https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3460

Kariuki & 2 others (As Officials of Njumbi Road Residents’ Association) v National Environment Management Authority & another (Environment and Land Appeal E001 of 2026) [2026] KEELC 3460 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEELC 3460 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E001 of 2026 EK Wabwoto, J June 9, 2026 Between Gatonye Kariuki 1st Appellant Mumbi Gichuhi 2nd Appellant Peter Ritho 3rd Appellant As Officials of Njumbi Road Residents’ Association and National Environment Management Authority 1st Respondent ZFRC Holdings Limited 2nd Respondent Judgment Introduction 1.This is a first appeal preferred by the appellants against the ruling of the National Environment Tribunal (“the Tribunal” or “NET”) in NET Appeal No. 7 of 2025, dated and delivered on 15th December 2025. By that ruling the Tribunal, on the application of the 2nd respondent, reviewed and set aside its earlier judgment of 31st October 2025 and, in consequence, dismissed the appellants’ appeal for having been lodged outside the statutory period of limitation. 2.The 1st respondent (“NEMA”) is the statutory authority established under the Environmental Management and Co-ordination Act, No. 8 of 1999 (“EMCA”). The 2nd respondent (“ZFRC”) is the developer and the holder of the impugned Environmental Impact Assessment licence No. NEMA/EIA/PSL/37710 issued on 7th February 2025 in respect of a medium-risk residential development of sixteen (16) five-bedroom residential units on Land Reference Nos. Nairobi/Block 12/89 and Nairobi/Block 12/90 along Njumbi Road, Lavington, Nairobi City County. The appellants are the elected officials of the Njumbi Road Residents’ Association, an association of some seventy-two members resident in the affected neighbourhood and neighbours to the suit development. Background and the Tribunal’s decisions 3.The litigation history disclosed by the Record of Appeal may be shortly stated. The appellants, aggrieved by the issuance of the EIA licence, lodged NET Appeal No. 7 of 2025 by a Notice of Appeal dated and filed on 28th April 2025, brought under section 129 of EMCA as read with rule 4 of the National Environment Tribunal Procedure Rules, 2003. By their accompanying Statement of even date they recounted a protracted history of engagement with the developer and the regulators over the proposed development including objections to the change of user, a site meeting on 23rd November 2024, the felling of trees on the suit properties on or about 2nd February 2025, and a further on-site meeting on 14th February 2025 attended by representatives of the 1st respondent, the County and the area Chief. They contended that they became aware of the licence only in mid-February 2025 when construction resumed on site, and that the appeal was therefore brought within sixty days of such awareness. 4.Following the filing of the appeal, the 2nd respondent raised a Notice of Preliminary Objection dated 15th May 2025, contending that the appeal was time-barred and that the Tribunal therefore lacked jurisdiction. By a ruling dated and delivered on 1st July 2025, the Tribunal dismissed that objection. It did so not by finding that the appeal had been brought in time, but on the narrower ground that, the objection being founded on the test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696, the question whether the appellants were out of time turned on contested facts when they became, or ought reasonably to have become, aware of the licence which could not be resolved on a pure point of law at the preliminary stage. The Tribunal accordingly held that the objection could not be sustained as framed and ordered that costs abide the outcome of the appeal. The limitation question was thus expressly left to be determined together with the merits. 5.The Tribunal thereafter heard the appeal on its merits and, by a judgment dated and delivered on 31st October 2025, allowed the appeal. Having found that the impugned licence had been issued through a process that fell short of the public-participation threshold under regulation 7(2)(m) of the Environmental (Impact Assessment and Audit) Regulations, 2003 and Articles 10 and 69 of the Constitution, the Tribunal made orders that: (a) the EIA licence No. NEMA/EIA/PSL/37710 issued on 7th February 2025 was revoked; (b) the 2nd respondent cease all construction on the suit properties pending a fresh environmental assessment in full compliance with EMCA and the Regulations; (c) the 1st respondent ensure that any future application in respect of the same project comply strictly with the requirements for public participation, stakeholder engagement and inter-agency consultation within sixty days; (d) the 2nd respondent restore the site to a safe and environmentally stable condition and file a compliance report within ninety days; and (e) each party bear its own costs. On the threshold question of limitation, the Tribunal held at paragraphs 22 and 23 of that judgment that limitation runs from the point of awareness rather than from the date of the decision; that the appellants had become aware of the licence in mid-February 2025; and that the appeal lodged on 28th April 2025 was “therefore filed within sixty days of such awareness.” It concluded that the appeal had been properly brought under section 129(2) of EMCA as read with rule 4(2) of the National Environment Tribunal Procedure Rules, 2003, and that it was filed within the prescribed period. 6.By a Notice of Motion dated 6th November 2025, supported by affidavits sworn by John Njenga, advocate, on 6th November 2025 and 1st December 2025, the 2nd respondent sought review of the said judgment. The substance of the application was that the Tribunal had committed an arithmetical error apparent on the face of the record: that on the Tribunal’s own finding that awareness arose in mid-February 2025, the sixty-day period expired on or about 15th April 2025, with the result that the appeal filed on 28th April 2025 was in fact out of time, and the finding to the contrary was the product of a miscalculation. The appellants opposed the application by a replying affidavit sworn by Gatonye Kariuki on 27th November 2025, and the application was canvassed by written submissions filed by the 2nd respondent on 2nd December 2025 and by the appellants on 4th December 2025. 7.By the ruling now impugned, dated and delivered on 15th December 2025, the Tribunal upheld that contention. Directing itself by National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, Nyamogo & Nyamogo v Kogo (2001) EA 170 and Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd & 2 Others [2020] eKLR, it found that its earlier finding rested upon an arithmetical error sixty days from mid-February 2025 (taken as 14th February 2025) having lapsed on 15th April 2025, before the appeal was filed and that this qualified as a mistake or error apparent on the face of the record. The Tribunal accordingly allowed the application and ordered:(a)that the orders contained in its judgment of 31st October 2025 be set aside;(b)in substitution, that the appellants’ appeal instituted by the Notice of Appeal dated 28th April 2025 was filed out of time so that the Tribunal had no jurisdiction to hear and determine it, that the appeal be dismissed for want of jurisdiction, and that each party bear its own costs of the appeal; and(c)that each party bear its own costs of the application. It is from that ruling that the present appeal is brought. The appeal 8.The appellants’ Memorandum of Appeal, dated 14th January 2026, raises seven grounds. In substance they complain that the Tribunal erred in law and fact in: failing to find that the 2nd respondent’s application for review was unprocedural, misconceived and unmerited (ground 1); holding that the appellants’ appeal before the Tribunal had been filed out of time (ground 2); holding that it lacked jurisdiction to hear and determine the appeal (ground 3); ignoring the appellants’ evidence that they were not aware that licence No. NEMA/EIA/PSL/37710 had been issued (ground 4); concluding that the appellants were aware of the licence by mid-February 2025 (ground 5); misdirecting itself on the burden of proof by shifting it to the appellants (ground 6); and dismissing the appeal (ground 7). Distilled, these grounds advance three principal complaints: first, that the Tribunal lacked jurisdiction and was barred by the principles of res judicata and functus officio from re-opening the question of its own jurisdiction, that question having, on the appellants’ case, already been determined upon the preliminary objection and again in the judgment; secondly, that the application before it was an application for review which did not satisfy the conditions for review and which, in substance, invited the Tribunal to sit on appeal over its own merits decision; and thirdly, that the Tribunal erred in fact and law in concluding that the appellants became aware of the licence in mid-February 2025 and in importing dates that had not been pleaded or proved. The appellants pray that the ruling of 15th December 2025 be set aside and vacated and the judgment of 31st October 2025 be reinstated in its entirety, with costs of the appeal borne by the respondents. 9.Both respondents oppose the appeal. The 1st respondent’s submissions are directed principally to the proper construction of section 129 of EMCA, contending that an appeal challenging the grant of an EIA licence falls within section 129(1), attracts the sixty-day limitation, and ought to have been struck out for want of jurisdiction, the appeal having been filed some eighty days after issuance of the licence. The 2nd respondent supports the Tribunal’s exercise of its review jurisdiction, contending that the error was a genuine arithmetical slip apparent on the record which the Tribunal had power to correct under section 129(3) of EMCA as read with Order 45 of the Civil Procedure Rules, and that the appellants in any event had notice of the licence well before 18th February 2025 by their own admission. The Appellants’ submissions 10.By their written submissions dated 14th May 2026, the appellants advance three interlocking propositions. First, on jurisdiction, they contend that the question of the Tribunal’s jurisdiction to entertain NET Appeal No. 7 of 2025 had already been determined once upon the 2nd respondent’s preliminary objection dismissed on 1st July 2025, and again in the judgment of 31st October 2025 with the result that the Tribunal was barred by the principle of res judicata from re-opening it through the application of 6th November 2025. They submit that the remedy open to the 2nd respondent was to appeal, not to seek review, and that to permit the issue to be revisited a third time is precisely the mischief against which the courts have cautioned. In support they rely on the Supreme Court’s decision in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR (Supreme Court Motion No. 42 of 2014, as consolidated with Motion No. 43 of 2014) and on the exposition of the doctrine in E.T. v Attorney-General & Another [2012] eKLR, urging that a litigant may not evade res judicata by giving the same issue a “cosmetic face-lift” on each return to court. 11.Secondly, on functus officio, the appellants submit that the Tribunal, having delivered its judgment on 31st October 2025, became functus officio and could not revisit the merits of that judgment under the guise of review. They rely on Telkom Kenya Ltd v John Ochanda [2014] eKLR and Arthur Mathitu Nderitu & Another v Settlement Fund Trustees & 2 Others for the principle that a decision-maker who has exercised its adjudicative power may not, save as provided by law, reopen or vary its own decision. Thirdly, on the conditions for review, they contend that the application did not satisfy the requirements of Order 45 of the Civil Procedure Rules: the Tribunal had appreciated the correct grounds for review but then deviated from them, in truth re-hearing the merits and importing the dates of 14th February 2025 and 15th April 2025, which had not been pleaded or proved by any party. Relying on National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR and Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd & 2 Others [2020] eKLR, they argue that what the Tribunal undertook was the very species of detailed examination, scrutiny and elucidation that an error apparent on the face of the record may not require, and that its ruling thereby set aside the constitutional protection of the right to a clean and healthy environment under Articles 42 and 69 on a mere technicality. They pray that the ruling of 15th December 2025 be set aside and the judgment of 31st October 2025 reinstated, with costs. The 1st Respondent’s submissions 12.By its written submissions dated 21st May 2026, the 1st respondent (NEMA) addresses the proper construction of section 129 of EMCA and the question of limitation. Invoking the locus classicus in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, it submits that jurisdiction is everything and must be determined at the earliest opportunity. It contends that an appeal challenging the grant of an EIA licence falls within section 129(1) of EMCA which confers a right of appeal on a person aggrieved by, among other things, the grant of a licence, exercisable within sixty days after the occurrence of the event – and not within section 129(2), which is directed to acts or omissions of the Authority outside the issue of a licence. For that distinction it relies on David Awori & 2 Others v Director General, NEMA & 2 Others (Tribunal Appeal No. 212 of 2017) and Joseph Masibo & Others v Atlas Tower Group & Others (Tribunal Appeal No. 23 of 2024). The licence having issued on 7th February 2025 and the appeal having been lodged on 28th April 2025, some eighty days later, the 1st respondent submits that the appeal was filed out of time and the Tribunal ought to have downed its tools for want of jurisdiction. On the merits of public participation, it submits that the project, being a medium-risk undertaking, required a comprehensive project report rather than a study report, so that regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 was inapplicable, relying on Communist Party of Kenya v Nairobi Metropolitan Services & 3 Others [2022] KEELC 967 (KLR) and Douglas Onyancha & 3 Others v Joseph Karanja Wamugi & 4 Others [2019] eKLR. It prays that the appeal be dismissed with costs. The 2nd Respondent’s submissions 13.By its written submissions dated 20th May 2026, the 2nd respondent (ZFRC) supports the Tribunal’s exercise of its review jurisdiction. It submits that the Tribunal was properly clothed with jurisdiction over appeals concerning the issuance of EIA licences, relying on Salat Aden Mohamed & Another v Noor Aden Abdullahim, NEMA & 2 Others (Garissa ELC Petition No. 7 of 2021) and Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR, but that the appeal was filed out of time and ought to have been struck out. It contends that the appellants, by their own admission in the supporting affidavit of Gatonye Kariuki (annexture “GK3”), had notice of the licence well before 18th February 2025, so that the sixty-day period under section 129 of EMCA as read with rule 4(2) of the National Environment Tribunal Procedure Rules, 2003 had expired before the appeal was lodged. On review, the 2nd respondent submits that the Tribunal’s power to correct its own decision is preserved by section 129(3) of EMCA and by Order 45 rules 1 and 2 of the Civil Procedure Rules, and that the miscalculation of the limitation period was a mistake or error apparent on the face of the record within National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR. It relies on Riunga v National Environment Management Authority & Another (Appeal 16 of 2022) [2023] KENET 491 (KLR), Runda Association v National Environment Management Authority & 3 Others [2019] KEELC 14 (KLR), Lakeview Residents Association & 4 Others v Director-General, NEMA & Another (Tribunal Appeal 163 of 2015) [2024] KENET 501 (KLR) and Wemali Benson & 3 Others v NEMA & Another [2020] eKLR for the proposition that a finding that the Tribunal cannot review its own decision would erode the very purpose of its existence. It prays that the appeal be dismissed with costs. Issues for determination 14.Having considered the Memorandum of Appeal, the Record of Appeal and the submissions of all parties, the following issues fall for determination:i.Whether the Tribunal was barred by the doctrines of res judicata and functus officio from entertaining the 2nd respondent’s application;ii.Whether the 2nd respondent’s application disclosed an error apparent on the face of the record such as to satisfy the conditions for review, or whether it was in substance a re-hearing of the merits;iii.Whether the appeal succeeds and the ruling of 15th December 2025 ought to be set aside;iv.Who should bear the costs of the appeal. Analysis and determination Whether res judicata and functus officio barred the application 15.The appellants’ first and most forceful submission is that the question of the Tribunal’s jurisdiction and in particular the limitation point had already been determined, first upon the preliminary objection dismissed on 1st July 2025 and again in the judgment of 31st October 2025, and that the Tribunal was thereafter functus officio and barred by res judicata from re-opening it. They rely on the well-known statements of principle in the Supreme Court’s ruling in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR, and on Telkom Kenya Ltd v John Ochanda [2014] eKLR on the doctrine of functus officio. 16.There is no quarrel with those authorities as statements of general principle. A tribunal, like a court, having pronounced its final decision, is in the ordinary course functus officio and may not re-open the merits or sit on appeal over itself; and a question once judicially determined between the same parties may not be re-litigated. But both doctrines are, on the very authorities the appellants invoke, subject to defined exceptions. The doctrine of functus officio does not bar a tribunal from correcting a clerical or arithmetical slip, or an error apparent on the face of its record, through the recognised mechanism of review. As the learned authors of Mulla, Code of Civil Procedure observe, the principle of finality “is subject only to the special scenarios of fraud, mistake or lack of jurisdiction.” The same accommodation appears in Telkom Kenya Ltd v John Ochanda case (Supra) which expressly preserves a decision-maker’s power to act “subject to any right of appeal” and, critically, recognises the corrective function that review performs. 17.The matter is, in any event, put beyond argument by statute. Section 129(3) of EMCA confers upon the Tribunal express power to “make such other order including an order to review its judgment” to prevent the ends of justice from being defeated. A power to review conferred by the parent statute cannot be defeated by an appeal to functus officio, for the legislature has in terms contemplated that the Tribunal may revisit its own decision in the defined circumstances. As the Tribunal itself has recognised in Wemali Benson & 3 Others v National Environment Management Authority (NEMA) & Another [2020] eKLR the very authority on which it relied in the impugned ruling a finding that the Tribunal cannot review its own decision, including to correct an error apparent on the face of the record, would be an erosion of the purpose of existence of the Tribunal. 18.Nor was the application barred by res judicata. The principle bars the re-litigation of an issue finally determined; it does not bar the correction, on review, of a self-evident error in the very determination sought to be impugned. The premise of the appellants’ argument is, in any event, not borne out by the Record of Appeal. The limitation question was never finally determined at the preliminary-objection stage: the ruling of 1st July 2025 dismissed the objection precisely because the issue turned on contested facts that were unsuitable for summary disposal as a pure point of law, and the Tribunal expressly reserved it to be determined with the merits. The only adjudication of that question on its merits was in the judgment of 31st October 2025, and it is that very determination not some separate, earlier one that the Tribunal corrected on review. There was accordingly no prior final determination of the limitation question to which res judicata could attach. The 2nd respondent did not, by its application, seek to re-argue the merits of the limitation question afresh or to introduce new causes of action. It pointed to a discrete and self-contained arithmetical miscalculation within the Tribunal’s own reasoning. To characterise the correction of such an error as prohibited re-litigation would be to convert the doctrine of finality into an instrument for the perpetuation of plain error which is the antithesis of its purpose. I therefore reject the submission that the Tribunal was barred, whether by res judicata or by functus officio, from entertaining the application. The first issue is answered in the negative. Whether the application disclosed an error apparent on the face of the record 19.The conditions for review are settled. Order 45 rule 1 of the Civil Procedure Rules, applied by the Tribunal, permits review on the discovery of new and important matter, on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, and the application must be made without unreasonable delay. The character of an error apparent on the face of the record was authoritatively described in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR: the error “must be self evident and should not require an elaborate argument to be established,” and it is not a sufficient ground that another tribunal might have taken a different view, nor that the tribunal proceeded on an erroneous conclusion of law. In Multichoice (K) Ltd v Wananchi Group (K) Ltd & 2 Others, the error contemplated is one evident per se from the record and not requiring detailed examination, scrutiny and elucidation of the facts or the legal position. The Tribunal directed itself by these very authorities, together with Nyamogo & Nyamogo v Kogo (2001) EA 170, which draws the same distinction between a mere erroneous decision and an error apparent on the face of the record. 20.Applying that test, the error here was of the clearest kind. The Tribunal had found, as a matter of fact, that the appellants became aware of the licence in mid-February 2025 a finding rooted in the appellants’ own Statement, which placed them in active, on-site engagement with the development and with the 1st respondent’s representatives by 14th February 2025. Limitation, on the Tribunal’s own approach, ran from that point. Sixty days from mid-February 2025 expired in the middle of April 2025 on the Tribunal’s computation, 15th April 2025. The appeal was filed on 28th April 2025. It follows, as a matter of simple arithmetic, that the appeal was filed thirteen days outside the sixty-day period the Tribunal had itself fixed by reference to its own finding of fact. The conclusion in the judgment that the appeal was “filed within sixty days of such awareness” was therefore irreconcilable with the Tribunal’s own premise. That is the paradigm of an error apparent on the face of the record: it required no fresh evidence, no re-opening of the facts and no elaborate argument; it was evident per se from a juxtaposition of paragraphs 22 and 23 of the judgment with the calendar. 21.I have weighed the appellants’ contention that, in undertaking the review, the Tribunal was in truth re-hearing the merits and importing dates 14th February and 15th April 2025 that no party had pleaded or proved. I do not accept that characterisation. The mid-February awareness date was not imposed on review; it was the Tribunal’s own finding in the judgment, founded on the appellants’ own averment that they became aware when construction resumed. The review did no more than carry that finding to its arithmetically correct conclusion. Fixing the precise expiry of a limitation period that runs from an already-found date is not the reception of new evidence; it is computation. And computation of a statutory period here under section 129 of EMCA as read with rule 4(2) of the Tribunal’s Procedure Rules and, for the counting of days, the Interpretation and General Provisions Act is a matter of law and arithmetic, not of contested fact. The distinction drawn in Multichoice between a self-evident slip and a matter requiring detailed scrutiny falls, in my judgment, on the side of the former. 22.There is a further consideration that fortifies this conclusion, though the case does not depend upon it. As the 2nd respondent points out, the appellants’ own pleaded case their Statement dated 28th April 2025 and the supporting material in the Record of Appeal places them in direct, on-site engagement with the 1st respondent’s representatives over the development by 14th February 2025, consistent with their awareness of the licence by that date. On either reckoning the Tribunal’s mid-February finding or the appellants’ own account the sixty-day period had expired before the appeal was filed on 28th April 2025. The error corrected on review was therefore not only apparent but material: it went to the root of the Tribunal’s jurisdiction to entertain the appeal at all. 23.For completeness, I note the 1st respondent’s submission that the appeal fell properly within section 129(1) of EMCA, which governs appeals against the grant of a licence and prescribes the sixty-day limitation, rather than section 129(2), which addresses acts or omissions of the Authority outside the issue of a licence. There is considerable force in that submission, the gravamen of the appellants’ complaint before the Tribunal having been the legality of the EIA licence itself. But it is unnecessary for the disposal of this appeal to resolve the precise boundary between subsections (1) and (2), because on either provision the appeal was governed by a sixty-day period, and on either reckoning that period had expired. I therefore say no more on that question than is necessary, and leave its fuller resolution to a case in which it is dispositive. 24.It follows that the second issue is answered in the affirmative: the 2nd respondent’s application disclosed a genuine error apparent on the face of the record, and the Tribunal correctly entertained and allowed the review. The application was not, in substance, a disguised appeal on the merits; it was the correction of a manifest miscalculation that the Tribunal had both the power and the duty to put right. Disposal of the appeal 25.Drawing the threads together, the appellants’ case rests on two pillars, and both fail. The doctrines of res judicata and functus officio did not bar the Tribunal from acting, review being an express statutory exception preserved by section 129(3) of EMCA and recognised in the very authorities relied upon. And the application satisfied the conditions for review, the error being a self-evident arithmetical slip going to limitation and hence to jurisdiction. The Tribunal having correctly identified and corrected that error, its ruling of 15th December 2025 discloses no error of law or principle warranting interference by this Court on a first appeal. 26.I am alive to the appellants’ wider plea, grounded in Articles 42 and 69 of the Constitution, that the effect of the review is to set aside the substantive protection of the right to a clean and healthy environment on a mere technicality. I do not underrate that concern. But limitation is not a mere technicality; it is a substantive bar that conditions the very jurisdiction of the Tribunal, and Article 159 cannot be invoked to confer a jurisdiction that the statute withholds. The orderly administration of justice requires that statutory time limits be observed, and a litigant who comes outside them, however meritorious the underlying grievance, cannot be heard to complain that finality has been visited upon the wrong party. Costs 27.While the ordinary rule is that costs follow the event, that rule is not immutable, and the Court may for good reason order otherwise. I am satisfied that this is a fit case in which to depart from the ordinary rule and to direct that each party bear its own costs of the appeal. Final orders 28.In the result, and for the reasons given, this court makes the following orders:i.The appeal be and is hereby dismissed.ii.Each party to bear own costs of the Appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE 2026.E.K. WABWOTOJUDGEIn the presence of:Mr. Katiku for the Appellants.Mr.Masese h/b for Mr. Njenga for the 2nd Respondent.Mr. Ganya for the 1st Respondent.