[2017] KEELC 1688 (KLR)
The court held that the Plaintiff's grievance against the 2nd Defendant arose from the rejection of his Environmental Audit Report, a decision made by the Authority under the Environmental Management and Coordination Act. Section 129 of the Act expressly provides that any person aggrieved by such a decision must...
Source-derived case information.
- Citation
- [2017] KEELC 1688 (KLR)
- Parties
- Plaintiff: Antony Mbogo Nderitu t/a Buffalo Auto Lab; Defendant: Kenya Railways Staff Retirement Benefit Scheme; Defendant: National Environment Management Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 321 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- preliminary objection upheld; suit against 2nd Defendant dismissed for want of jurisdiction
- Judges
- MM Gitumbi
- Legal Topics
- Environmental Appeals Tribunal Jurisdiction, Environmental Restoration Orders, Rejection of Environmental Audit Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Antony Mbogo Nderitu t/a Buffalo Auto Lab
Plaintiff
Kenya Railways Staff Retirement Benefit Scheme
Defendant
National Environment Management Authority
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear a suit challenging the rejection of an Environmental Audit Report by the National Environment Management Authority.
- 2 Whether section 129 of the Environmental Management and Coordination Act requires such disputes to be appealed to the National Environmental Tribunal.
Ratio Decidendi
The court held that the Plaintiff's grievance against the 2nd Defendant arose from the rejection of his Environmental Audit Report, a decision made by the Authority under the Environmental Management and Coordination Act. Section 129 of the Act expressly provides that any person aggrieved by such a decision must appeal to the National Environmental Tribunal within the prescribed period. The court found that it lacked jurisdiction to entertain the suit against the 2nd Defendant because the Plaintiff had not exhausted the statutory appeal mechanism provided by the Act. Upholding the preliminary objection, the court dismissed the suit against the 2nd Defendant with costs, emphasizing that...
Court Disposition
preliminary objection upheld; suit against 2nd Defendant dismissed for want of jurisdiction
Orders
- The Notice of Preliminary Objection is upheld.
- The suit against the 2nd Defendant is dismissed with costs to the 2nd Defendant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
MILIMANI LAW COURTS
ELC. CASE NO. 321 OF 2016
ANTONY MBOGO NDERITU
T/A BUFFALO AUTO LAB…….....…….…...……PLAINTIFF/ APPLICANT
VERSUS
KENYA RAILWAYS STAFF
RETIREMENT BENEFIT SCHEME …..…1ST DEFENDANT/RESPONDENT
NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY .…………2ND DEFENDANT/RESPONDENT
RULING
Coming up before me for determination is the Notice of Preliminary Objection dated 20th April 2016 and filed on 21st April 2016 in which the 2nd Defendant has stated that this court lacks the jurisdiction to hear this suit against it as it offends the provisions of section 129 of the Environmental Management and Coordination Act (the “EMCA”) and the same should be struck out.
The case against the 2nd Defendant is set out in the Plaint dated and filed on 5th April 2016 and is to the effect that at all material times, the Plaintiff is the proprietor of a business known as Buffalo Auto Lab situated in Landmawe, Nairobi County and is a tenant of the 1st Defendant. The Plaintiff disclosed that he had contracted an environmental consultant to prepare an environmental assessment report on the business which was submitted to the 2nd Defendant on 16th March 2016. It was further stated that on 18th March 2016, the Plaintiff received a rejection of that report from the County Director of Environment, Nairobi County. It was the Plaintiff’s case that as a result of this rejection, the 1st Defendant issued the Plaintiff with an eviction notice. The Plaintiff contended that it has at all times complied with environmental safety to avoid pollution further to paying rent as agreed by the parties. As one of the prayers in the Plaint, the Plaintiff sought a permanent injunction against the 2nd Defendant from interfering with its business operations. It is noteworthy that the 1st Defendant acted pursuant to an Environmental Restoration Order dated 3rd March 2016 issued to it by the 2nd Defendant.
The 2nd Defendant contends that this court does not have the jurisdiction to determine the case against it because this suit offends the provisions of section 129 of the EMCA. It provides as follows:
“(1) Any person who is aggrieved by:-
(a) A refusal to grant a licence or to the transfer of his licence under this Act or regulations made thereunder;
(b) The imposition of any condition, limitation or restriction on his licence under this Act or regulations made thereunder;
(c) The revocation, suspension or variation of his licence under this Act or regulations made thereunder;
(d) The imposition against him of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations made thereunder;
May within sixty days after the occurrence of the event against which he 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 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.”
The Environmental Restoration Order dated 3rd March 2016 which is the genesis of this suit was issued to the 1st Defendant. The Plaintiff’s complaint against the 2nd Defendant is the Rejection of Environmental Audit Report dated 18th March 2016 through which the Plaintiff’s Environmental Audit Report submitted to the 2nd Defendant on 16th March 2016 was rejected on the ground that it does not meet the guidelines provided in the EIA/EA Regulations of 2003.
Having regard to section 129(2) of the EMCA set out above, it is clear that the Plaintiff’s case as against the 2nd Defendant squarely lies on the 2nd Defendant’s decision to reject the Plaintiff’s Environmental Audit Report. That being the case, the same legal provision directs that such a decision may be subject to an appeal to the Tribunal. That being the case, it is my finding that this court lacks jurisdiction to determine the issue between the Plaintiff and the 2nd Defendant. Accordingly, this Notice of Preliminary Objection is hereby upheld. The suit against the 2nd Defendant is hereby dismissed with costs to the 2nd Defendant.
It is so ordered.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF SEPTEMBER 2017.
MARY M. GITUMBI
JUDGE