Karebe Gold Mining Ltd v National Environment Management Authority (NEMA) & 10 others (Environment and Land Appeal E004 of 2026) [2026] KEELC 4678 (KLR) (23 July 2026) (Judgment)

Karebe Gold Mining Ltd v National Environment Management Authority (NEMA) & 10 others (Environment and Land Appeal E004 of 2026) [2026] KEELC 4678 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEELC 4678 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E004 of 2026 EK Wabwoto, J July 23, 2026 Between Karebe Gold Mining Limited Appellant and National Environment Management Authority (NEMA) 1st Respondent Veinrock Gold Limited 2nd Respondent Jacktone Kiprop 3rd Respondent Alfred Magut 4th Respondent Ezekiel Kipkogei Koech 5th Respondent Shadrack Kipkoech Melilei 6th Respondent Shillah Cheruto Rono 7th Respondent Elisha Kipsang Meli 8th Respondent Fredrick Kibet Ngetich 9th Respondent Richard Alambo 10th Respondent Cheseret Arap Korir 11th Respondent (Being an appeal from the whole of the Judgment and Final Orders of the National Environment Tribunal at Nairobi (Hon. Emmanuel Mumia Chairman, Hon. Dr. Ronald Allamano Ong'udi Vice-Chair, Hon. Duncan Mwangi Kuria Member, and Hon. David Njuguna Njoroge Member) delivered on 2nd March 2026 in Tribunal Appeal No. E020 of 2025 as consolidated with Tribunal Appeal No. E028 of 2025 Karebe Gold Mining Limited v National Environment Management Authority & Others) Judgment 1.This appeal is against the whole of the Judgment and Final Orders of the National Environment Tribunal (“the Tribunal”) delivered on 2nd March 2026 in Tribunal Appeal No. E020 of 2025, as consolidated with Tribunal Appeal No. E028 of 2025. 2.The Appellant before this Court, Karebe Gold Mining Limited, was the Appellant in the original Tribunal Appeal No. E020 of 2025. The 1st Respondent, the National Environment Management Authority (NEMA), was the Respondent before the Tribunal in both consolidated appeals. The 2nd to 10th Respondents were the Respondents in Tribunal Appeal No. E020 of 2025, while the 2nd Respondent (Veinrock Gold Limited) and the 11th Respondent (Cheseret Arap Korir) were the 2nd and 1st Appellants, respectively, in Tribunal Appeal No. E028 of 2025. 3.The appeal is opposed by the 2nd to 11th Respondents. The 1st Respondent supports the appeal, but only to a limited extent, as shall become apparent shortly. Background (i) The parties and the underlying dispute 4.The dispute concerns land parcel Nandi/Chemase/974 situate at Chemase area, Tinderet Sub-County, Nandi County (“the suit property”). The 11th Respondent, Cheseret Arap Korir, is the registered proprietor of the suit property and the holder of NEMA Environmental Impact Assessment (EIA) Licence No. NEMA/EIA/PSL/16114, issued in respect of a proposed artisanal gold mining plant, including construction works and a gold recycling plant. 5.The 2nd Respondent, Veinrock Gold Limited, is a company said to have been incorporated for the benefit of the 11th Respondent's children, who are its directors and include the 3rd to 10th Respondents. It is not in dispute that gold processing activities, said by NEMA to constitute gold leaching using cyanide a process classified as high risk under the Second Schedule to EMCA, as opposed to artisanal gold mining which is classified as medium risk, were being undertaken on the suit property. 6.Arising from complaints received in or about January 2025, NEMA issued the following enforcement instruments against the 2nd Respondent: (a) Improvement Notice Order No. 23868 dated 28th January 2025; (b) Environmental Restoration Order No. 4767 dated 21st March 2025; and (c) Closure Order Ref. No. NEMA/S/11/VOL.VI dated 1st April 2025, the last of which required, among other things, cessation of the gold leaching plant, completion of a full EIA study, transfer of the EIA licence held by the 11th Respondent to the actual operator, and application for an Effluent Discharge Licence. 7.The Appellant, through its associated entity Equitorial Land Holdings Limited (a former lessee of the suit property whose lease expired in 2019), contended that despite issuing the foregoing orders, NEMA failed and/or refused to effectively enforce them against the 2nd to 10th Respondents, who allegedly continued gold leaching operations in defiance of the orders. 8.Separately, the 11th Respondent and the 2nd Respondent contended that the enforcement orders were never addressed or served upon the 11th Respondent, notwithstanding that he was the registered proprietor of the suit property and the substantive EIA licence holder, and that this rendered the orders procedurally unfair. They further contended that a notification of transfer of EIA Licence No. NEMA/EIA/PSL/16114 from the 11th Respondent to the 2nd Respondent had been lodged with NEMA by letter dated 31st March 2025, with further correspondence exchanged in April 2025 but that NEMA neither completed the transfer nor issued the 2nd Respondent a fresh licence, notwithstanding continued engagement and submission of compliance documents, including a comprehensive EIA project report acknowledged by NEMA on 15th September 2025. 9.It is also on record that criminal proceedings were instituted against the 2nd Respondent's directors and workers found on site, being Kapsabet Criminal Case No. MCCGCR E233 of 2025 and Kapsabet Criminal Case No. MCCGCR E406 of 2025, for alleged non-compliance with the improvement, restoration and closure orders and with interim orders of the Tribunal. (ii) Proceedings before the Tribunal 10.The Appellant instituted Tribunal Appeal No. E020 of 2025 by way of a Notice of Appeal dated 10th September 2025, expressed to be brought under Section 129(2) of EMCA, seeking, inter alia, orders compelling NEMA to fully enforce the Closure Notice of 1st April 2025 and the Environmental Restoration Order of 21st March 2025 against the 2nd Respondent, restraining the 2nd to 10th Respondents from carrying out mining or processing activities pending compliance, and directing NEMA to carry out an environmental audit and sampling under Section 68 of EMCA to ascertain the level of contamination of the soil and water around the site. Interim orders were issued by the Tribunal on 16th September 2025, including an order suspending any ongoing EIA study, report, public participation or licensing application in respect of the site pending compliance with the closure and restoration orders. 11.The 2nd to 10th Respondents filed Grounds of Opposition dated 18th September 2025, raising, among other matters, the non-joinder of the 11th Respondent as registered proprietor and licence holder. NEMA filed a Replying Affidavit sworn by Shieni Koiyet on 16th December 2025, detailing enforcement steps taken, including the two criminal prosecutions referred to above. 12.The 11th Respondent and the 2nd Respondent thereafter instituted Tribunal Appeal No. E028 of 2025 by way of a Notice of Appeal dated 1st December 2025, challenging the Improvement Notice Order, the Environmental Restoration Order and the Closure Order as unlawful, unreasonable and procedurally unfair for want of service upon the 11th Respondent, and seeking an order directing NEMA to complete the licensing and transfer process without undue delay. NEMA filed its response dated 23rd December 2025, together with the witness statement of Godfrey Wafula and a list of documents of the same date. 13.The two appeals were consolidated and heard together on the basis of written submissions. The Appellant, jointly with the 2nd to 10th Respondents in their capacity as parties in Tribunal Appeal No. E028 of 2025, filed written submissions through M/S Rotich, Langat & Partners Advocates. NEMA filed written submissions dated 13th February 2026 through its counsel. (iii) The Judgment of the Tribunal 14.The Tribunal identified two issues for determination: (i) whether the Appellant in Tribunal Appeal No. E020 of 2025 was entitled to the orders sought; and (ii) whether the Appellants in Tribunal Appeal No. E028 of 2025 were entitled to the orders sought. 15.On the first issue, the Tribunal held that NEMA's Replying Affidavit had demonstrated, in detail, the enforcement steps taken against the 2nd Respondent, including the institution of criminal proceedings against its directors and employees. The Tribunal found that the contention that NEMA had failed to enforce its environmental compliance orders was without basis, and dismissed the Notice of Appeal dated 10th September 2025 in its entirety. 16.On the second issue, the Tribunal held that the challenge to the Improvement Notice Order, the Environmental Restoration Order and the Closure Order fell within the ambit of Section 129(1)(e) of EMCA, and was accordingly subject to the mandatory sixty (60) day limitation period prescribed thereunder. As the impugned orders were issued between 28th January 2025 and 1st April 2025, and the Notice of Appeal in Tribunal Appeal No. E028 of 2025 was not filed until 1st December 2025, the Tribunal held that it lacked jurisdiction to entertain that portion of the appeal and dismissed the same as time-barred. 17.As regards the transfer of EIA Licence No. NEMA/EIA/PSL/16114, the Tribunal held that, by dint of Section 65 of EMCA, a transfer of an EIA licence takes effect by operation of law upon joint notification to the Director-General, and does not require a further act of approval by NEMA. On the material before it, the Tribunal found that the Director-General had been notified of the transfer of the licence from the 11th Respondent to the 2nd Respondent, and accordingly held that the licence was deemed to have been transferred to the 2nd Respondent to that extent. The Tribunal made no finding on the 2nd Respondent's application for a fresh licence, holding that no evidence had been placed before it of any formal decision by NEMA refusing such an application. 18.The Tribunal thereupon made the following final orders: (a) the Notice of Appeal dated 10th September 2025 filed in Tribunal Appeal No. E020 of 2025 was dismissed; (b) the Notice of Appeal dated 1st December 2025 filed in Tribunal Appeal No. E028 of 2025 was held to be partially successful, to the extent that EIA Licence No. NEMA/EIA/PSL/16114 was deemed to have been transferred to the 2nd Respondent (Veinrock Gold Limited) upon notification to the Director-General of NEMA; and (c) each party was ordered to bear its own costs. The Appeal 19.Aggrieved by the Tribunal's Judgment, the Appellant lodged a Notice of Appeal dated 10th March 2026, and thereafter filed the Memorandum of Appeal dated 1st April 2026 which is now before this Court, challenging the entire Judgment and Orders of the Tribunal on the following grounds:a)The Honourable Tribunal erred in law in entertaining and determining the consolidated NET Appeal No. E028 of 2025, the same having been filed outside the mandatory statutory timelines prescribed under Section 129(1) of the Environmental Management and Co-ordination Act, 1999, thereby acting without jurisdiction.b)The Honourable Tribunal erred in law in making a final pronouncement on transfer of the EIA licence in the absence of a properly ascertainable date of notification to the Director-General, yet Section 65(4) of the Environment Management and Coordination Act makes the legal effect of transfer dependent on the date of notification.c)The Honourable Tribunal erred in law in construing Section 65 of the Environment Management and Coordination Act as meaning that notification alone conclusively and automatically validated the transfer of the EIA licence without full inquiry into statutory compliance and Regulation 26 of the Environmental (Impact Assessment and Audit) Regulations which prescribe the process of transferring an EIA Licence.d)The Honourable Tribunal erred in law in failing to interrogate the nature of the EIA Licence No. NEMA/EIA/PSL/16114 held by the 1st Appellant, Cheseret Arap Korir which sought to be transferred related to construction as per the design plans and providing a sound gold recycling plant whereas the complained-of activity was gold leaching activities using chemicals classified as high risk.e)The Honourable Tribunal erred in law in failing to determine the specific prayer seeking an environmental audit and sampling under Section 68 of the Environment Management and Coordination Act to ascertain the level of contamination in the soil and water around the impugned site, despite that prayer being expressly set out in the appeal.f)The Honourable Tribunal erred in law in failing to give effect to the precautionary principle as required by the Environmental Management and Coordination Act by reducing the dispute to a narrow question of whether the 1st Respondent had taken some steps, instead of determining whether the steps taken were effective and sufficient to enforce the compliance notices already issued and to avert ongoing environmental harm.g)The Honourable Tribunal erred in law in failing to interpret its mandate in a manner that advances Articles 42, 69 and 70 of the Constitution on the right to a clean and healthy environment and the obligation of State organs to eliminate activities likely to endanger the environment.h)The Honourable Tribunal erred in law in treating the institution of criminal proceedings as adequate environmental compliance, contrary to the constitutional and statutory imperative that environmental protection requires preventive, restorative and supervisory remedies, and not merely penal consequences after the fact.i)Consequently, the Tribunal's decision occasioned a miscarriage of justice. 20.The Appellant prays for orders that: (a) the appeal be allowed; (b) the entire judgment and decree/orders of the National Environment Tribunal dated 2nd March 2026 be set aside to the extent challenged; and (c) the costs of the appeal be awarded to the Appellant. Submissions (i) The Appellant’s Submissions 21.The Appellant filed written submissions dated 8th July 2026 through, urging this Court to allow the appeal in its entirety. Counsel framed eight issues for determination, which track the grounds set out in the Memorandum of Appeal. 22.On the first issue, counsel submitted that the Tribunal committed a fundamental error of law by entertaining and determining the consolidated Tribunal Appeal No. E028 of 2025 notwithstanding that it had been instituted outside the mandatory timelines prescribed under Section 129(1) of EMCA. Counsel pointed out that the Notice of Appeal in that matter was filed on 1st December 2025 challenging the Improvement Notice Order No. 23868 dated 28th January 2025, the Environmental Restoration Order No. 4767 dated 21st March 2025, the Closure Order Ref. No. NEMA/5/11/VOL.VI dated 1st April 2025 and the decision contained in the letter Ref. No. NEMA/CPR/NDI/5/2/0597 dated 14th April 2025 declining the transfer of the EIA Licence. Applying the sixty-day limitation period to each of those decisions, the last date for lodging an appeal fell, at the very latest, on 14th June 2025, such that the appeal was instituted well over one hundred and seventy days after the expiry of the statutory deadline. 23.Counsel submitted that this was in fact the very finding reached by the Tribunal itself, which correctly appreciated that the challenge had been instituted outside the statutory period and held that it lacked jurisdiction, but then failed to down its tools and instead proceeded to determine substantive issues arising from the same appeal, ultimately holding that EIA Licence No. NEMA/EIA/PSL/16114 had been transferred to the 2nd Respondent upon notification to the Director-General. Relying on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & Another [2012] eKLR and Re Continental Credit Finance Ltd [2003] 2 EA 399, counsel submitted that jurisdiction cannot be exercised in fragments; once jurisdiction is found to be absent, every subsequent step taken by the Tribunal is legally unsustainable and any orders issued are mere nullities. Reference was further made to Runda Association v National Environment Management Authority & 3 Others [2020] eKLR and Jesee Mbugua Mbuthi & 12 Others v Director General, National Environment Management Authority & Another [2020] eKLR for the proposition that the sixty-day timeline under Section 129(1) of EMCA is mandatory and incapable of extension, and that compliance therewith is not a procedural formality but a jurisdictional prerequisite. 24.On the second issue, counsel faulted the Tribunal for making a definitive finding that the licence had been transferred despite expressly acknowledging, at paragraph 24 of its Judgment, that “it is not clear when this occurred”. It was submitted that under Section 65(4) of EMCA the transfer of an EIA licence takes effect upon notification to the Authority, and the date of notification is therefore the operative fact upon which the statutory consequence depends; before any tribunal could determine whether a transfer had taken effect, it was bound to ascertain, as a matter of evidence, whether notification was in fact made, when it was made, and whether it complied with the statutory requirements. Invoking Sections 107 and 109 of the Evidence Act, counsel submitted that the burden of proving that the statutory requirements had been satisfied rested squarely upon the parties asserting the transfer, and that the Tribunal’s approach impermissibly shifted that burden and presumed compliance notwithstanding its own acknowledgment that the material fact had not been established. The finding on transfer was therefore speculative, unsupported by the evidence and inconsistent with the express requirements of Section 65(4) of EMCA. 25.On the third issue, counsel submitted that Section 65 of EMCA cannot be interpreted independently of Regulation 26 of the Environmental (Impact Assessment and Audit) Regulations, which prescribes the process governing the transfer of an EIA licence, including payment of the prescribed fee, joint notification of the Director-General in Form 11 set out in the First Schedule to the Regulations, and issuance by the Authority of a certificate of transfer in Form 12. Citing In the Matter of the Kenya National Human Rights Commission [2014] eKLR and Speaker of the Senate & Another v Attorney General & 4 Others [2013] eKLR on holistic and purposive interpretation, counsel submitted that notification to the Director-General is not an end in itself but forms part of a broader statutory process designed to safeguard environmental compliance and regulatory oversight, which the Tribunal unfortunately reduced to a single act of notification without interrogating whether the statutory process had in fact been complied with. 26.On the fourth issue, counsel submitted that an EIA licence is project-specific: it is issued following an assessment of a particular proposed project and authorises only that project together with the activities and environmental impacts assessed during the EIA process, and cannot be construed as a blanket approval for every activity subsequently undertaken on the project site. The evidence before the Tribunal demonstrated that EIA Licence No. NEMA/EIA/PSL/16114 related to the establishment of a gold recycling plant, whereas the Appellant’s complaint concerned the operation of a cyanide gold leaching facility involving the use of hazardous chemicals and multiple cyanide leaching tanks materially different activities with distinct environmental risks and regulatory considerations. The Tribunal nevertheless undertook no analysis of the project description contained in the licence, the conditions attached thereto, or whether the impugned cyanide leaching activities fell within the scope of the approved project. 27.On the fifth issue, counsel submitted that the Tribunal fell into a further error of law by failing to determine one of the substantive prayers expressly sought in the Notice of Appeal, namely an order directing the 1st Respondent to undertake an environmental audit and sampling under Section 68 of EMCA to ascertain the level of contamination in the soil and water surrounding the impugned site. That prayer, it was submitted, was not ancillary or incidental but one of the principal reliefs sought, and the Judgment is completely silent on it. Relying on Odd Jobs v Mubia [1970] EA 476 and Peters v Sunday Post Ltd [1958] EA 424, counsel submitted that a court or tribunal is under a duty to consider and determine every material issue and substantive prayer placed before it, and that the omission amounted to an error of law which occasioned a miscarriage of justice. 28.On the sixth issue, counsel submitted that the Tribunal fundamentally misdirected itself by reducing the dispute before it to a single question, namely whether the 1st Respondent had undertaken some enforcement action, instead of determining the real issue, which was whether the measures undertaken were effective, adequate and sufficient to prevent or mitigate the continued environmental harm complained of. The Appellant’s complaint was not that the 1st Respondent had done nothing; rather, it was that despite the issuance of compliance notices and other enforcement measures, the impugned cyanide gold leaching activities continued, thereby exposing the environment and surrounding communities to the risk of ongoing contamination. By failing to evaluate whether the compliance notices had been obeyed, whether the illegal operations had ceased and whether the environmental risks had been eliminated, the Tribunal failed to give effect to the precautionary principle and the preventive objectives underpinning EMCA. 29.On the seventh issue, counsel submitted that the Tribunal further erred in failing to interpret and exercise its statutory mandate in a manner that gives effect to the constitutional right to a clean and healthy environment guaranteed under Article 42 of the Constitution, the positive obligation upon the State and all State organs under Article 69 to eliminate processes and activities likely to endanger the environment, and the power of courts under Article 70 to grant appropriate relief where that right is denied, violated or threatened. The Tribunal instead adopted a narrow and technical approach that unduly restricted the scope of its constitutional and statutory mandate. 30.On the eighth issue, counsel submitted that the Tribunal erred in law in treating the institution of criminal proceedings as adequate environmental compliance. Criminal prosecution is only one of the enforcement mechanisms available under EMCA and does not, by itself, demonstrate that the environmental harm has ceased, that compliance has been achieved or that the environment has been restored; environmental protection requires preventive, restorative and supervisory remedies, and not merely penal consequences after the fact. 31.In conclusion, counsel urged this Court to allow the appeal in its entirety, set aside the Judgment and Orders of the National Environment Tribunal dated 2nd March 2026 and grant the reliefs sought in the Memorandum of Appeal together with the costs of the appeal. (ii) The 1st Respondent’s Submissions 32.The 1st Respondent, NEMA, filed written submissions dated 8th July 2026 which are expressed to be in support of the appeal, but only to a limited extent. Counsel framed three issues: whether, having found that Tribunal Appeal No. E028 of 2025 had been filed outside the statutory period prescribed under Section 129(1) of EMCA, the Tribunal retained jurisdiction to determine the issue of the transfer of EIA Licence No. NEMA/EIA/PSL/16114; whether the Tribunal erred in law in holding that the transfer of an EIA licence occurs automatically upon notification to the Director-General under Section 65 of EMCA; and whether the Judgment should be interfered with only to the limited extent relating to the Tribunal’s findings on the transfer of the licence. 33.Counsel made clear that the 1st Respondent supports the appeal only to the extent of the foregoing two errors of law. Save for those issues, the 1st Respondent maintains that the Tribunal correctly found that NEMA lawfully exercised its statutory enforcement mandate by issuing the Improvement Notice, the Environmental Restoration Order and the Closure Order and by undertaking subsequent enforcement proceedings against the persons found to be in continued violation of environmental law, and it does not seek to disturb those findings. 34.On the first issue, counsel submitted that jurisdiction is the foundation upon which every judicial or quasi-judicial proceeding rests; it is neither procedural nor discretionary, and where it is absent every subsequent step is undertaken without legal authority and is a nullity. Having expressly found that the appeal was statute-barred under Section 129(1) of EMCA and that it had neither jurisdiction nor discretion to enlarge the statutory period, the Tribunal was bound to down its tools immediately. Reliance was placed on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra), Macharia & Another v Kenya Commercial Bank Ltd & 2 Others (supra), Phoenix of E.A. Company Limited v Thiga t/a Newspaper Service, Civil Appeal 244 of 2010; [2019] KECA 767 (KLR), where the Court of Appeal held that proceedings conducted without jurisdiction are a nullity ab initio regardless of the stage at which the jurisdictional defect is discovered, and Republic v Chengo & 2 Others, Petition 5 of 2015; [2017] KESC 15 (KLR), where the Supreme Court emphasised that jurisdiction is conferred by law and cannot be exercised beyond the limits established by statute. 35.Counsel submitted that jurisdiction cannot be exercised selectively or incrementally; once a court or tribunal concludes that it lacks jurisdiction over a dispute, it becomes functus officio in respect of that dispute and cannot reserve unto itself jurisdiction over selected issues while declining jurisdiction over the remainder of the appeal. The issue of the transfer of the EIA licence did not arise independently of the appeal; it formed one of the principal reliefs sought in Tribunal Appeal No. E028 of 2025, and its determination therefore constituted an adjudication upon the merits of an appeal that the Tribunal had already found to be incompetent. Nor was the declaration that the licence had been transferred an incidental observation or obiter dictum; it formed part of the ratio decidendi and culminated in a substantive final order. The finding at paragraphs 23 and 24 of the Judgment, together with Final Order (b), was accordingly rendered without jurisdiction and ought to be set aside in its entirety. 36.On the second issue, and without prejudice to the foregoing, counsel submitted that even assuming the Tribunal possessed jurisdiction, it fell into a fundamental error in its interpretation of Section 65 of EMCA by isolating subsection (4) from the rest of the provision and ignoring the express limitation imposed by subsection (1), which permits the holder of an EIA licence to transfer it to another person “only in respect of the project in relation to which such licence was issued”. Section 65 therefore creates a qualified, and not an unrestricted, right of transfer, conditional upon the continued existence of the same licensed project. Notification is procedural rather than constitutive; it presupposes the existence of a transfer that is substantively permissible under subsection (1) and cannot validate or perfect a transfer that falls outside the statutory limits imposed by Parliament. Reliance was placed on Munya v Kithinji & 2 Others, Petition 2B of 2014; [2014] KESC 38 (KLR) and County Government of Nyeri & Another v Ndungu, Civil Appeal 2 of 2015; [2015] KECA 1011 (KLR) on the principle that statutory provisions must be interpreted holistically, harmoniously and purposively so that no word enacted by Parliament is rendered superfluous. 37.Counsel further submitted that EIA licences are project-specific regulatory approvals and not proprietary rights capable of unrestricted assignment, citing Save Lamu & 5 Others v National Environmental Management Authority (NEMA) & Another [2019] KENET 98 (KLR), Mwongera & 2 Others (Suing as Chairman, Treasurer & Secretary of Karen Langata District Association) v National Environment Management Authority (NEMA) & Another; Taaleri Private Equity Funds (Interested Party) [2024] KEELC 1655 (KLR) and Moffat Kamau & 9 Others v Aelous Kenya Limited & 9 Others [2016] KEELC 565 (KLR), in the last of which the Court observed that NEMA cannot be said to have exercised its discretion judiciously where it issues a variation without requiring a fresh EIA in circumstances where the project has substantially changed. 38.On the facts, counsel submitted that the licence had been issued in respect of a proposed artisanal gold mining plant, whereas the activities subsequently undertaken on the site consisted of gold leaching operations involving the use of hazardous chemicals a materially different project with different operational characteristics, environmental impacts, regulatory requirements and risk classification. It was precisely because the project being undertaken differed from the project licensed that NEMA issued the Environmental Restoration Order requiring the operators to cease the gold leaching activities and undertake a comprehensive EIA for the proposed gold leaching project. The Tribunal undertook no analysis of whether the project described in the licence was the same project being undertaken by the purported transferee, thereby collapsing the distinction between the transfer of a licence and the variation of a licensed project; its interpretation would convert an EIA licence into a freely transferable commercial instrument divorced from the project for which it was issued, defeat the precautionary principle and circumvent the statutory requirement that environmentally significant projects undergo prior assessment. 39.On the third issue, counsel submitted that the impugned errors are discrete and severable from the remainder of the Judgment, and that the corrective appellate remedy is not to disturb the Judgment in its entirety but to excise only those portions rendered in excess of jurisdiction and upon an erroneous interpretation of Section 65. The Court was accordingly urged to set aside the finding at paragraphs 23 and 24 of the Judgment together with Final Order (b); to declare that Section 65 of EMCA does not provide for the automatic transfer of an EIA licence upon notification to the Director-General, notification under Section 65 taking legal effect only where the proposed transfer satisfies the substantive requirements of Section 65(1); to declare that EIA Licence No. NEMA/EIA/PSL/16114 was incapable of lawful transfer in the circumstances of this case; and, save for those variations, to affirm the remainder of the Judgment, including the findings on NEMA’s discharge of its enforcement mandate and on the time-bar, with costs to the 1st Respondent. (iii) The 2nd to 11th Respondents' Submissions 40.The 2nd to 11th Respondents filed joint written submissions dated 9th July 2026, in opposition to the appeal. Counsel noted at the outset that, as at the time of filing, they were not in receipt of the Appellant's submissions. Counsel condensed the appeal into six issues, namely: whether the Tribunal had jurisdiction to entertain Tribunal Appeal No. E028 of 2025; whether the Tribunal correctly interpreted Section 65 of EMCA concerning the transfer of EIA licences; whether the Tribunal was obligated to determine the issues relating to environmental audit and contamination sampling under Section 68 of EMCA; whether the Tribunal failed to apply the precautionary principle and constitutional environmental principles; whether the institution of criminal proceedings was rightfully treated as sufficient environmental compliance; and who should bear the costs of the appeal. 41.On jurisdiction, counsel drew a distinction between the two limbs of the relief sought in Tribunal Appeal No. E028 of 2025. As regards the first limb, which sought the quashing of the Improvement Notice Order No. 23868 dated 28th January 2025, the Environmental Restoration Order No. 4767 dated 21st March 2025 and the Closure Order Ref. No. NEMA/5/11/VOL.VI dated 1st April 2025, counsel candidly acknowledged that such a challenge fell within Section 129(1)(e) of EMCA and was subject to the mandatory sixty-day timeline, which the Tribunal has no jurisdiction or discretion to extend under Rule 7 of the National Environment Tribunal Procedure Rules. Reliance was placed on Olago & another (Suing on their Behalf and on Behalf of 26 other Persons) v Director-General, National Environment Management Authority & another [2023] KENET 1249 (KLR), where the Tribunal described the timeline under Section 129(1) as ironclad. Counsel accordingly submitted that the Tribunal correctly found that it lacked jurisdiction over that portion of the appeal. 42.It was however submitted that the second limb of the relief sought, being an order directing NEMA to complete the licensing and transfer process without undue delay, arose not under Section 129(1) but under Section 129(2) of EMCA. Counsel highlighted what they termed the uncontroverted evidence before the Tribunal: that the Improvement Notice, the Environmental Restoration Order and the Closure Order were all addressed to the 2nd Respondent and none was addressed to or served upon the 11th Respondent, notwithstanding that he was the registered proprietor of the suit property and the holder of EIA Licence No. NEMA/EIA/PSL/16114; and that the 11th Respondent lodged a notification of transfer of the licence dated 31st March 2025, receipt of which NEMA admitted at paragraph 12(b) of its Reply to the Grounds of Appeal. Invoking Article 47 of the Constitution and the decision in Elijah Ngumi Mugo v Director General National Environment Management Authority NEMA [2021] eKLR, counsel submitted that the issuance of a restoration order is administrative action which must be exercised in a lawful, reasonable and procedurally fair manner, including addressing and serving the order upon the correct person, which NEMA failed to do. 43.Counsel further relied on Republic v National Environmental Management Authority [2011] eKLR for the proposition that a party aggrieved by a decision of NEMA ought to pursue the statutory appeal mechanism before the Tribunal rather than judicial review before the High Court, which explained why the 2nd and 11th Respondents appealed to the Tribunal. The gravamen of their appeal, it was submitted, was not the transfer of the EIA licence itself but the Director-General's failure and/or refusal to process and communicate the legal effect of the notification lodged pursuant to Section 65(3) of EMCA, which omission constituted administrative action within the meaning of Article 47 of the Constitution and was appealable under Section 129(2) of EMCA. The timelines under Section 129(1) were therefore said to be inapplicable, and this Court was urged to find that the Tribunal, though it did not expressly state so, correctly assumed jurisdiction under Section 129(2) of EMCA. 44.On the interpretation of Section 65 of EMCA, counsel submitted that the Tribunal rightly appreciated that the Director-General had been notified of the transfer of EIA Licence No. NEMA/EIA/PSL/16114 from the 11th Respondent to the 2nd Respondent. While conceding that the receiving stamp on the notification of transfer dated 31st March 2025 was not legible, counsel submitted that NEMA expressly admitted receipt of the notification at paragraph 12(b) of its Reply to the Grounds of Appeal and further acknowledged receipt by its letter dated 14th April 2025 appearing at page 339 of the record. Once NEMA admitted receipt and acted upon the notification, the illegibility of the stamp could not invalidate the statutory process, and NEMA was in any event estopped under Section 120 of the Evidence Act, Cap 80, from denying receipt. 45.As regards Regulation 26 of the Environmental (Impact Assessment and Audit) Regulations, counsel submitted that a proper reading of the Judgment demonstrates that the Tribunal did not purport to complete or perfect the transfer; it merely recognised the legal consequences flowing from the transfer process already initiated before NEMA. The 2nd and 11th Respondents had discharged their part by jointly notifying the Director-General in Form 11 as required by Regulation 26(3), and the obligation to issue a certificate of transfer in Form 12 lay upon NEMA under Regulation 26(4), a burden which could not shift to the 11th Respondent. Reliance was placed on Cleophas Barasa Simiyu & another v National Environment Management Authority & another; Samuel Maheri (Interested Party) [2021] eKLR, where the Tribunal clarified that a transfer of an EIA licence is fundamentally a notification process which does not reopen inquiry into the manner in which the original licence was issued, the time for challenging the original licence having expired. 46.On the complaint that the Tribunal failed to interrogate the nature of the licence vis-à-vis the gold leaching activities complained of, counsel submitted that NEMA never revoked, suspended or cancelled EIA Licence No. NEMA/EIA/PSL/16114, and instead continued receiving compliance documents, environmental reports and licensing applications relating to the project. If the licence was wholly inapplicable to the activities on site, NEMA possessed statutory powers under EMCA to act against the licence holder, which it never exercised. The Tribunal could not therefore be faulted for declining to make findings unsupported by any formal determination of the regulator itself. 47.On the prayer for an environmental audit and sampling, counsel submitted that EMCA establishes a clear separation between NEMA's regulatory and investigative functions under Section 68 and the Tribunal's appellate function under Section 129(2). Whereas Section 68 of EMCA empowers NEMA to investigate environmental compliance through audits, inspections and monitoring, Section 129(2) merely empowers the Tribunal to review decisions already made by NEMA. The Appellant was accordingly obliged first to invoke NEMA's powers under Section 68 and, only if aggrieved by NEMA's decision, action or omission, to thereafter invoke the Tribunal's appellate jurisdiction under Section 129(2). The Tribunal, being a creature of statute, could not be faulted for declining to exercise powers which Parliament deliberately reserved for NEMA. 48.On the precautionary principle and the constitutional environmental principles, counsel submitted that the precautionary principle under Section 3(5)(f) of EMCA guides the exercise of the jurisdiction conferred upon the High Court under Section 3(3) of EMCA, while Articles 42, 69 and 70 of the Constitution are enforced through courts with the status of the High Court established under Article 162(2)(b) of the Constitution, being this Court. The Tribunal is not such a court; its jurisdiction is limited to that conferred by Section 129 of EMCA. While the Tribunal must interpret and apply EMCA consistently with the Constitution, those principles guide the exercise of its jurisdiction but do not expand it. The Tribunal could not therefore be faulted for declining to expand its jurisdiction under the guise of advancing Articles 42, 69 and 70 of the Constitution. 49.On the treatment of the criminal proceedings, counsel submitted that at no point did the Tribunal hold that the institution of criminal proceedings constituted compliance with EMCA. The Tribunal merely observed, at paragraph 15 of its Judgment, that NEMA had explained in detail the steps taken to enforce the environmental compliance orders issued against the 2nd Respondent, including instituting criminal prosecutions against its directors and employees. Citing Republic v National Environment Management Authority (NEMA) & 2 others; Ex-Parte Misty Mountain Lodge Ltd & another [2020] eKLR and Section 144 of EMCA, counsel submitted that EMCA is tailored towards remedial and precautionary measures, with prosecution arising only upon failure to comply with administrative enforcement measures. The Appellant had therefore attributed to the Tribunal a finding that does not exist in the Judgment. 50.In conclusion, counsel submitted that the appeal is devoid of merit and ought to be dismissed, the Tribunal having correctly directed itself on both the law and the facts. On costs, counsel urged that this being an appeal touching on a public interest matter concerning the environment, each party should bear its own costs. Analysis and determination 51.I have considered the record of appeal, the Memorandum of Appeal, the Judgment of the Tribunal and the rival written submissions filed by the parties. This being an appeal from a specialised tribunal exercising an appellate/supervisory jurisdiction over decisions of NEMA, this Court is enjoined, in respect of matters of law, to satisfy itself independently that the Tribunal correctly applied the law, and, in respect of matters of fact and mixed fact and law, to re-evaluate the material that was before the Tribunal and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses see, by analogy, the guiding first-appellate principle in Selle v Associated Motor Boat Co Ltd [1968] EA 123. 52.Arising from the grounds of appeal, the following six issues commend themselves for determination:i)Whether the Tribunal had jurisdiction to entertain Tribunal Appeal No. E028 of 2025, or any part thereof, having regard to the timelines prescribed under Section 129(1) of EMCA.ii)Whether the Tribunal correctly applied Section 65 of EMCA, and Regulation 26 of the Environmental (Impact Assessment and Audit) Regulations, in holding that EIA Licence No. NEMA/EIA/PSL/16114 was deemed transferred to the 2nd Respondent upon notification to the Director-General, and whether the date and fact of such notification were properly ascertained on the material before the Tribunal.iii)Whether the Tribunal ought to have interrogated the scope and nature of EIA Licence No. NEMA/EIA/PSL/16114 vis-à-vis the gold leaching activity actually being undertaken on the suit property, before pronouncing itself on the transfer of the licence.iv)Whether the Tribunal erred in failing to make a determination on the Appellant's prayer for an environmental audit and sampling under Section 68 of EMCA.v)Whether the Tribunal's finding that NEMA had not failed to enforce its environmental compliance orders, on the basis of the enforcement steps including institution of criminal proceedings disclosed in the record, was correct, and whether such steps were adequate having regard to the precautionary principle and Articles 42, 69 and 70 of the Constitution.vi)What orders should issue, including as to costs. 53.Before turning to the specific issues, it bears noting the considerable common ground between the parties. All parties are agreed that the challenge in Tribunal Appeal No. E028 of 2025 to the Improvement Notice Order, the Environmental Restoration Order and the Closure Order was lodged outside the sixty-day period prescribed by Section 129(1) of EMCA and was properly held by the Tribunal to be time-barred; indeed, counsel for the 2nd to 11th Respondents candidly conceded as much. Equally, both the Appellant and the 1st Respondent the latter being the very regulator whose handling of the licence transfer was in issue are agreed that the Tribunal, having found that it lacked jurisdiction, erred in proceeding to pronounce upon the transfer of the licence. The principal battleground is therefore the 2nd to 11th Respondents’ contention that the transfer limb of Tribunal Appeal No. E028 of 2025 was competent under Section 129(2) of EMCA, together with the correctness of the Tribunal’s construction of Section 65 of EMCA. I now turn to the issues in the sequence identified above. Issue (i): Whether the Tribunal had jurisdiction to entertain Tribunal Appeal No. E028 of 2025, or any part thereof 54.Section 129 of EMCA delineates the avenues of appeal to the Tribunal along two distinct channels. Section 129(1) provides that any person who is aggrieved by, among other matters, “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 its Regulations” (paragraph (a)) or “the imposition against the person of an environmental restoration order or environmental improvement order” (paragraph (e)) may, “within sixty days after the occurrence of the event against which the person is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal”. Section 129(2), on the other hand, is the general provision under which decisions of the Director-General, the Authority and its committees and agents, where not otherwise expressly provided for, may be subjected to appeal before the Tribunal. 55.The sixty-day period under Section 129(1) is mandatory. The Tribunal has neither jurisdiction nor discretion to enlarge it. That has been the consistent position of this Court, as held in Runda Association v National Environment Management Authority & 3 Others (supra) and Jesee Mbugua Mbuthi & 12 Others v Director General, National Environment Management Authority & Another (supra), both cited by the Appellant, and it is the very position which counsel for the 2nd to 11th Respondents embraced when describing the timeline, on the authority of Olago & Another v Director-General, National Environment Management Authority & Another (supra), as “ironclad”. The three enforcement instruments in issue were issued between 28th January 2025 and 1st April 2025. The Notice of Appeal in Tribunal Appeal No. E028 of 2025 was not filed until 1st December 2025, several months after the expiry of the statutory period reckoned from the latest of those instruments. The Tribunal’s holding that the challenge to those instruments was time-barred and that it lacked jurisdiction to entertain it was therefore unimpeachable, and it is hereby affirmed. 56.The real contest is whether the second limb of that appeal the prayer for an order directing NEMA to complete the licensing and transfer process could nevertheless be salvaged under Section 129(2) of EMCA, as counsel for the 2nd to 11th Respondents ably urged. Attractive as the argument was presented, it does not, with respect, survive scrutiny, for the following four reasons. 57.First, Parliament has expressly located grievances concerning the transfer of licences within Section 129(1). Section 129(1)(a) speaks in terms of a person aggrieved by “the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit”. A complaint that the Authority has failed, neglected or refused to process, recognise or give effect to a notified transfer of an EIA licence is, in substance, a grievance concerning the transfer of a licence. Where the statute has made specific provision for a category of grievance under Section 129(1), a party cannot resort to the general rubric of Section 129(2) in order to escape the limitation attached to the specific provision. That was precisely the holding of this Court in Jesee Mbugua Mbuthi (supra), where the Court found no justification for an attempt to bring licensing decisions under the general provisions of Section 129(2) when the Act had specifically provided for such matters under Section 129(1)(a). The substance of a grievance, and not the label a party attaches to it, determines the applicable channel of appeal. 58.Secondly, even taking the 2nd and 11th Respondents’ grievance at its most favourable, it had crystallised long before the sixty days preceding 1st December 2025. On their own material, the notification of transfer was lodged on 31st March 2025, and NEMA responded by its letter Ref. No. NEMA/CPR/NDI/5/2/0597 dated 14th April 2025 the very letter which the 2nd to 11th Respondents rely upon as NEMA’s acknowledgment of receipt of the notification, and which the Appellant characterises as a declinature of the transfer. On either characterisation, by mid-April 2025 the 2nd and 11th Respondents knew that NEMA had neither completed nor recognised the transfer, and the Closure Order of 1st April 2025 had in terms required the transfer of the licence to the actual operator, placing the question squarely in controversy. Sixty days reckoned from 14th April 2025 lapsed on or about 14th June 2025. The appeal filed on 1st December 2025 was out of time on any view of the matter. 59.Thirdly, to characterise NEMA’s failure to complete the transfer as a continuing omission appealable at any time under Section 129(2) would subvert the statutory scheme. It would permit a party to circumvent an ironclad limitation simply by reframing a time-barred challenge to a decision as an appeal against the Authority’s failure to reverse or act upon that decision. A statutory limitation cannot be defeated by so facile a device of pleading. 60.Fourthly, and decisively, whatever alternative jurisdictional foundation might have been available, it was not one the Tribunal identified or adopted. The Tribunal made no finding that it was seized of the transfer question under Section 129(2); it simply proceeded, immediately after holding that the appeal had been brought out of time, to interpret Section 65 of EMCA, evaluate the evidence of notification and grant one of the substantive reliefs sought in the very appeal it had found incompetent. The principle engaged is elementary and of long standing. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra), Nyarangi JA famously stated:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 61.The Supreme Court underscored the same principle in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others (supra): a court’s jurisdiction flows from the Constitution or legislation or both, and a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law, nor expand it through judicial craft or innovation. And as the Court of Appeal held in Phoenix of E.A. Company Limited v Thiga t/a Newspaper Service (supra), cited by the 1st Respondent, where a court proceeds to hear a dispute without jurisdiction the result is a nullity ab initio, amenable to being set aside ex debito justitiae. Jurisdiction cannot be exercised in fragments or by instalments; it either exists in respect of the dispute before the court, or it does not. 62.I am alive to the fact that the Tribunal framed its jurisdictional finding as relating to “that portion” of the appeal which challenged the three enforcement instruments, and may thus have regarded the transfer limb as severable. That framing does not assist the 2nd to 11th Respondents. If the transfer limb is treated as part and parcel of the appeal that had been found incompetent, then the downing-of-tools principle applied with full force and everything decided thereafter was a nullity, as both the Appellant and the 1st Respondent submit. If, alternatively, the transfer limb is treated as a severable grievance, then for the reasons given above it was itself a grievance falling within Section 129(1)(a) of EMCA and was equally time-barred, having been lodged more than seven months after it crystallised. On either approach, the Tribunal had no jurisdiction to determine whether EIA Licence No. NEMA/EIA/PSL/16114 had been transferred. 63.The 2nd to 11th Respondents’ invocation of Article 47 of the Constitution and Elijah Ngumi Mugo v Director General, National Environment Management Authority (supra), on the requirements of fair administrative action, does not alter this conclusion. The complaints of want of service and procedural unfairness in respect of the enforcement orders were themselves part of the time-barred challenge; and Article 47, fundamental as it is, does not confer upon a statutory tribunal a jurisdiction which the statute creating it has withheld. Likewise, Republic v National Environmental Management Authority (supra), which commends the statutory appellate mechanism over judicial review, speaks to the appropriate forum; it says nothing to relieve a party of the obligation to invoke that forum within the time prescribed by statute. I would further add that in the case of Choitram & Others vs Mystery Mode Hair Saloon [1972] EA 525, Justice Madan (as he then was) held that statutory tribunals must strictly operate within the powers expressly granted by law and cannot assume jurisdiction through implication since lack of jurisdiction may arise where a tribunal has no authority to begin proceedings and exceeds it powers while making a decision. 64.Accordingly, I find and hold that the Tribunal correctly declined jurisdiction over the challenge to the Improvement Notice Order, the Environmental Restoration Order and the Closure Order, but erred in law in proceeding thereafter to determine the question of the transfer of EIA Licence No. NEMA/EIA/PSL/16114. The findings at paragraphs 23 and 24 of the Judgment and Final Order (b) were made without jurisdiction and are, in the language of Re Continental Credit Finance Ltd (supra), mere nullities which must be set aside. The first issue is answered accordingly, and grounds (a) of the appeal succeeds. Issue (ii): Whether the Tribunal correctly applied Section 65 of EMCA and Regulation 26 of the Environmental (Impact Assessment and Audit) Regulations 65.The conclusion on the first issue is dispositive of the transfer question, since a finding made without jurisdiction cannot stand irrespective of its intrinsic merits. However, since the point was fully argued on both sides, was the subject of grounds (b), (c) and (d) of the appeal, and concerns the proper construction of a statutory provision of general application, I consider it appropriate to pronounce upon it, albeit briefly. 66.Section 65(1) of EMCA provides that an EIA licence “may be transferred by the holder to another person only in respect of the project in relation to which such licence was issued”, while Section 65(4) provides that “where the holder of an environmental impact assessment licence transfers the licence in accordance with this section, the transfer shall take effect upon notification to the Authority”. Regulation 26 of the Environmental (Impact Assessment and Audit) Regulations completes the framework: the holder may, on payment of the prescribed fee, transfer the licence to another person only in respect of the project to which the licence was issued (See Regulation 26(1)); the transferee and transferor must jointly notify the Director-General of the transfer in Form 11 set out in the First Schedule (See Regulation 26(3)); the Authority shall issue a certificate of transfer in Form 12 (See Regulation 26(4)); and where no joint notification is given, the registered holder of the licence remains deemed, for the purposes of the Regulations and the Act, to be the owner or the person having charge, management or control of the project (See Regulation 26(5)). 67.The canons of construction urged by all parties are not in dispute. As the Supreme Court held in In the Matter of the Kenya National Human Rights Commission (supra) and Munya v Kithinji & 2 Others (supra), and the Court of Appeal in Speaker of the Senate & Another v Attorney General & 4 Others (supra) and County Government of Nyeri & Another v Ndungu (supra), statutory provisions must be read holistically, harmoniously and purposively, so as to give effect to the intention of Parliament and to avoid rendering any provision superfluous. Applying those principles, the words “in accordance with this section” in Section 65(4) are not surplusage. The transfer that “takes effect upon notification” is a transfer of the licence effected in accordance with the section as a whole that is, a transfer confined to the very project in relation to which the licence was issued, and undertaken through the process which the Regulations prescribe, including payment of the prescribed fee and joint notification in Form 11. Notification is the culmination of a lawful transfer; it is not a self-executing substitute for one. I respectfully agree with the 1st Respondent that notification under Section 65 is procedural rather than constitutive, and cannot validate or perfect a transfer that does not satisfy the substantive precondition in Section 65(1). 68.There were, in addition, two insurmountable evidential difficulties with the Tribunal’s finding. The first concerns the date of notification. Section 65(4) pegs the legal effect of the transfer upon notification; the date and fact of notification are therefore the operative statutory facts. Yet the Tribunal, at paragraph 24 of its Judgment, expressly acknowledged that “it is not clear when this occurred”, before proceeding in the same breath to hold that the licence had been transferred. Under Sections 107 and 109 of the Evidence Act, the burden of establishing those operative facts lay upon the parties asserting the transfer. A definitive declaration of a statutory consequence cannot rest upon an operative fact which the Tribunal itself found incapable of ascertainment. To that extent the Appellant’s criticism, echoed by the 1st Respondent, is well founded. 69.The second difficulty concerns the same-project threshold under Section 65(1). It was NEMA’s consistent position, borne out by the terms of the Closure Order itself, that the licence had been issued in respect of a proposed artisanal gold mining plant, including construction works and a gold recycling plant, whereas the activity being undertaken on the suit property was gold leaching using cyanide, a materially different undertaking attracting a high-risk classification under the Second Schedule to EMCA. Whether the project in respect of which the licence was issued remained the project being undertaken by the intended transferee was therefore a live and central question. It was a threshold inquiry mandated by Section 65(1) which the Tribunal never undertook. As this Court observed in Moffat Kamau & 9 Others v Aelous Kenya Limited & 9 Others (supra), where a project has substantially changed, a fresh environmental impact assessment is required; an EIA licence is project-specific and is not a general operating approval attaching to a parcel of land or its proprietor: see also Save Lamu & 5 Others v NEMA & Another (supra) and Mwongera & 2 Others v NEMA & Another (supra). 70.The answers proffered by the 2nd to 11th Respondents do not meet these difficulties. NEMA’s admission of receipt of the notification, whether at paragraph 12(b) of its Reply to the Grounds of Appeal or in its letter of 14th April 2025, and any estoppel arising therefrom under Section 120 of the Evidence Act, is not proof of the date upon which a jointly executed Form 11 notification was lodged, nor of payment of the prescribed fee, nor most fundamentally that the project remained the same project in relation to which the licence was issued. Nor does Cleophas Barasa Simiyu & Another v National Environment Management Authority & Another (supra) assist: that decision holds that a transfer does not reopen an inquiry into the manner in which the original licence was issued; it does not hold that notification cures non-compliance with the transfer process itself, much less that it dispenses with the same-project requirement. 71.I accordingly find and hold that, even if the Tribunal had possessed jurisdiction, its conclusion that EIA Licence No. NEMA/EIA/PSL/16114 was deemed to have been transferred to the 2nd Respondent upon notification to the Director-General could not stand. It was arrived at upon a misconstruction of Section 65 of EMCA read with Regulation 26 of the Environmental (Impact Assessment and Audit) Regulations, upon an unproven operative fact, and without the threshold inquiry which Section 65(1) mandates. Grounds (b) and (c) of the appeal therefore also succeed. Issue (iii): Whether the Tribunal ought to have interrogated the scope and nature of the EIA Licence vis-à-vis the activity undertaken on the suit property. 72.Much of what falls under this issue has been resolved under issue (b): the scope and nature of the licence, as against the activity actually undertaken on the suit property, was precisely the inquiry which Section 65(1) obliged the Tribunal to undertake before pronouncing on any transfer, and its omission to do so is one of the reasons the transfer finding cannot stand. Ground (d) succeeds to that extent. 73.There is, however, an important limit to what this Court can and should do, and it is one that must be stated clearly because of the declarations sought by the 1st Respondent. NEMA invites this Court to declare that EIA Licence No. NEMA/EIA/PSL/16114 was incapable of lawful transfer in the circumstances of this case, the licensed project being materially different from the activities undertaken. Having held that the Tribunal had no jurisdiction to determine the transfer question at all, it would be incongruous for this Court, exercising appellate jurisdiction over that very determination, to proceed to make the opposite substantive determination on the merits. The question whether the licence is capable of transfer, and whether the activities on the suit property fall within its scope, are matters that remain, in the first instance, within the regulatory processes of NEMA under EMCA and the Regulations processes which, on the material before this Court, were still in train and, if need be, in properly constituted proceedings thereafter. It suffices to state the legal position as I have done under issue (b): notification under Section 65 takes legal effect only where the substantive requirements of Section 65(1), read with Regulation 26, are satisfied; and, by dint of Regulation 26(5), unless and until a joint notification of transfer is duly given in accordance with the Regulations, the registered holder of the licence remains deemed to be the owner or person having charge, management or control of the project. The declarations sought at prayers (d) and (e) of the 1st Respondent’s submissions are granted and declined respectively, to that extent. Issue (iv): Whether the Tribunal erred in failing to determine the prayer for an environmental audit and sampling under Section 68 of EMCA 74.It is not in dispute that the Notice of Appeal in Tribunal Appeal No. E020 of 2025 expressly sought an order directing NEMA to carry out an environmental audit and sampling under Section 68 of EMCA to ascertain the level of contamination of the soil and water around the site, and that the Judgment of the Tribunal contains no express pronouncement on that prayer. The Appellant is right that, as a matter of principle and of good practice, a court or tribunal ought to consider and determine every material issue and substantive prayer placed before it: Odd Jobs v Mubia (supra); Peters v Sunday Post Ltd (supra). The Tribunal would have been better advised to pronounce itself expressly on the prayer. 75.That said, I am not persuaded that the omission, in the circumstances of this case, amounted to a failure to determine a material issue occasioning a miscarriage of justice. The prayer for an audit was consequential upon, and predicated on, the primary complaint in Tribunal Appeal No. E020 of 2025 that NEMA had failed, neglected or refused to enforce its environmental compliance orders. Once the Tribunal found, on the material before it, that the contention of non-enforcement was without basis, the substratum of the consequential relief fell away, and the dismissal of the Notice of Appeal “in its entirety” necessarily carried the prayer with it. Furthermore, as counsel for the 2nd to 11th Respondents correctly submitted, the power to undertake environmental audits, inspections, monitoring and sampling under Section 68 of EMCA is vested in the Authority. The Tribunal’s jurisdiction on an appeal under Section 129(2) is appellate and supervisory over the Authority’s decisions, acts and omissions; and although its powers on disposal under Section 129(3) are undoubtedly wide, it was not obliged, having found no enforcement failure on the part of the regulator, to direct the regulator in the exercise of its investigative mandate. I would add, for the avoidance of doubt, that nothing in the Tribunal’s Judgment, or in this Judgment, forecloses the Appellant from moving NEMA to exercise its powers under Section 68 of EMCA in respect of the suit property, or from pursuing any remedy available to it at law should the Authority decline or fail to act. Ground (e) of the appeal accordingly fails. Issue (v): Whether the Tribunal’s findings on enforcement were correct, having regard to the precautionary principle and Articles 42, 69 and 70 of the Constitution. 76.This issue gathers grounds (f), (g) and (h) of the appeal, all of which attack the Tribunal’s dismissal of Tribunal Appeal No. E020 of 2025. Discharging this Court’s duty to re-evaluate the material that was before the Tribunal, the record discloses the following. Upon receipt of complaints in January 2025, NEMA inspected the site and issued, in escalating sequence, the Improvement Notice Order No. 23868 dated 28th January 2025, the Environmental Restoration Order No. 4767 dated 21st March 2025 and the Closure Order dated 1st April 2025. When non-compliance persisted, NEMA instituted criminal proceedings against the 2nd Respondent’s directors and workers found on site, being Kapsabet Criminal Case No. MCCGCR E233 of 2025 and Kapsabet Criminal Case No. MCCGCR E406 of 2025, for non-compliance with the enforcement orders and with the interim orders of the Tribunal. These steps were set out in detail in the Replying Affidavit of Shieni Koiyet sworn on 16th December 2025. On that material, the Tribunal’s finding that the contention that NEMA had failed to enforce its environmental compliance orders was without basis was one reasonably open to it, and I see no ground for interfering with it. 77.The complaint in ground (h), that the Tribunal treated the institution of criminal proceedings as adequate environmental compliance, proceeds upon a mischaracterisation of the Judgment. As counsel for the 2nd to 11th Respondents demonstrated, the Tribunal at paragraph 15 of its Judgment merely observed that NEMA had explained in detail the steps taken to enforce the compliance orders, including instituting criminal prosecutions. It nowhere held that prosecution constituted, or substituted for, environmental compliance. Indeed, the sequence disclosed by the record is consistent with the scheme of EMCA as described in Republic v National Environment Management Authority (NEMA) & 2 Others; Ex parte Misty Mountain Lodge Ltd & Another (supra): the statute is tailored first towards remedial, preventive and supervisory measures, with prosecution deployed upon failure to comply with the administrative enforcement measures which is precisely what occurred here. 78.As to the precautionary principle and the constitutional provisions invoked in grounds (f) and (g), the point may be shortly stated. The precautionary principle, and Articles 42, 69 and 70 of the Constitution, undoubtedly inform the interpretation and exercise of the Tribunal’s mandate, as they do that of every organ of State. But they do not enlarge a statutory jurisdiction, nor do they convert an appeal against a regulator’s alleged inaction into a freestanding inquiry into environmental conditions at the site. The question before the Tribunal in Tribunal Appeal No. E020 of 2025 was whether NEMA had failed to enforce its orders. The efficacy of enforcement is not measured solely by the conduct of the persons against whom it is directed: a regulator which has issued escalating statutory orders and, upon continued defiance, has invoked the criminal process, cannot without more be said to have failed to enforce merely because the persons in defiance persist in their contumacy. That persistence is answered by the enforcement machinery of EMCA including the pending prosecutions and the Authority’s continuing powers and, where appropriate, by proceedings against the defiant parties themselves, rather than by visiting their conduct upon the regulator. Nor does the record show that the Tribunal shut its eyes to environmental risk: it issued interim orders on 16th September 2025 suspending any ongoing EIA study, report, public participation or licensing application in respect of the site pending compliance with the closure and restoration orders. 79.I would add this. The outcome of this appeal is itself in service of the precautionary principle. By setting aside the Tribunal’s declaration of a deemed transfer, this Judgment removes the erroneous imprimatur which that declaration conferred, and restores the position established by the statutory scheme: by dint of Regulation 26(5), the registered holder of EIA Licence No. NEMA/EIA/PSL/16114 remains the person deemed to have charge, management and control of the project, and any regularisation of the activities on the suit property must proceed through the processes prescribed by EMCA and the Regulations, under the superintendence of NEMA. Grounds (f), (g) and (h) of the appeal accordingly fail, and the dismissal of Tribunal Appeal No. E020 of 2025 is affirmed. Issue (vi): What orders should issue, including as to costs 80.The dispute engages the broader public interest in environmental protection and regulatory compliance. In the circumstances, the fair order, which I hereby make, is that each party bears its own costs of this appeal. I see no reason to disturb the Tribunal’s order that each party bears its own costs of the proceedings before it. Disposition 81.In the result, and flowing from my findings hereinabove, the appeal partially succeeds and I proceed to make the following final orders:i)The appeal is allowed and the findings of the National Environment Tribunal at paragraphs 23 and 24 of its Judgment delivered on 2nd March 2026, together with Final Order (b) thereof, declaring that EIA Licence No. NEMA/EIA/PSL/16114 was deemed to have been transferred to the 2nd Respondent, Veinrock Gold Limited upon notification to the Director-General of NEMA, are hereby set aside.ii)In substitution therefor, it is hereby ordered that Tribunal Appeal No. E028 of 2025 be and is hereby dismissed in its entirety.iii)Each party shall bear its own costs of this appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JULY 2026.E.K. WABWOTOJUDGEIn the presence of;Mr. Masaku for the Appellant.Mr. Ngararu Maina h/b for Ms. Miyai for the 1st Respondent.N/A for the 2nd to 11th Respondents.Court assistant; Joanne Omondi.