[2021] KENET 130 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI

TRIBUNAL APPEAL NO. 028 OF 2019

JUDITH KAMAU............................................................................................................APPELLANT

VERSUS

DIRECTOR GENERAL

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY.....................1ST RESPONDENT

GREENSPAN INVESTMENTS LIMITED..........................................................2ND RESPONDENT

NAIROBI CITY COUNTY....................................................................................3RD RESPONDENT

RULING ON PRELIMINARY OBJECTION

1. The Appellant herein filed a Notice of Appeal dated 12th November 2019, and filed on 13th November 2019, in which she sought to challenge the EIA Licence for construction of a petrol station in Greenspan Estate, Donholm on LR No. Nairobi /Block 82/8759 for an EIA license Reference NEMA/EIA/DSL/8471 issued to the 2nd respondent seeking a stop order on construction and cancellation of the aid license. The appellant in the Notice of Appeal also prayed for extension of time for filing of appeal under rule 7 of the National Environment Tribunal Procedure Rules.

2. The Tribunal at the first instance gave its directions on 27th November 2019 on filing of pleadings and reminded the parties on the effects of the provisions of section 129(4) of EMCA.

3. On 17th December 2019, the 2nd respondent filed an application seeking to have the 2nd respondents name expunged from the proceedings as it was said to have been improperly joined to the proceedings.

4. The 1st respondent filed its Reply to appeal on 29th January 2020 in which it alleged that the EIA Licence had been properly issued but that the appellant had failed to mention the correct party as licensee, namely one Omar Haji Hassan. The 1st respondent sought dismissal of the appeal.

5. On 25th February 2020, the appellant filed an application seeking to amend its pleadings and to include the said Omar Haji Hassan as a party.

6. The 2nd Respondent, on the same date, filed a Grounds of opposition on the basis that it was improperly joined and a Notice of Preliminary Objection (P.O) dated 25th February 2020 seeking for the dismissal of the whole Appeal on the grounds that:

a. The Notice of Appeal is time barred Tribunal pursaunt to section 129(1) Environment Management and Co-ordination Act (EMCA) which provides that an aggirved party must be filed within 60 days of issuance of the EIA license,

b. The issues raised in the grounds of appeal ought to be referred to the environment and land court.

7. The appellant also filed an application for contempt against Greenspan for disobedience of the courts direction for maintenance of the status quo

8. For determination of the appeal, the tribunal was first required to address the issue of the preliminary objection and whether there was a valid appeal capable of being heard if filed within time and if not whether it was capable of extension of the time.

9. The issues raised in the application for contempt and the preliminary objection were disposed of by way of written submissions and from the Tribunal’s record, all the Respondents filed their submissions.

Analysis

10. We have considered the submissions filed by the Respondents as well as all the pleadings that have been filed in this matter and found that there are two main issues for our determination:

i. Whether the Appeal is time barred;

ii. Whether the Appeal can be extended under Rule 7 of the National Environment Tribunal Rules; and

iii. Whether the application for contempt is merited

(i)Whether the Appeal is time barred

11. The jurisdiciton of this Tribunal to hear matters of Environmental Impact Assessment (EIA) licences issued by NEMA, flows from section 129 of EMCA which provides as follows:

“129. Appeals to the Tribunal

(1) 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 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 orregulations 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. (Emphasis supplied)

(2) 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.”

12. Rule 3 of the of the National Environment Tribunal Rules provides that,

“Any person who is aggrieved by any determination or decision of the Authority or any of its Committees or officers as specified in subsections (1) and (2) of section 129 of the Act may appeal to the Tribunal in accordance with these Rules.”

13. The Supreme Court of Kenya inSamuel Kamau Macharia vs. Kenya Commercial Bank & 2 Others, Civil Appl. No. 2 of 2011, 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.”

14. The jurisdiction of the Tribunal with respect to issuance of EIA licences is a matter that has been well settled by the courts and this Tribunal. An Appeal filed after the lapse of 60 days since the date an EIA license is issued is time barred and the Tribunal does not have jurisdiction over such a matter. In this case, the time for filing the Appeal started running on 7th September 2019. The appeal was filed on 13th November 2019, which period is outside the 60 days provided in EMCA for filing the Appeal. The last day for filing of the appeal ought to have been on or before the 7th November 2019. The appeal was filed 6 days late.

15. Having established that the Appeal was filed after the lapse of the 60 days, the same is out of time and the Tribunal does not have jurisdiction to hear it.

(ii)Whether the time for filing of Appeal can be extended under Rule 7 of the National Environment Tribunal Procedure Rules.

16. Rule 7 of the of the National Environment Tribunal Procedure Rules provides that:

“7. The Tribunal may for good reason shiown, on application, extend the time appointed by these Rules (not being a 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.”

17. Rule 7 permits extension of time for those appeals whose time limits have not been fixed by the Act. The class of appeals falling under Section 129(1) of EMCA have their time fixed by statute and cannot be extended by the Rules.

18. Only Appeals under section 129(2) of EMCA, which challenge decisions other than those concerned with licensing, are therefore capable of extension of time.

19. The present Appeal is an appeal seeking cancellation of an EIA licence. It is does not fall under the categories of appeal capable of having time extended by Rule 7 of the Rules. The time for filing of this Appeal cannot therefore enjoy the benefit of extenion of time under rule 7 of the Rules and must suffer the fate of being struck out. The applicaion for contempt will therefore not be addressed in light of the lack of juruidiction on the part of the tribunal to hear this appeal.

20. Considering the above the Tribunal finds that the Appeal was filed out of time and the Tribunal cannot hear the Appeal nor does it possess the powers to extend time for filing of the Appeal and makes the following orders:-

ORDER

i. The Notice of Prelimianry objection is upheld and the Tribunal strikes out the Notice of Appeal filed on 13th November 2019.

ii. The Respondents shall have costs of the appeal.

Parties attention is drawn to the provisions of Section 130 of EMCA and the right to appeal this decision.

DATED AND DELIVERED AT NAIROBI, THIS 29TH DAY OF NOVEMBER, 2021.

MOHAMMED S BALALA……………………CHAIRMAN

CHRISTINE KIPSANG…….……………........VICE CHAIR

BAHATI MWAMUYE…………….…..……..........MEMBER

WAITHAKA NGARUIYA…….....……..................MEMBER

KARIUKI MUIGUA………………………….........MEMBER