[2022] KENET 707 (KLR)

Gichuki & 2 others ((Suing for and on behalf of South C Residents’ Association)) v Director General, National Environment Management Authority & another (Tribunal Appeal 42 of 2020) [2022] KENET 707 (KLR) (26 September 2022) (Ruling)

Neutral citation: [2022] KENET 707 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 42 of 2020

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

September 26, 2022

Between

Abdulmalik Gichuki

1st Appellant

Munna Singh Channa

2nd Appellant

Wamuyu Kariuki

3rd Appellant

(Suing for and on behalf of South C Residents’ Association)

and

Director General, National Environment Management Authority

1st Respondent

Mustafa Abdulahi Omar

2nd Respondent

Ruling

1. The appellant instituted this appeal vide a notice of appeal dated October 19, 2020 and filed before the tribunal on even date. The appeal is brought under rule 4 (1) of the National Environmental Tribunal Procedure Rules, 2003.

2. The appeal challenges issuance of EIA License No NRB/PR/5/1/14136 to the 2nd respondent herein. The appellant seeks revocation and/or cancellation of the license in their notice of appeal.

3. The 2nd respondent filed a notice of preliminary objection dated November 30, 2020 challenging the appeal on the following grounds:a.That the appeal has been filed out of time under section 129 of EMCA and rule 4(2) of the National Environmental Tribunal Procedure Rules of 2003;b.That this honorable tribunal has no jurisdiction to entertain matters of development issues and approval by other bodies;c.That the appellants’ appeal is bad in law, procedurally improper before this honorable tribunal; andd.That the appellants’ appeal is therefore incurably defective, bad in law and ought to be struck out with costs.

Parties’ Submissions 4. The 2nd respondent filed written submissions dated January 28, 2021 in support of its preliminary objection. The 2nd respondent submits that it is the registered owner of the suit property. It applied for an EIAlicense from the 1st respondent. The 1st respondent issued EIA License No NEMA/NRB/PR/5/1/14136 to the 2nd respondent. It further submits that it obtained all approvals from relevant government authorities before commencement of the project in line with guidelines issued by the 1st respondent.

5. On whether the appeal has been filed out of time under section 129 of EMCA, the 2nd respondent submits that the appellants seek to challenge issuance of a license to the 2nd respondent thus the appeal falls within the ambit of section 129(1) of EMCA which provides for a time limit of sixty days within which to lodge an appeal.

6. The 2nd respondent submits that since EIA License No NEMA/NRB/PR/5/1/14136 was issued on June 9, 2020, the 60 days required to file an appeal expired on August 8, 2020. Consequently, the 2nd respondent argues that the appellants’ appeal filed through a notice of appeal dated October 19, 2020 has been filed out of time.

7. The 2nd respondent puts reliance on the cases of Albert Mumma in his capacity as Chairman,Karen Langata District Association (KLDA) v Director General- National Environmental Management Authority (NEMA) & 2others(2019) eKLR and David Awori & 2others on behalf of Gigiri Village Association –vs- Director General (NEMA) & 2others (2018) eKLR in support of its case.

8. On this basis, the 2nd respondent contends that the appellants are bound by the sixty-day period as envisaged under section 129 (1) of EMCA hence they could not file a competent appeal after the expiry of that time.

9. The 2nd respondent thus contends that the appellants’ appeal is incurably defective, bad in law and ought to be struck out with costs.

10. The appellants filed written submissions dated February 23, 2021 opposing the 2nd respondent’s preliminary objection.

11. On whether the notice of preliminary objection is properly before the tribunal, the appellants contend that since the appeal is one brought under section 129 (2) of EMCA, the 2nd respondent ought to have moved the tribunal by way of a substantive motion supported with an affidavit together with relevant evidence. The appellants further contend that at the time of filing the appeal and the preliminary objection, it was not possible to identify the time lines in order to state precisely the exact date they received the disputed decision. Thus, the 2nd respondent ought to have moved the tribunal by way of a substantive motion. It cites the cases of Simba Corporation Limited –vs- Director General, National Environment Management Authority (NEMA) &another (2017) eKLR and David Awori & 2others on behalf of Gigiri Village Association –vs- Director General (NEMA) & 2others(2018) eKLR in support of their case.

12. On whether the notice of preliminary objection raises pure facts of law, the appellants submit that it does not raise pure facts of law hence the said preliminary objection is improper. The appellants cite the case of Mukisa Biscuit Manufacturing Co Ltd –vs- West End Distributors Ltd (1969) EA 696 in support of their case.

13. On whether the appeal falls within the ambit of section 129 (2) ofEMCA, the appellants submit that the appeal falls under that section since the substance of the appeal is the action by the Director General of the 1st respondent to authorize the construction of the multi-dwelling residential apartments. It cites the case of Professor Albert Mumma –vs Director General, NEMA & 2others, Tribunal Appeal No NET/005/2018 in support of its case.

14. On whether the notice of appeal is time barred, the appellants argue that the limitation period by dint of rule 4 of the NETProcedure Rules starts to run from the time when a section 129 (2) appellant is given or served with notice of the disputed decision by NEMA. They contend that NEMA has a duty to notify the public about all decisions contemplated under section 129 of EMCA as held in Simba Corporation Limited –vs- Director General, National Environment Management Authority (NEMA) &another.

15. The appellants further submit that the limitation period of 60 days should be deemed to have started running on the date on which the disputed decision is given or served upon the appellant. They further contend that to this date, they have never been notified of the decision authorizing the impugned construction.

16. The appellants contend that the notice of appeal having been filed under section 129(2) of EMCA, the act does not set a limitation period. They further argue that the time within which an appeal may be filed can be extended under rule 7 of the National Environmental Tribunal Rules, 2003.

17. On this basis the appellants submit that the notice of preliminary objection by the 2nd respondent is fatally defective and incompetent since the appeal falls within section 129 (2) of EMCA hence properly filed within time. They urge the tribunal to dismiss the 2nd respondent’s notice of preliminary objection with costs.

Issues for Determination 18. Having considered the 2nd respondent’s notice of preliminary objection dated November 30, 2020, the 2nd respondent’s written submissions dated January 28, 2021 in support of the notice of preliminary objection and the appellant’s written submissions dated February 23, 2021 opposing the 2nd respondent’s notice of preliminary objection, the tribunal has identified the following issues as arising from the preliminary objection:a.Whether the preliminary objection is properly taken;b.Whether the appeal is time barred; andc.What orders should the tribunal make?

A. Whether the preliminary objection is properly taken 19. The appellants in their written submissions contend that the notice of preliminary objection filed by the 2nd respondent does not raise pure points of law. Hence, the said preliminary objection is improper. They contend that the 2nd respondent did not follow the correct procedure in challenging the appeal and ought to have a filed a substantive motion as opposed to a bare notice of preliminary objection.

20. The issue of moving a court by way of a preliminary objection was discussed in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd(1969) EA 696, where the court decided 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"

21. At the time of lodging the appeal and the preliminary objection, it was possible to identify the timelines so as to state precisely when the licence was granted and thereby make a determination whether the appeal is incompetent or not. The tribunal only needs to check the date when the EIAlicence was issued by the 1st respondent and the date when the appellants’ appeal was lodged. With these two dates, the tribunal is able to determine whether the appeal was filed in time or not. Since the date when the EIAlicence was issued is not contested, the tribunal does not require affidavit evidence to determine such a matter. For this reason, the tribunal finds that the 2nd respondent’s preliminary objection is properly taken

B. Whether the appeal is time barred 22. The 2nd respondent in his preliminary objection contends that the appeal has been filed out of the time envisaged under section 129 ofEMCA and rule 4(2) of the National Environment Tribunal Procedure Rules, 2003.

23. The 2nd respondent contends that section 129 (1) EMCA provides for a time limit of sixty (60) days within which to file an appeal which time expired on August 8, 2020. Thus, the appellants appeal filed vide a notice of appeal dated October 19, 2020 has been filed out of time.

24. The appellants on their part in their written submissions dated February 23, 2021 contend that the appeal falls within the ambit of section 129 (2) ofEMCA hence it’s not time barred since the limitation period starts running on the date in which the disputed decision is given to or served upon the appellant.

25. The legal framework on appeals to the National Environment Tribunal is set out under section 129 of the Environmental Management and Co-ordination Act (EMCA), No 8 of 199. Section 129 (1) thereof stipulates that:Any person who is aggrieved by—(a)The grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, 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 the his licence 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.Section 129 (2) stipulates that:Unless otherwise expressly provided in this Act, where this Act empowers the director-general, the authority or committees of the authority or its agents 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.

26. The framework of appeals to the tribunal is further governed by the National Environmental Tribunal Procedure Rules, 2003. Rule 4 (1) thereof stipulates that:"An appeal to the tribunal shall be made by written notice and where the tribunal has approved a form of notice for the purpose, in the form so approved."Rule 4 (2) further states that:"The appellant shall send or deliver six copies of the notice of appeal to the tribunal so as to reach it not later than sixty days after the date on which the disputed decision was given or served upon him."

27. The issue of the difference between appeals brought under sections 129 (1) and 129 (2) of the Environmental Management and Co-ordination Act has been previously determined by this tribunal. In Prof Albert Mumma vs Director General NEMA & 2 others, Tribunal Appeal No 005 of 2018, this tribunal decided that:"With the 2015 amendment (to the EMCA), all appeals either challenging the grant or refusal of a license now fall under section 129 (1). Section 129 (2) is left to decisions made by the director general, the committees of the authority or its agents under the Act" (emphasis added)

28. Further, the tribunal in Tribunal Appeal No 212 of 2017, David Awori & 2 others vs Director General NEMA & 2 others, observed as follows in respect of the difference between appeals brought under sections 129 (1) and 129 (2) of the EMCA:"The substance of the appellants appeal is the decision by the National Environment Management Authority (NEMA) to grant NEMA License No 0034241 to the 2nd respondent. It falls within the ambit of section 129 (1) (a) of EMCAwhich allows any person who is aggrieved by 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 the Act or regulations made thereunder to appeal against such a decision within sixty days of the decision being made….any appeal that seeks to challenge or touch on matters surrounding, inter alia, the grant or refusal to grant a license falls within the ambit of section 129 (1). Section 129 (2) covers appeals against acts or omissions of the director general or the committee of the authority or its agents on matters outside the issue of license." (emphasis added)

29. The tribunal is guided by the above decisions and finds that the present appeal falls under section 129 (1) of EMCA since it challenges issuance of EIA License No NRB/PR/5/1/14136 and seeks to have it revoked and/or cancelled. The limitation period for appeals under section 129 (1) of EMCA is sixty (60) days as stipulated by the Act. The tribunal shall proceed and determine whether the appellants appeal has been filed within the stipulated timeframe.

30. EIA License No NEMA/NRB/PR/5/1/14136 was issued by the 1st respondent to the 2nd respondent on June 9, 2020. The appellants herein filed their notice of appeal on October 19, 2020 under rule 4 (1) of the National Environmental Tribunal Procedure Rules, 2003. Regarding computation of the 60 day period for filing an appeal under section 129 (1) of EMCA, the tribunal decided as follows in Tribunal Appeal No 006 of 2019, Runda Association –vs- National Environmental Management Authority (NEMA) & 3 others:"It is now trite law following a number of cases determined up to the high court that where an appeal is brought under section 129(1) a party aggrieved by the grant or rejection of an application for licence must do so within 60 days from the date of the occurrence of the event ie. The date of the issuance or the rejection of the licence. It is also now well established that the time line of 60 days in section 129(1) of EMCA cannot be extended."The tribunal further decided that:"It is therefore the tribunals finding that the appeal filed by the appellant is one falling under section 129(1) of EMCA. Having also found that the 60 days’ count of the time limit ran from April 6, 2018 to June 5, 2018, the appeal filed on March 15, 2019 was already clearly out of time. The time limit of 60 days runs from the date of issuance of the licence on April 6, 2018 and in the instant case was filed outside the statutory period."

31. In the present appeal, the time period of 60 days started running on June 9, 2020 when EIA License No NRB/PR/5/1/14136 was issued until August 9, 2020. Thus the tribunal finds that the appellants appeal filed on October 19, 2020 is filed out of the stipulated 60 days period under section 129 (1) of EMCA.

32. The appellants contend that the time within which an appeal may be filed can be extended under rule 7 of the National Environmental Tribunal Procedure, Rules 2003. The said rule stipulates as follows:"The tribunal may for good reason shown, on application, extend the time appointed by these Rules (not being the time limited by the Act) for doing any act or taking any proceedings, and may do so upon such terms and conditions, if any, as appear to it just and expedient." (emphasis added).

33. The provision is not applicable to appeals under section 129 (1) of the EMCA since the time within which to file such appeals is limited by the Act to sixty days from the date of the act or omission being appealed against. In ELC Case No 100 of 2015: Simba Corporation Limited vs Avic International & another, the court held that:“There is no doubt that section 129 (1) of EMCAprovides a limitation period of 60 days from the date of occurrence of the impugned event, within which the dissatisfied party is to present an appeal to NET. The framework in section 129 (1) does not provide for extension of the 60 days’ period. In the same vein, rule 7 of the NET Procedure Rules prohibits extension of time in a scenario where the limitation period is expressly limited by EMCA. The legal ramifications of the framework in rule 7 of NET Procedure Rules is that the extension contemplated under rule 7 does not relate to appeals falling under section 129 (1) because limitation period for appeals falling under section 129 (1) is limited by the Act. The extension contemplated in rule 7 ofNET Procedure Rules therefore relates only to appeals falling under section 129(2) because these are the only appeals in respect of which the Act does not set a limitation period.”

C. What orders should the tribunal make? 34. For the above reasons, the tribunal makes the following orders:a.The 2nd respondent’s preliminary objection is hereby allowed;b.The appeal is hereby dismissed; andc.Each party to bear their own costs.Parties’ attention is drawn to provisions of section 130 of the Environment Management and Co-ordination Act.

DATED AT NAIROBI THIS 26TH DAY OF SEPTEMBER 2022MOHAMMED S BALALA…………………………CHAIRPERSONCHRISTINE KIPSANG………………………………………MEMBERBAHATI MWAMUYE………………………………………………MEMBERWAITHAKA NGARUIYA………………………………………MEMBERKARIUKI MUIGUA………………………………………………MEMBER