[2022] KENET 701 (KLR)

Association v National Environment Management Authority & 2 others; Services (Interested Party) (Tribunal Appeal 13 of 2021) [2022] KENET 701 (KLR) (23 September 2022) (Ruling)

Neutral citation: [2022] KENET 701 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 13 of 2021

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

September 23, 2022

Between

, And, Chris Ndegwa, Secretary All Jointly Suing As And On Behalf Of Kyuna Neighbours Association

Appellant

and

National Environment Management Authority

1st Respondent

Arvind Mani

2nd Respondent

Malika Sood

3rd Respondent

and

Director General, Nairobi Metropolitan Services

Interested Party

Ruling

1. Before this tribunal is the 1st respondent’s notice of preliminary objection dated September 9, 2021.

2. The 1st respondent contends that the present appeal, which was initiated by the appellant vide a notice of appeal dated July 12, 2021 challenges the issuance by the 1st respondent to the 2nd and 3rd respondent of the Environmental Impact Assessment License NEMA NRB/PR/5/1/41. 169 dated May 20, 2020 with respect to development of a proposed maisonette house development on LR No 7158/447 Kyuna Estate Area, Westlands Sub-County, Nairobi County. Accordingly, the 1st respondent contend that the present appeal is time-barred for having been filed outside of the sixty-day period for challenging the grant of an Environmental Impact Assessment License that is provided under section 129(1) of the Environmental Management and Co-ordination Act, 1999 (as amended in 2015).

3. The appellant has attempted to move his appeal away from section 129(1) of EMCA and situate it within section 129(2) of the Act, as read together with sections 58, 64, 125 and 126 of the Act. The reliefs sought in the notice of appeal dated July 12, 2021 call for the cancellation of the license and that the hon tribunal to issue an order declaring the respondents have violated the appellant’s rights to property, clean & healthy environment & fair administrative action . However, we are convinced that the substance of the appellant’s grievance as articulated in paragraphs 14-26 of the appellant’s written submissions dated October 27, 2021 as well as Part 3 of the notice of appeal which is titled “Decision/Action Being Appealed Against” and runs from paragraphs 3. 1 to 3. 3 is against the issuance of the Environmental Impact Assessment License No NEMA NRB/PR/5/1/41. 169 and the conditions therein.

4. Section 129 of EMCA provides as follows:“129. Appeals to the Tribunal

(1)Any person who is aggrieved by—a)the grant of a license or permit or a refusal to grant a license or permit, or the transfer of a license or permit, under this Act or regulations made thereunder.b)the imposition of any condition, limitation or restriction on his license under this Act or regulations made thereunder;c)the revocation, suspension or variation of his license under this Act or regulations made thereunder;d)the amount of money which he is required to pay as a fee under this Act or regulations made thereunder;e)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.

5. We also find that there is no way that this tribunal could determine the appeal herein without deeply interrogating the process that led to the issuance of the impugned EIA License, the decision to grant that License, and the conditions contained therein. These are all aspects that squarely fall within the province of section 129(1) of EMCA and not section 129(2) of the Act

6. Guided and bound by the superior courts above us, and also guided by the plain reading of the statute as amended and applicable to the material times of the present appeal, it is clear to us that the present appeal ought to have been filed within sixty days after the issuance of the impugned license. That license, Environmental Impact Assessment License NEMA NRB/PR/5/1/41. 169 was issued on May 20, 2020 while the instant appeal was filed on July 12, 2021; four hundred and eighteen days after the grant of the license and thus three hundred and fifty-eight days out of time.

7. We find support for our view from the dicta of the Supreme Court of Kenya in Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others, Civil Appl No 2 of 2011, where the apex Court 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.”

8. In view of the applicable dates and the fact that this appeal falls under section 129 (1) of EMCA, the tribunal finds that the instant appeal dated and filed on July 12, 2021 against a license issued on May 20, 2020 was filed four hundred and eighteen (418) days after the grant of the impugned license and thus was three hundred and fifty-eight (358) days out-of-time. This tribunal does not have the statutory power to extend or enlarge time for such appeals.

Orders 9. The appeal dated July 12, 2021 and filed on July 12, 2021 is struck out for non-compliance with section 129 (1) of EMCA and the consequent want of jurisdiction on the part of the tribunal.

10. The Tribunal makes no orders as to costs.

DATED AND DELIVERED AT NAIROBI, THIS 23RD DAY OF SEPTEMBER 2022Mohammed Balala ………………………………………………………… ChairpersonChristine Kipsang………….…….…………………………………………Vice ChairpersonBahati Mwamuye…………….……………………………………………MemberWaithaka Ngaruiya…………….………….………………………………. MemberKariuki Muigua…………………..…………………………………………………Member