[2022] KENET 731 (KLR)

Mariga & 7 others v National Environment Management Authority & another (Tribunal Appeal 10 of 2022) [2022] KENET 731 (KLR) (Environment and Land) (6 October 2022) (Ruling)

Neutral citation: [2022] KENET 731 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Environment and Land

Tribunal Appeal 10 of 2022

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

October 6, 2022

Between

Daniel Mariga

1st Appellant

Samuel Mburu Wamaitha

2nd Appellant

Symon Ngige Mburu

3rd Appellant

Bernard Muia

4th Appellant

Anthony Kamau Waweru

5th Appellant

John Ndichu

6th Appellant

Symon Wakebu

7th Appellant

Paul Kamau Kanja

8th Appellant

and

National Environment Management Authority

1st Respondent

Zhejiang Chengjian Construction Africa Ltd

2nd Respondent

Ruling

1. Before this Tribunal is the 2nd respondent’s notice of preliminary objection dated March 18, 2022

2. The 2nd respondent contends that the present appeal, which was initiated by the appellant vide a notice of appeal dated February 23, 2022 challenges the issuance by the 1st respondent to the 2nd of the Environmental Impact Assessment License No. NEMA EIA/PSL/15740 dated December 7, 2021 with respect to development of a proposed maisonette house development on LR No Dagoretti/Mutuini/1626 along southern bypass, Deer Park Karen area, Nairobi County. Accordingly, the 2nd respondent contend that the present appeal is time-barred for having been filed outside of the sixty-day period for challenging the grant of an environmental impact assessment license that is provided under section 129(1) of the Environmental Management and Co-ordination Act, 1999 (as amended in 2015).

3. The appellant in their submissions have attempted to move the appeal away from section 129(1) ofEMCA and situate it within section 129(2) of theAct, as read together with sections 58, 64, 125 and 126 of the Act. The reliefs sought in the notice of appeal dated February 23, 2022 call for the cancellation of the license. There are also prayers that the Tribunal make declarations of violation of the appellant’s rights to property, clean & healthy environment & fair administrative action by the respondents.

4. The appellants at the time of filing their appeal also filed an application vide a notice of motion dated February 23, 2022 and supported by the affidavit of the 1st appellant sworn on February 25, 2022. In essence, the said application sought, inter alia, prayers for extension of time. The appellants while seeming to acknowledge that the claim was filed outside the permitted time frame averred that such delay was occasioned by the secrecy in which the EIA license was issued.

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

(1)Any person who is aggrieved by—a)the grant of a license or permit or a refusal to grant a license or permit, or the transfer of a license or permit, under this Act or regulations made thereunder.b)the imposition of any condition, limitation or restriction on his license under this act or regulations made thereunder;c)the revocation, suspension or variation of his license under this act or regulations made thereunder;d)the amount of money which he is required to pay as a fee under this act or regulations made thereunder;e)the imposition against him of an environmental restoration order or environmental improvement order by the Authority under this act or regulations made thereunder, may within sixty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.

6. It is clear that appeals under section 129(1) have to be filed within the stipulated time of 60 days and in absence of any provision allowing an extension of time within the statute itself, then the Tribunal would have no jurisdiction to entertain an appeal outside this time.

7. In the celebrated case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd[1989] KLR 1. Nyarangi, JA held as follows: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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

8. The Supreme Court in the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No 2 of 2011 held in part as follows:“A court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of parliament, where the wording of legislation is clear and there is no ambiguity.”

9. From a plain reading of the appeal we find that the process and decisions leading to the issuance of the EIA License and the conditions therein are the main bone of contention. The reliefs sought include the suspension and revocation of the license in question.

10. As such, these falls within the province of section 129(1) ofEMCA and not section 129(2) of the act as had been submitted by the appellants. We are convinced that the substance of the appellant’s grievance as articulated in the appellant’s written submissions dated April 7, 2022 as well as part 3 of the notice of appeal which is titled “decision/action being appealed against” is against the issuance of the Environmental Impact Assessment License No NEMA EIA/PSL/15740 and the conditions therein.

11. Guided and bound by the superior courts above us, and also guided by the plain reading of the statute as amended and applicable to the material times of the present appeal, it is clear to us that the present appeal ought to have been filed within sixty days after the issuance of the impugned license. That license, environmental impact assessment license No NEMA EIA/PSL/15740 was issued on December 7, 2022 while the instant Appeal was filed on February 23, 2022; seventy seven days after the grant of the license and thus seventeen days out of time.

12. This Tribunal does not have the statutory power to extend or enlarge time for such appeals as no statutory provision permitting extension of time for appeals under section 129(1) of EMCA has been provided for.

13. Accordingly, it is our considered finding that the preliminary objection filed is merited and the application for extension of time must fail.Orders

14. In the circumstances, the appeal dated February 23, 2022 is hereby struck out for want of jurisdiction.

15. The Tribunal makes no orders as to costs.

DATED AND DELIVERED AT NAIROBI, THIS 6TH DAY OF OCTOBER 2022Mohammed Balala ………………………………………………………… ChairpersonChristine Kipsang………….…….…………………………………………Vice ChairpersonBahati Mwamuye…………….……………………………………………MemberWaithaka Ngaruiya…………….………….………………………………. MemberKariuki Muigua…………………..…………………………………………………Member