Tribunal at Nairobi delivered on 29th November 2024 in Tribunal Appeal No. NET 31 of 2022) Judgment 1.This is an appeal from the judgment of the National Environment Tribunal (“the Tribunal”) delivered on 29th November 2024 in Tribunal Appeal No. NET 31 of 2022, Edmund Barrow & 3 others v National Environment Management Authority & Afriwell Limited, Nairobi City County Government being an Interested Party. By that judgment, the Tribunal allowed the appeal of the four Residents Associations named therein, revoked Environmental Impact Assessment Licence No. NEMA/EIA/PSL/21099 issued to Afriwell Limited, directed the restoration of the suit property to its original condition, and condemned Afriwell Limited to bear the costs of the appeal. 2.Afriwell Limited (“the Appellant”), being aggrieved, has moved this Court by way of a Memorandum of Appeal dated 8th January 2025, invoking Section 130 of the Environmental Management and Co-ordination Act, 1999 (“EMCA”), and raising eleven grounds of appeal against the whole of the Tribunal’s judgment. Background 3.The dispute traces its origin to a proposed development on Plot Nos. LR 5979/7 and 5979/9 situated along Lower Kabete Road, within the Spring Valley area of Westlands Sub-County, Nairobi County (“the suit property”). The Appellant, as project proponent, sought and obtained from the National Environment Management Authority (“NEMA”) EIA Licence No. NEMA/EIA/PSL/21099 dated 23rd August 2022, authorising the construction of a petrol service station, cafeteria, bakery, restaurant, a supermarket, a chemist (pharmacy), parking on the ground and lower basement floors, and other associated auxiliary facilities. 4.The four Residents Associations namely the Lower Kabete Residents Association, the Lakeview Estate Residents Association, the Kibagare Valley Residents Association, and the Farasi Lane Residents Association, sued through their respective chairpersons Edmund Barrow, Aline O’Connor, Jim Taylor, and Nancy Kinyanjui were dissatisfied with the issuance of the licence. They moved the Tribunal by a Notice of Appeal dated 7th September 2022, which was, with leave of the Tribunal, amended on 28th September 2022 to incorporate twenty-eight grounds of appeal. Their core grievance was that the Appellant’s project was incompatible with the predominantly residential and single-dwelling character of the neighbourhood, and that it had been approved without adequate public participation. 5.The reliefs sought before the Tribunal included orders setting aside, vacating and/or quashing the EIA licence; orders restraining the Appellant from proceeding with or continuing the impugned construction; and a restoration order in respect of the suit property, including the planting of indigenous trees. 6.The appeal before the Tribunal was contested. Afriwell, as 2nd Respondent, filed a Response to the grounds of appeal dated 4th November 2022; neither NEMA (1st Respondent) nor the Interested Party (Nairobi City County Government) made any filings on the substantive appeal. The appeal proceeded by way of viva voce evidence. The Residents Associations called two witnesses, Salome Muraya and James Thiaine, while Afriwell called two witnesses, Sanjiv Patel and Vincent Oduor. At the close of the hearing, the Tribunal directed the parties to file written submissions; the record reflects that only the Residents Associations complied, filing submissions dated 30th October 2024. 7.The record further discloses that the substantive appeal was punctuated by interlocutory proceedings. By a Notice of Motion under Certificate of Urgency dated 21st September 2023, the Residents Associations applied to cite NEMA, Afriwell, and its directors Patel Udaykumar Dilipkumal and Sanjivkumar Dilip Patel, for contempt, alleging that construction works continued in defiance of an order of the Tribunal. That application was resisted, including on the ground, deposed to in a Replying Affidavit sworn by Patel Udaykumar Dilipkumal, that any status quo order preserved under Section 129(4) of EMCA had lapsed and had not been renewed by a fresh application, such that no subsisting order was being breached. This Court has not been addressed on, and does not understand the Tribunal’s final judgment of 29th November 2024 to have turned on, the outcome of that interlocutory contempt dispute, which this Court treats as a distinct matter not before it on this appeal. 8.Of relevance to the merits, the witness statements of Afriwell’s two witnesses, Sanjiv Patel and Vincent Oduor, placed on record in July 2024, disclose two matters not apparent from the face of the Tribunal’s judgment. First, Mr Patel, the environmental impact assessment expert who prepared the report for the project, deposed that the public had been engaged “through questionnaires” in addition to the meeting at Zen Garden, with photographs, an attendance list, and minutes said to have been submitted to NEMA. Second, Mr Oduor’s statement responding to the Residents Associations’ expert review squarely contended that, under paragraph 2(9)(a) of the Second Schedule to EMCA, a service station is a named medium-risk project, and not a high-risk project, and that the report submitted was, and was accepted by NEMA as, a Comprehensive Project Report. 9.The Tribunal identified a single issue as dispositive of the appeal before it, namely whether the impugned project was “high-risk” within the meaning of the Environmental (Impact Assessment and Audit) Regulations, 2003 (“the EIA Regulations”), as read together with the Second Schedule to EMCA, and, as a corollary, whether the public participation conducted by Afriwell prior to the issuance of the licence met the applicable statutory standard. 10.On the question of risk categorisation, the Tribunal drew the distinction as articulated in Pattni & 8 others v National Environment Management Authority & another (Environment and Land Appeal E087 of 2022) [2024] KEELC 286 (KLR) between an Environmental Impact Assessment Project Report, which suffices for low- and medium-risk projects, and an Environmental Impact Assessment Study Report, which the Second Schedule to EMCA renders mandatory for high-risk projects. Applying the criteria of whether the activity is “out of character with its surroundings” or involves “any structure of a scale not in keeping with its surroundings”, and drawing on the reasoning in John Kabukuru Kibicho & another v County Government of Nakuru & 2 others [2016] eKLR, the Tribunal found the project to be high-risk. Central to that finding was undisputed evidence that the suit property had been the subject of an application for, and grant of, change of user from residential to commercial use, notified to the Appellant on 22nd September 2021, a fact the Tribunal treated as demonstrating that the project altered the existing residential character of the area a conclusion corroborated by NEMA’s own site visit report, which recorded that the neighbourhood “comprises of mostly single dwelling developments.” 11.Having found the project to be high-risk, the Tribunal held that the more onerous public participation requirements of Regulation 17 of the EIA Regulations applied, requiring, among other things, the holding of at least three public meetings with affected parties, publication of notices in a nationwide newspaper for two successive weeks, radio announcements in official and local languages, and the posting of notices in the vicinity of the project site. On the evidence, the Tribunal found that Afriwell had conducted only a single public meeting, held on 1st July 2022 at Zen Garden, and had adduced no evidence of compliance with the remaining requirements. Applying the principle in Mohamed Ali Baadi and Others v Attorney General & 11 Others [2018] eKLR, the Tribunal concluded that Afriwell had failed to conduct public participation to the standard required by law. 12.On the strength of these findings, the Tribunal made the following orders: (a) EIA Licence No. NEMA/EIA/PSL/21099 issued to Afriwell was revoked; (b) Afriwell was directed to restore Plot LR Nos. 5979/7 and 5979/9 to their original condition and state prior to the impugned construction, and in particular to plant indigenous trees; and (c) Afriwell was condemned to bear the costs of the appeal. The instant appeal 13.Aggrieved by the whole of the Tribunal’s judgment, the Appellant raises the following grounds of appeal in its Memorandum of Appeal dated 8th January 2025:(i)The Honourable Tribunal erred in law and in fact in allowing the 1st – 4th Respondents’ appeal despite the fact that they did not prove their case on a balance of probabilities.(ii)The Honourable Tribunal erred in law and in fact in ignoring the unrebutted Appellant’s evidence that the project was being carried out on a commercial property and hence the project would not be out of character with the surroundings.(iii)The Honourable Tribunal erred in law and in fact in ignoring the Appellant’s evidence that it had lawfully and procedurally obtained a change of use of Plot LR No. 5979/7 & 5979/9 located along Lower Kabete Road within Upper Spring Valley Area, and hence the property was suitable for the establishment of a petrol service station and convenient auxiliary facilities.(iv)The Honourable Tribunal erred in law and in fact in ignoring the Appellant’s evidence that sufficient public participation was conducted during the process of change of user, thereby contradicting the provisions of the Physical and Land Use Planning Act as well as the jurisprudence so far developed by the Supreme Court regarding the adequacy or otherwise of public participation activities.(v)The Honourable Tribunal erred in law and in fact in holding that the Appellant did not conduct sufficient public participation prior to the issuance of the Environmental Impact Assessment Licence NEMA/EIA/PSL/21099 in the absence of any evidence to that effect.(vi)The Honourable Tribunal erred in law and in fact in holding that the Appellant submitted an Environmental Impact Assessment Project Licence Report while in fact it had provided an Environmental Impact Assessment Study Report, and disregarding the Appellant’s evidence thereto in toto.(vii)The Honourable Tribunal fundamentally erred in law and in principle in considering the Appellant’s project as “High Risk” rather than “medium risk” as provided for in Clause 9 of the Second Schedule of the Environmental Management and Co-ordination Act, in the absence of any evidence to that effect.(viii)The Honourable Tribunal exhibited open bias as against the Appellant.(ix)The Honourable Tribunal violated the Appellant’s rights to access justice under Article 48 of the Constitution as well as its right to fair hearing under Article 50 of the Constitution.(x)The Honourable Tribunal unlawfully shifted the burden of proof to the Appellant.(xi)The Honourable Tribunal erred in law and in fact by failing to appreciate that Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 could not contradict a clear provision of the parent legislation. 14.The Appellant prays that this Court allows the appeal, sets aside the judgment and decree of the Tribunal delivered on 29th November 2024, and awards it the costs of the appeal. 15.When the appeal came up for directions on 5th May 2026, the same was admitted for hearing and it was directed that it be canvassed by way of written submissions. The Appellant’s Submissions 16.The Appellant’s filed written submissions dated 22nd June 2026 through the firm of Rachier & Amollo LLP Advocates. In them, the Appellant elaborates upon its grounds of appeal and frames five issues for this Court’s determination, namely:(a)whether the Tribunal’s categorisation of the project as high-risk was based on any law;(b)whether the Tribunal erred in holding that the Appellant did not conduct sufficient public participation prior to the issuance of the Licence;(c)whether the Tribunal erred in ignoring evidence that the suit property was already a commercial-use property;(d)whether the Tribunal unprocedurally shifted the burden of proof to the Appellant; and(e)whether the Tribunal exhibited bias against the Appellant in violation of Articles 48 and 50 of the Constitution. 17.On the first issue, the Appellant submits that the Second Schedule to EMCA classifies shopping centres, commercial centres and complexes, business premises, shops and stores not exceeding ten thousand square metres as medium-risk projects, and that the impugned development a petrol station with an ancillary cafeteria, bakery, restaurant, supermarket and pharmacy falls squarely within that classification. It contends that the Tribunal’s classification of the project as high-risk found no basis in the Second Schedule, that the Tribunal impermissibly treated the Appellant’s own application for change of user as evidence of high risk despite no such criterion appearing anywhere in the Second Schedule, and that, invoking the principle of legality, a proponent cannot be penalised for failing to meet a standard that is nowhere prescribed by law. The Appellant further faults the Tribunal for failing to give reasons distinguishing “sufficient” from “insufficient” public participation, relying on Peter M. Kariuki v Attorney General [2014] eKLR for the proposition that this Court, sitting as a first appellate court, must independently re-evaluate the evidence and satisfy itself that the Tribunal’s conclusions are consistent with it. 18.On the second issue, the Appellant submits that it adduced substantial and, in its submission, uncontroverted evidence of compliance with the public participation requirements under EMCA and the EIA Regulations comprising minutes of meetings, newspaper advertisements, and a notice in the Kenya Gazette inviting public comment none of which the Tribunal evaluated or weighed against the statutory requirements before concluding, in general terms, that participation was insufficient. The Appellant further points to the fact that the first objection to the project was raised by the residents a full year after the change of user was advertised, a fact it contends bears on the good faith of the objection and which the Tribunal did not address. Relying on Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & 17 Others [2015] eKLR for the proposition that public participation requires no more than a reasonable opportunity to participate and genuine consideration of the views received, the Appellant submits that NEMA’s own satisfaction, as the expert regulator, that these requirements had been met is entitled to deference, and that the Tribunal’s contrary finding is unsupported by the evidence. 19.On the third issue, the Appellant submits that it adduced unrebutted evidence that the suit property was a commercial-use property compatible with the intended development, that it had lawfully and procedurally obtained change-of-user approval from the Nairobi City County Government confirming the property’s suitability for a petrol service station and ancillary facilities, and that the Tribunal, in concluding that the mere act of applying for a change of user was sufficient to establish that the project would materially alter the surrounding environment, articulated a proposition with no foundation in law. The Appellant further contends that the Tribunal’s failure to make any finding on the legality of the change of user, having raised the issue, denied it a fair hearing. 20.On the fourth issue, the Appellant relies on World Explorers Safaris Limited v Cosmopolitan Travel Limited & another [2021] eKLR and Mbuthia Macharia v Annah Mutua Ndwiga & another, Civil Appeal No. 297 of 2015 [2017] eKLR, for the settled principle that the legal and evidential burden of proof lies, in the first instance, on the party asserting a fact, and submits that the Tribunal, by requiring the Appellant to demonstrate the sufficiency of its public participation notwithstanding that the Respondents had not particularised the alleged insufficiency, unlawfully and unprocedurally reversed that burden contrary to Section 107 of the Evidence Act. 21.On the fifth and final issue, the Appellant submits that the Tribunal exhibited bias, evidenced by its selective consideration of the evidence, its disregard of the Appellant’s unrebutted evidence including the EIA Licence itself, which the Appellant contends is proof that public participation was undertaken and considered by NEMA and its imposition of compliance requirements not supported by law. Relying on DPP v Kilbourne for the test of relevance and on Metropolitan Properties Co. (F.G.C.) Ltd v Lannon and Others [1968] 3 All ER 304 for the proposition that justice must be seen to be done, the Appellant submits that a right-minded observer, aware of the Tribunal’s selective treatment of the evidence, would reasonably apprehend bias, in violation of Articles 48 and 50 of the Constitution. The 1st to 4th Respondents’ Submissions 22.The 1st to 4th Respondents oppose the appeal through written submissions dated 26th June 2026 filed by the firm of CM Advocates, LLP. They raise two preliminary points. First, they urge the Court to disregard and expunge the Appellant’s written submissions, the same having been filed and served only on 26th June 2026 the very date fixed for the Respondents’ submissions in disregard of the directions issued on 5th May 2026, without explanation and without leave of the Court. Secondly, and more fundamentally, they contend that the appeal itself was lodged out of time: the Tribunal’s judgment was delivered on 29th November 2024, yet the Memorandum of Appeal is dated and was lodged on 8th January 2025, some forty days later and well outside the thirty-day period prescribed by Section 130(1) of EMCA. Relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2014] eKLR, Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, Movement & 4 others v National Environment Management Authority (NEMA) & another; Kenya National Highways Authority (Interested Party) (Environment and Land Appeal E011 of 2022) [2023] KEELC 21741 (KLR), Aprim Consultants v Parliamentary Service Commission & another (Civil Appeal E039 of 2021) and Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, they submit that the statutory timeline is not a procedural nicety but a substantive condition precedent to the exercise of jurisdiction; that upon its lapse the right of appeal was extinguished; and that proceedings founded upon a time-barred appeal are a nullity upon which nothing can be built. 23.On the merits, and without prejudice to the foregoing, the 1st to 4th Respondents submit that the Tribunal’s decision was legally sound, factually accurate and procedurally robust. On risk classification, they submit that the proposed development a petrol service station together with a restaurant, cafeteria, pharmacy, bakery, supermarket, warehouse, offices, two levels of parking and ancillary facilities lies within a neighbourhood which NEMA’s own site visit report described as comprising mostly single dwelling developments; that not a single similar project exists in the neighbourhood, as the Appellant’s own witness confirmed; and that the project therefore engaged paragraphs 3(1)(a) and (b) and 3(2)(a) of the Second Schedule to EMCA as substituted by Legal Notice No. 31 of 2019 an activity out of character with its surrounding, a structure of a scale not in keeping with its surrounding, and a major change in land use rendering it a high-risk project for which a full EIA Study, and not a mere project report, was mandatory. They rely on Pattni & 8 others v NEMA & another (supra), Kassam & 12 others v Shah & 16 others [2025] KEELC 5354 (KLR) and John Kabukuru Kibicho (supra), and invoke the definitions of “change of user” and “land use” under the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021 in aid of the submission that the development effected a major change in land use. 24.On the burden of proof, the 1st to 4th Respondents submit that they fully discharged their initial legal burden by laying a coherent and credible evidential foundation, whereupon the evidential burden shifted to the Appellant, who failed to discharge it. They rely on Langton Investments Limited v Meron Limited & 2 others [2026] KEELC 1321 (KLR), citing Muriungi Kanoru Jeremiah v Stephen Ungu M’Mwarabua [2015] eKLR on the distinction between the legal and evidential burden, and on HMH v Kenya Wildlife Service [2022] KENET 760 (KLR) on the shifting of the evidential burden before specialised tribunals. 25.On the integrity of the EIA process itself, the 1st to 4th Respondents catalogue what they term false, inaccurate and misleading information underpinning the licence application, namely: that the EIA Project Report claimed an extensive analysis of hydrocarbons whose results were said to be presented in a “section 5.6” which does not exist in the Report, as the Appellant’s witness admitted; that the Report made no mention whatsoever of the Mathare River, situated barely 100 to 150 metres from the sloping project site, despite rivers and drainage systems being mandatory considerations under paragraph 5 of the Second Schedule to the EIA Regulations, and despite a written complaint dated 24th June 2022 that clearance of the site had already occasioned soil erosion into that river; that duly completed feedback forms in which their members overwhelmingly objected to the project were omitted from the Report submitted to NEMA, which consequently never had sight of the objections, contrary to the Tribunal’s holding in Erdemann Property Limited v NEMA & Others, NET Appeal No. 21 of 2019, that NEMA is required to review all opinions received in the EIA process; that the Report asserted that liquid waste would be discharged into a sewer line serving the area when no such sewer line exists; that the Report was attributed to Environmental Management Consultancy although the exercise was undertaken by iPlan Consult (Intl) Ltd, in contravention of the NEMA Code of Practice and Professional Ethics for EIA Experts; and that by a letter dated 25th July 2022 the Energy and Petroleum Regulatory Authority observed that the proponent had not conducted baseline studies of soil, groundwater or surface water. They rely on National Environment Management Authority & another v Gerick Kenya Limited [2016] eKLR on the consequences of tendering a false and misleading EIA report, and adopt the Expert Review and Opinion of the EIA Report dated 26th June 2024. 26.On public participation, the 1st to 4th Respondents submit that only a single meeting was held, on 1st July 2022 at Zen Garden; that documents promised to the residents at that meeting including the change of user approval, approved plans and the capacity of the petrol station were never availed notwithstanding a written follow-up of 2nd July 2022; that the follow-up meetings agreed upon were never held; and that participation conducted without access to relevant information is not effective participation. They rely on Mui Coal Basin Local Community (supra) on the minimum content of public participation, Mohamed Ali Baadi (supra) on the requirement that participation be real and not a bureaucratic formality, and John Kabukuru Kibicho (supra) on the necessity of traceable, documented engagement of directly affected persons. 27.On the allegation of bias, the 1st to 4th Respondents submit that allegations of bias are grave, must be pleaded with precision and proved by cogent evidence, and that an adverse verdict can never, without more, be equated to bias. They rely on Republic v Independent Electoral & Boundaries Commission & another Ex parte Coalition for Reforms and Democracy (CORD) [2017] eKLR, Edward Mwangi Macharia v Maina & Maina Advocates [2019] KEHC 3624 (KLR) and Athi Paper Mills Limited v Dakawou Transport Limited [2023] KEELC 17854 (KLR), citing Republic v Mwalulu & 8 Others [2005] 1 KLR. They pray that the appeal be dismissed with costs and the Tribunal’s decision upheld. The 6th Respondent’s Submissions 28.The 6th Respondent, the Nairobi City County Government, filed written submissions dated 26th June 2026 through the firm of Wanjiku Ndung’u & Company Advocates. It was an Interested Party before the Tribunal, having been enjoined by virtue of issuing the Change of User approval in respect of the suit property. Its position is a qualified one: it supports the appeal only to the extent that the Tribunal is said to have erred in law by questioning, disregarding and effectively invalidating a Change of User approval lawfully granted pursuant to the Physical and Land Use Planning Act, 2019. 29.The 6th Respondent submits that jurisdiction is everything and that without it a tribunal cannot take one more step, citing Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1; that the Tribunal, established under Section 125 of EMCA with its appellate jurisdiction conferred by Section 129, is confined to disputes arising from decisions of NEMA under EMCA; that the Change of User approval was not a decision under EMCA but an administrative planning decision made under the Physical and Land Use Planning Act, 2019 by the County Planning Authority in exercise of its constitutional mandate under the Fourth Schedule to the Constitution; and that one statutory body cannot assume jurisdiction reserved to another, citing Mutanga Tea & Coffee Company Limited v Shikara Limited & another (Civil Appeal 54 of 2014) [2015] eKLR. 30.The 6th Respondent further submits that the Change of User approval was lawfully processed and issued upon compliance with the applicable statutory procedures; that an administrative decision made by a competent public authority enjoys a presumption of legality and remains valid and binding unless and until set aside by a court or tribunal with the requisite jurisdiction, citing Republic v Kenya Revenue Authority Ex parte Shake Distributors Limited [2012] eKLR and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (Civil Appeal 46 of 2012) [2016] eKLR; that the approval has never been quashed, revoked or declared unlawful by any competent court; and that the appeal should therefore be allowed to the extent that it challenges the Tribunal’s findings on the validity and legal effect of the Change of User approval. 31.The 5th Respondent, NEMA, which did not oppose the appeal before the Tribunal, filed no submissions in this appeal. Issues for determination 32.Having considered the Memorandum of Appeal, the record of appeal, the supplementary record of appeal, the judgment of the Tribunal, and the respective written submissions of the Appellant, the 1st to 4th Respondents and the 6th Respondent, this Court is satisfied that the following seven issues arise for determination:(i)Whether the appeal is properly before this Court;(ii)Whether the Tribunal erred in classifying the impugned project as “high-risk”;(iii)Whether the Tribunal erred in finding that the public participation conducted by the Appellant was insufficient and in revoking the licence;(iv)Whether the Tribunal made findings invalidating the Change of User approval issued by the 6th Respondent, and with what effect;(v)Whether the Tribunal’s decision was against the weight of the evidence, or was occasioned by an unlawful reversal of the burden of proof;(vi)Whether the Tribunal violated the Appellant’s right to fair hearing and access to justice, whether Regulation 17 of the EIA Regulations is ultra vires the parent Act, and whether the Tribunal exhibited bias; and(vii)What orders should issue, including as to costs. 33.It is well settled that on a first appeal, this Court is enjoined to re-evaluate, re-assess and re-analyse the evidence on the record afresh and to arrive at its own independent conclusions, both on the facts and on the law, bearing in mind only that it neither saw nor heard the witnesses testify, and making due allowance for that disadvantage see Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123. This duty applies with equal force to an appeal from a specialised tribunal such as the National Environment Tribunal, brought under Section 130 of EMCA. The Court will, however, be slow to disturb findings of fact resting on the credibility of witnesses whom the Tribunal saw and heard, and will only interfere where such findings are shown to be based on no evidence, a misapprehension of the evidence, or the application of wrong principles. This is the same duty invoked by the Appellant by reference to Peter M. Kariuki v Attorney General [2014] eKLR. The duty, however, presupposes an appeal that is properly before the Court; it is to that threshold question that I turn first. Analysis and determination Whether the appeal is properly before this Court 34.By their written submissions, the 1st to 4th Respondents contend that the appeal is not properly before this Court, the same having been lodged out of time. They point out that the judgment of the Tribunal was delivered on 29th November 2024, that the Memorandum of Appeal is dated and was lodged on 8th January 2025, and that the thirty-day period prescribed by Section 130(1) of EMCA had by then lapsed, with the consequence, so it is urged, that the appeal is incompetent and this Court is without jurisdiction to entertain it. 35.It is, however, apparent from the record that the objection as to the appeal having been filed late was first made out in the Respondents’ written submissions. No preliminary objection was ever filed; no application was filed to challenge the competence of the appeal; and the Appellant was never put on notice to respond to the same. As such, the objection was mounted in a manner that denied the Appellant any opportunity to be heard upon it as to the circumstances in which the appeal came to be filed, or submissions in answer, contrary to the dictates of a fair hearing under Article 50(1) of the Constitution. The infirmity is not one of mere form. As was held in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a preliminary objection consists of a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct, and it cannot properly be raised if any fact has to be ascertained. An objection founded on limitation is jurisdictional in its consequence, but it is factual in its foundation, and the celebrated dictum in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 that a court without jurisdiction must down its tools presupposes that the want of jurisdiction is apparent upon facts that are ascertained or admitted. An objection that would shut the door of the Court in a litigant’s face on jurisdictional grounds cannot be determined upon facts canvassed for the first time in submissions, to which the other party has had no opportunity to respond. The authorities cited by the Respondents, including Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2014] eKLR, which address the want of a power of enlargement of time and the principles governing extension, are not engaged, for they all presuppose that the fact of delay has first been properly established; that anterior question was never properly placed before this Court for determination. 36.The position is placed beyond argument by binding authority of the superior courts. Parties are bound by their pleadings, which in turn delimit the issues upon which a court may properly pronounce. In Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR, the Court of Appeal held that a court which determines a matter upon issues not properly placed before it by the parties commits a reversible error, however well-intentioned it may be. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, the Court of Appeal was equally emphatic that submissions cannot take the place of evidence, being no more than the parties’ “marketing language”. It follows that written submissions can neither originate a jurisdictional challenge whose factual substratum was never pleaded, nor supply the evidentiary foundation for it. To uphold the objection in these circumstances would be to condemn the Appellant unheard, contrary to the principle affirmed by the Court of Appeal in Onyango Oloo v Attorney General [1986-1989] EA 456 that a decision arrived at in breach of the right to be heard cannot be allowed to stand. 37.In the result, the objection, raised in the manner it was, cannot be sustained and is hereby declined. Further, and in any event, this Court, in applying Section 130(5) of EMCA, declines to strike out the appeal and has instead decided to consider the same on its merits. The appeal shall accordingly be treated as properly before this Court, and the first issue is answered in the affirmative. The way is therefore open to the merits. 38.The appeal being properly before the Court, and the parties having fully argued the merits, this Court now proceeds, in discharge of its duty as a first appellate court set out above, to re-evaluate, re-assess and re-analyse the evidence on the record afresh and to reach its own independent conclusions on the issues framed. Whether the Tribunal erred in classifying the impugned project as “high-risk” 39.The Second Schedule to EMCA, as substituted by Legal Notice No. 31 of 2019, creates three categories of projects for purposes of environmental impact assessment: low-risk, medium-risk, and high-risk. The consequence of the categorisation is significant: under Regulation 7 of the EIA Regulations (as amended by Legal Notice No. 32 of 2019), a low- or medium-risk project proceeds on a project report, escalated to a comprehensive project report where NEMA considers the project may have significant adverse impact, whereas a high-risk project must be the subject of a full environmental impact assessment study, attracting the more onerous public participation regime under Regulation 17. This is the framework accurately described in Pattni (supra) and reiterated in Kassam & 12 others v Shah & 16 others [2025] KEELC 5354 (KLR), both relied upon by the 1st to 4th Respondents. 40.This Court has independently examined the Second Schedule as so substituted. Paragraph 2 thereof, headed “Medium Risk Projects”, lists at sub-paragraph (9), under the heading “Hydrocarbons projects”, the following:“(a)service stations;(b)LPG filling plant; and(c)lubricant blending facilities.” Paragraph 3, headed “High Risk Projects”, lists at sub-paragraph (1), headed “General”, the criteria “(a) an activity out of character with its surrounding; and (b) any structure of a scale not in keeping with its surrounding”; at sub-paragraph (2)(a), “major changes in land use”; and separately, at sub-paragraph (11), a distinct category of hydrocarbon projects confined to depots and refinery facilities, depots for natural gas, oil and gas field development, and oil refineries and petro-chemical works that is, large-scale storage, extraction and processing installations, not retail service stations. 41.It follows that a service station is a project specifically and expressly named by the legislature as a medium-risk project. The general criteria in paragraphs 3(1) and 3(2)(a) of the Second Schedule activities out of character with their surroundings, structures of a scale not in keeping with their surroundings, and major changes in land use read in their proper context, operate as residual, catch-all criteria for projects not otherwise specifically assigned a tier by the Schedule. On ordinary principles of statutory construction, a specific provision is not displaced by a general one where both could otherwise apply to the same subject matter; effect must, so far as possible, be given to both. To hold that a project expressly named as medium-risk migrates to the high-risk tier whenever its surroundings are residential would be to render the specific listing in paragraph 2(9)(a) largely nugatory, since service stations are, in the nature of things, very commonly proposed in or near residential neighbourhoods. Neither Pattni nor Kassam decides otherwise: both state the two-tier assessment framework, but neither holds that an activity specifically assigned to the medium-risk tier is re-classified by reference to the general criteria. John Kabukuru Kibicho (supra), on which both the Tribunal and the 1st to 4th Respondents rely, was decided in 2016, before the Second Schedule was recast by Legal Notice No. 31 of 2019, and did not concern the interaction between a specific listing and the general criteria. 42.Nor is there any provision of the Second Schedule that identifies an application for, or grant of, change of user as a criterion of risk classification. Compliance with one regulatory regime obtaining development permission under the Physical and Land Use Planning Act cannot, without express statutory warrant, be transmuted into an aggravating factor under a different statute administered for a different purpose. There is, further, no suggestion on this record that the development, considered as a whole, comprises a shopping centre or commercial complex exceeding the ten-thousand-square-metre threshold in paragraph 2(1)(d) of the Second Schedule; the components disclosed by the Licence read most naturally as a service station with incidental convenience facilities. 43.This Court accordingly finds that the impugned project, properly categorised, is a medium-risk project by virtue of paragraph 2(9)(a) of the Second Schedule to EMCA; that the Tribunal’s contrary finding, which never engaged with the specific listing squarely raised in Mr Oduor’s witness statement, cannot stand; and that Grounds 6 and 7 succeed to that extent. Whether the Tribunal erred in finding that the public participation conducted by the Appellant was insufficient and in revoking the licence 44.The consequence of the misclassification is far-reaching. The Tribunal’s finding of inadequate public participation was reached by reference to Regulation 17 of the EIA Regulations, which by its own terms applies during the conduct of an environmental impact assessment study that is, to high-risk projects. Once the project is correctly recognised as medium-risk, Regulation 17 has no application to it, and the Tribunal’s central finding is seen to rest upon a legal yardstick that did not govern the project at all. The applicable requirements are instead those attaching to a project report and, where escalated, a comprehensive project report under Regulation 7 including the requirement in Regulation 7(4)(m) of a strategic communication plan ensuring inclusive participation and a summary of issues discussed at the public participation forum all underpinned by Section 58 of EMCA and by the constitutional imperatives of public participation in Articles 10(2)(a) and 69(1)(d) of the Constitution. Whatever the applicable tier, participation must be effective: the litmus test, as the three-judge bench held in Mui Coal Basin Local Community (supra), is effectiveness, and as Mohamed Ali Baadi (supra) emphasises, participation must be real and not a bureaucratic formality. But it is equally settled by the same authorities that public participation is not a plebiscite: it entails a reasonable and meaningful opportunity to be heard, not a guarantee that every view expressed will prevail, and the dissatisfaction of objectors with the eventual outcome is not, without more, proof that the process was ineffective. 45.Re-evaluating the record against the correct standard, this Court is satisfied that the participation undertaken met the threshold applicable to a medium-risk project. The record discloses that the proponent administered questionnaires within the neighbourhood; that a public consultative meeting was convened on 1st July 2022 at Zen Garden, attended by members of the 1st to 4th Respondents’ associations, at which the project was presented and views received; that the project was advertised in the print media and the application published in the Kenya Gazette; and that NEMA, before issuing the licence, conducted its own site inspection. The residents’ objections were in fact formulated, articulated and pressed first to the proponent and the regulator, and thereafter, comprehensively, in a twenty-eight-ground appeal before the Tribunal at which they called evidence and cross-examined the proponent’s witnesses. That is not the profile of a community shut out of the process. The complaints that certain documents promised at the meeting of 1st July 2022 were not thereafter supplied, and that follow-up meetings there mooted were not convened, are matters legitimately to be weighed; but measured against the Regulation 7 regime which does not prescribe the sequence of public meetings and exchange of documentation that Regulation 17 contemplates for study-tier projects they fall short of demonstrating that the participation conducted was ineffective in the Mui Coal Basin sense. 46.There remains the cluster of complaints directed at the integrity of the report upon which NEMA acted: that duly completed feedback forms recording the residents’ objections were omitted from it; that it referred to a hydrocarbon analysis in a “section 5.6” said not to exist; that it made no mention of the Mathare River; that it misdescribed the waste-water disposal arrangements; and that it was attributed to a consultancy other than the firm that undertook the exercise. These are serious allegations, and this Court does not make light of them. They suffer, however, in this appeal, from a decisive forensic difficulty: they did not form the basis of the Tribunal’s decision. The Tribunal revoked the licence upon two operative findings that the project was high-risk, and that the participation conducted fell short of Regulation 17 both of which have been shown to rest upon error of law. The Tribunal made no findings upon the integrity of the report, and the falsity of the report was not pleaded before it as a distinct ground of challenge. The principle that parties are bound by their pleadings the very principle the Tribunal itself rightly applied in declining to adjudicate upon the authenticity of the change of user, an approach this Court affirms below cuts both ways. It would be incongruous for this Court to uphold the Tribunal’s refusal to entertain unpleaded challenges while simultaneously affirming its orders upon grounds that were neither pleaded before it nor determined by it. The power of a first appellate court to affirm a decision on grounds other than those relied upon below is a real one, but it extends to grounds arising squarely upon findings properly made or upon facts truly beyond controversy; it does not extend to the making of first-instance findings of fact upon contested technical material which the tribunal of first instance never adjudicated. 47.Declining to determine those complaints in this appeal does not leave them without a forum, nor the environment without a guardian. NEMA is the statutory custodian of the integrity of the environmental assessment process, and the statutory scheme of Section 58 of EMCA presupposes candour on the part of the proponent: the regulator’s decision is only as sound as the information laid before it. NEMA retains, under EMCA and the Environmental (Impact Assessment and Audit) Regulations, continuing supervisory jurisdiction over the licence and the project including the power to require environmental audits under Section 68 of EMCA, powers of inspection, and the powers exercisable where a licence is shown to have been procured upon false, inaccurate or misleading information, as recognised in National Environment Management Authority & another v Gerick Kenya Limited [2016] eKLR. Nothing in this judgment forecloses the exercise of those powers should the matters raised, upon due inquiry, be found to warrant it; and nothing in it precludes the 1st to 4th Respondents from pursuing such remedies as the law allows in that behalf. The question before this Court is the narrower one: whether the revocation and restoration orders can stand upon the reasons the Tribunal gave. For the reasons set out above, they cannot. 48.Accordingly, Grounds 1, 4 and 5 succeed. The Tribunal’s orders revoking Environmental Impact Assessment Licence No. NEMA/EIA/PSL/21099 and directing the restoration of the suit property, founded as they were upon a misclassification of the project and upon a public participation standard that did not apply to it, cannot be sustained and fall to be set aside. Whether the Tribunal made findings invalidating the Change of User approval issued by the 6th Respondent, and with what effect 49.The Tribunal declined to make any substantive finding on the authenticity of the change of user obtained by the Appellant, holding that the challenge to its authenticity, raised only in cross-examination and not in the pleadings, offended the settled principle that parties are bound by their pleadings. This Court finds no error in that approach; a tribunal ought not make findings on matters not properly pleaded, however tempting the invitation in cross-examination may be. Ground 3 fails. As to Ground 2, the contention that the project stood on property already commercial in character was directly contradicted by NEMA’s own site visit report describing the surrounding area as predominantly single-dwelling residential, and by the fact that the Appellant found it necessary to apply for and obtain change-of-user approval; the medium-risk classification this Court has upheld rests on the specific statutory listing of service stations, not on any finding that the property or its surroundings were already commercial. Ground 2 also fails. 50.The 6th Respondent’s complaint, with respect, rests on a misapprehension of what the Tribunal decided. The Tribunal did not quash, revoke or declare unlawful the Change of User approval; it referred to the change of user as an evidentiary marker bearing on the character of the neighbourhood for purposes of the EIA risk classification. Whether or not that inference was sound and this Court has explained why the classification it supported was not the drawing of it did not amount to an adjudication upon the validity of the planning approval. Indeed, the 1st to 4th Respondents themselves expressly disavow, in their submissions, any challenge before the Tribunal or in this appeal to either the change of user application or its approval. 51.It follows that the apprehension underlying the 6th Respondent’s qualified support for the appeal is misplaced. The Change of User approval, being an administrative decision of a competent public authority made under the Physical and Land Use Planning Act, 2019, enjoys the presumption of legality articulated in Republic v Kenya Revenue Authority Ex parte Shake Distributors Limited [2012] eKLR and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (supra), and remains valid and of full effect unless and until set aside by a court or tribunal of competent jurisdiction. Nothing in the Tribunal’s judgment purported to set it aside, and nothing in this judgment does so. The 6th Respondent needed no order of this Court to secure a position the law already secures, though for the avoidance of doubt a clarificatory order will nonetheless be reflected in the disposition. The broader question of the limits of the Tribunal’s jurisdiction over planning approvals, ably argued by reference to Mutanga Tea & Coffee (supra), does not, on this record, arise for decision. Whether the Tribunal’s decision was against the weight of the evidence, or was occasioned by an unlawful reversal of the burden of proof 52.This Court would not read the Tribunal’s judgment as reversing the burden of proof. The authorities relied upon by both sides World Explorers Safaris and Mbuthia Macharia for the Appellant, and Langton Investments Limited v Meron Limited & 2 others [2026] KEELC 1321 (KLR) and HMH v Kenya Wildlife Service [2022] KENET 760 (KLR) for the 1st to 4th Respondents in truth state the same orthodox principle: the legal burden rests on the party asserting a fact, and the evidential burden shifts once a coherent and credible foundation is laid that satisfies the threshold of probability. Before the Tribunal, the Residents Associations did not rest on bare assertion; they laid an evidential foundation for their complaints, whereupon the evidential burden shifted to the proponent in the ordinary operation of Sections 107 to 112 of the Evidence Act. That is not a reversal of the burden of proof, and Ground 10, as framed, fails. Where the Tribunal fell into error was not in the allocation of the burden but, as already held, in the legal standard against which the material before it was measured; nothing in the disposition of Ground 10 detracts from that conclusion. Whether the Tribunal violated the Appellant’s right to fair hearing and access to justice, whether Regulation 17 of the EIA Regulations is ultra vires the parent Act, and whether the Tribunal exhibited bias 53.Ground 9 alleges, without particulars, a violation of the Appellant’s rights under Articles 48 and 50 of the Constitution. The record discloses that the appeal before the Tribunal was heard on the merits by way of viva voce evidence; that the Appellant called two witnesses, including an expert; that cross-examination was had both ways; and that the Appellant was afforded, but did not take up, the opportunity to file written submissions. Indeed, the Appellant’s own submissions before this Court concede that the Tribunal delivered its judgment after hearing the parties. No denial of fair hearing or of access to justice is disclosed. Ground 9 fails. 54.Ground 11 contends that Regulation 17 of the EIA Regulations is ultra vires EMCA. The contention is unsustainable, though largely academic given the conclusion that Regulation 17 does not govern a medium-risk project in any event. Regulation 17 was made under the rule-making power conferred by EMCA and gives concrete effect to Article 10(2)(a) of the Constitution, which entrenches public participation as a national value binding all State organs, and to Article 69(1)(d), which obliges the State to encourage public participation in the management, protection and conservation of the environment. A regulation that implements, rather than derogates from, the purposes of its enabling statute is not ultra vires merely because compliance with it is onerous for a particular proponent. Ground 11 fails. 55.Ground 8 alleges bias. The threshold for establishing bias, whether actual or apprehended, is a high one, and the allegation must be proved by cogent evidence: see Republic v Independent Electoral & Boundaries Commission & another Ex parte CORD (supra) and Edward Mwangi Macharia v Maina & Maina Advocates (supra). Applying the test in Metropolitan Properties Co. (F.G.C.) Ltd v Lannon and Others [1968] 3 All ER 304, relied upon by the Appellant, the question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias not whether the Tribunal’s conclusions were, in the event, wrong in law. This Court has explained why the Tribunal erred on the classification question; but an erroneous legal conclusion is the ordinary stuff of appeal, correctable as such, and does not without more support an inference of partiality. As this Court observed in Athi Paper Mills Limited v Dakawou Transport Limited (supra), citing Republic v Mwalulu & 8 Others, a losing litigant’s dissatisfaction with an adverse verdict is not to be equated with bias in the mind of the adjudicator. No extraneous interest, improper conduct or predetermination has been identified. Ground 8 fails. Summary of the Merits 56.In summary, therefore, the appeal succeeds on Grounds 1, 4, 5, 6 and 7. The impugned project is, by the express designation of paragraph 2(9)(a) of the Second Schedule to EMCA, a medium-risk project; the Tribunal’s contrary classification, and the Regulation 17 participation standard erected upon it, were errors of law going to the root of its decision; and the participation conducted, measured against the standard that in fact applied, met the effectiveness threshold. Grounds 2, 3, 8, 9, 10 and 11 fail. Nothing in the Tribunal’s judgment, or in this judgment, invalidates or otherwise affects the Change of User approval issued by the 6th Respondent; and nothing in this judgment forecloses the exercise by NEMA of its continuing supervisory powers in respect of the licence and the project. Final orders 57.The upshot is as follows. Upon a fresh re-evaluation of the record, the Tribunal erred in law in classifying the impugned project as high-risk when the Second Schedule to EMCA expressly designates a service station a medium-risk project, and in consequence measured the public participation conducted against Regulation 17 of the EIA Regulations, a standard that did not govern the project. The participation undertaken satisfied the requirements applicable to a medium-risk project, and the Tribunal’s orders revoking the licence and directing restoration cannot stand. On costs, although costs ordinarily follow the event, the proceedings before the Tribunal and the response to this appeal were mounted by residents’ associations ventilating genuine environmental and neighbourhood concerns; it is well settled that in environmental litigation of that character the Court leans against visiting costs upon public-spirited litigants, lest the vigilance the Constitution invites in Article 70 be chilled. The just order is that each party bears its own costs of the Appeal. 58.Accordingly, this Court makes the following final orders:i.The Appeal is hereby allowed, and the judgment and decree of the National Environment Tribunal delivered on 29th November 2024 in Tribunal Appeal No. NET 31 of 2022 are hereby set aside in their entirety.ii.Environmental Impact Assessment Licence No. NEMA/EIA/PSL/21099 issued to the Appellant on 23rd August 2022 is hereby reinstated and shall be of full force and effect, without prejudice to the exercise by the 5th Respondent of its supervisory powers under the Environmental Management and Co-ordination Act, 1999 and the Regulations made thereunder.iii.For the avoidance of doubt, nothing in the judgment of the Tribunal or in this judgment quashes, invalidates or otherwise affects the Change of User approval issued by the 6th Respondent in respect of Plot LR Nos. 5979/7 and 5979/9, which remains subject to the applicable planning laws.iv.Each party shall bear its own costs of this appeal and of the proceedings before the Tribunal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JULY 2026.E.K. WABWOTOJUDGEIn the presence of:N/A for the Appellant.Mr. Lusi for the 1st to 4th Respondents.N/A for the 5th Respondents.N/A for the 6th Respondents.Court Assistant; Joanne Omondi.