Masibo & 3 others (Suing as the Officials and Representatives of Migaa ACK Roads Residents Association) v Atlas Tower Group & 2 others (Environment and Land Civil Appeal E015 of 2025) [2026] KEELC 4108 (KLR) (2 July 2026) (Judgment)

Masibo & 3 others (Suing as the Officials and Representatives of Migaa ACK Roads Residents Association) v Atlas Tower Group & 2 others (Environment and Land Civil Appeal E015 of 2025) [2026] KEELC 4108 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4108 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Civil Appeal E015 of 2025 MD Mwangi, J July 2, 2026 Between Josephine Masibo 1st Appellant Pascaline Shiundu 2nd Appellant Joseph Amwayi 3rd Appellant Christine Komen 4th Appellant Suing as the Officials and Representatives of Migaa ACK Roads Residents Association and Atlas Tower Group 1st Respondent Tesla Services Limited (Tsl) 2nd Respondent National Environment Management Authority 3rd Respondent (Being an Appeal from the entire Ruling and Order of the National Environment Tribunal (Hons. Emanuel Mumia-Chairman, Winnie Tsuma, Duncan Kuria, Ronald Allamano & David Njuguna Njoroge) dated and delivered on 28 February 2025, NET APPEAL NO. 23 OF 2024) Judgment Introduction and Background 1.Before this Court for determination, is the appeal preferred by Josephine Masibo, Pascaline Shiundu, Joseph Amwayi, and Christopher Komen, who sue in their capacity as the elected officials and representatives of the Migaa-ACK Roads Residents Association. 2.The Appellants are aggrieved by and dissatisfied with the entire Ruling and Order of the National Environment Tribunal (comprising Hon. Emmanuel Mumia - Chairman, Winnie Tsuma, Duncan Kuria, Ronald Allamano & David Njuguna Njoroge), which was dated and delivered on the 28th of February 2025 in NET Appeal No. 23 of 2024. 4.The genesis of this appeal stems from the 3rd Respondent's issuance of an Environment Impact Assessment (EIA) License authorizing the 1st and 2nd Respondents to commence the construction of a cell tower mast or transceiver. The impugned project, dubbed the 'Atlas Power Project,' is situated inside Mahera Academy on Migaa Road, Kiserian, on the land parcel described as No. Ngong/Ngong/107455. The Appellants allege that the project was commenced in utmost secrecy and without conducting the requisite public participation among the affected residents. 5.Consequently, upon purportedly discovering the existence of the project, the Appellants lodged an appeal before the National Environment Tribunal. However, the Tribunal summarily dismissed the Appellants' appeal, alongside their application dated 2nd December 2024, on the grounds that it was filed out of time and thus the Tribunal lacked the jurisdiction to hear the matter on its merits. In reaching its determination, the Tribunal classified the appeal as falling within the ambit of Section 129(1) of the Environmental Management and Coordination Act (EMCA), concluding that it had been filed one month after the expiry of the statutory deadline. 6.Dissatisfied with the Tribunal's decision, the Appellants filed the present Memorandum of Appeal dated 28th March 2025, contending that the Tribunal gravely erred in law and in fact. The Appellants aver that the Tribunal misapprehended its jurisdiction by erroneously categorizing the appeal under Section 129(1) rather than Section 129(2) of EMCA. They argue that the Tribunal failed to first establish whether the Appellants had participated in the process leading to the issuance of the license before declaring the appeal time-barred. 7.Furthermore, the Appellants fault the Tribunal for allegedly disregarding binding precedents from superior courts concerning the judicially determined applicability and differentiated locus standi accruing under the EMCA, thereby violating the doctrine of stare decisis. 8.The appeal was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this judgement. Analysis of Submissions The Appellants' Submissions 8.The Appellants advance their arguments on the central premise that the National Environment Tribunal misapprehended its jurisdiction by erroneously anchoring the dismissal of their appeal on Section 129(1) of the Environmental Management and Co-ordination Act (EMCA). It is their contention that the Tribunal ought to have interrogated the circumstances of the project's inception, which they allege was shrouded in secrecy and initiated without public participation. 9.Consequently, the Appellants submit that since they were entirely excluded from the licensing process, their challenge properly fell under the purview of Section 129(2) of the EMCA, and time should only have started running from 25th November 2024, the date they purportedly discovered the existence of the project. To reinforce the distinction in locus standi and statutory timelines between Section 129(1) and (2) of the Act, they place heavy reliance on the judicial pronouncements in Vincent Kioko Suing in his Capacity as Chairman for and on Behalf of Runda Gardens Residents Association v National Environment Management Authority & another (Environment and Land Appeal E086 of 2022) and Prof. Albert Mumma (in his capacity as Chairman Karen Langata District Association-KLDA) v Director, NEMA & 2 Others and the SDA Church, EA LTD (2021) eKLR. 10.The Appellants fault the Tribunal for departing from these decisions, arguing that this blatant disregard of superior court authorities offends the doctrine of stare decisis. In substantiating the mandatory nature of binding precedent, they cite the hallmark decisions in Cassell & Co. Ltd vs. Broome & Another [1972] AC 1072, Mwai Kibaki vs. Daniel Toroitich Arap Moi, National Bank of Kenya Ltd vs. Wilson Ndolo Ayah, and Republic v Chairman, Political Parties Disputes Tribunal & 2 others Ex Parte Susan Kihika Wakarura. Finally, the Appellants take issue with the Tribunal's decision to condemn them to pay costs, asserting that their litigation is driven purely by public interest concerns regarding their environment. On the principles guiding the award of costs and appellate interference, they rely on Mbogo vs Shah & Another (1968) EA 93 and Cricentia Veronica Atieno v Samuel Oloo Okoth [2017] КЕНС 2936 (KLR). The 1st and 2nd Respondents' Submissions 11.In opposing the appeal, the 1st and 2nd Respondents, who are the proponents of the impugned Atlas Power Project, maintain that the Tribunal’s decision to strike out the appeal was perfectly sound in law. They assert that they fully complied with all legal prerequisites, conducted extensive public participation, and were lawfully issued an Environmental Impact Assessment (EIA) License on 2nd September 2024. 12.It is their categorical submission that a plain and objective reading of the Appellants' pleadings before the Tribunal reveals that the predominant dispute was a direct challenge to the 3rd Respondent's decision to grant the EIA License. Therefore, they contend that the appeal squarely and inescapably falls within the strict ambit of Section 129(1)(a) of the EMCA, which prescribes a mandatory and non-extendable 60-day limitation period. 13.The 1st and 2nd Respondents submit that an "aggrieved person" under Section 129(1)(a) is not strictly confined to individuals who actively participated in the licensing process. They urge the court to find that the Appellants cannot artificially tailor or "shoehorn" their pleadings to fit Section 129(2) merely to bypass the expiry of the statutory deadline. In urging the court to focus on the true nature of the dispute to determine the applicable jurisdictional provision, they rely on the Supreme Court's authoritative guidance in Albert Chaurembo Mumba v. Director General, National Environment Management Authority & another. The 3rd Respondent's Submissions 14.The 3rd Respondent (National Environment Management Authority), aligning itself with the 1st and 2nd Respondents, submits that the EIA License was issued regularly following a transparent evaluation of the project's environmental impacts. 15.NEMA submits that the language of Section 129(1) of the EMCA is crystal clear and explicitly covers appeals relating to the grant of a license. They emphasize that the 60-day limitation period began running on 2nd September 2024 and expired long before the Appellants lodged their appeal in December 2024. NEMA contends that Section 129(1) applies to any aggrieved party irrespective of their participation in the initial process, while Section 129(2) is a residual provision intended only for decisions not expressly captured by the preceding subsection. They submit that the Appellants' reliance on cases such as Vincent Kioko and Simba Corporation Limited v Director General National Environment Management Authority & Another [2017] KEELC 310 KLR to establish two separate streams of appeals based on participation is fundamentally flawed. 16.Finally, the 3rd Respondent defends the Tribunal’s award of costs, asserting that since the Appellants instituted an action that was patently out of time, the general rule that costs follow the event must apply to compensate the Respondents for the unwarranted expense of defending a time-barred suit. Issues for Determination 14.Having carefully perused the Appellants' Memorandum of Appeal, the Record of Appeal, the rival written submissions, and the array of judicial authorities cited by the respective parties, this Court distills the dispute into the following singular, overarching questions for determination:a.Whether the National Environment Tribunal misdirected itself in law and in fact by classifying the Appellants' appeal under Section 129(1) instead of Section 129(2) of the Environmental Management and Co-ordination Act (EMCA), and consequently finding the appeal to be time-barred;b.Whether the Tribunal violated the doctrine of stare decisis by allegedly disregarding binding precedents from superior courts regarding locus standi and the interpretation of Section 129 of the EMCA;c.Whether the Tribunal erred in its exercise of judicial discretion by condemning the Appellants to pay the costs of the proceedings, in light of their assertion that they were engaged in public interest litigation; andd.What are the appropriate final orders to be issued by this Court, and who should bear the costs of the present appeal? Analysis and Determination a. Whether the National Environment Tribunal misdirected itself in law and in fact by classifying the Appellants' appeal under Section 129(1) instead of Section 129(2) of the Environmental Management and Co-ordination Act, 1999, and consequently finding the appeal to be time-barred 14.The gravamen of the present appeal concerns the proper interpretation and application of Section 129 of the Environmental Management and Co-ordination Act, No. 8 of 1999 (EMCA), and specifically whether the Appellants' challenge to the issuance of an Environmental Impact Assessment (EIA) Licence ought to have been entertained under Section 129(1) or Section 129(2) thereof. 15.The factual background giving rise to this dispute is largely uncontested. The 3rd Respondent, the National Environment Management Authority (NEMA), issued an EIA Licence on 2nd September 2024 authorizing the 1st and 2nd Respondents to undertake the construction of a cell tower mast or transceiver, namely the Atlas Power Project, situated within Mahera Academy on Land Parcel No. Ngong/Ngong/107455 along Migaa Road, Kiserian. 16.The Appellants, who are elected officials of the Migaa–ACK Roads Residents Association, contend that the project was initiated clandestinely and that the affected residents were excluded from the public participation process prescribed under EMCA and the Environmental (Impact Assessment and Audit) Regulations. They maintain that they only became aware of the existence of the project on 25th November 2024 and thereafter lodged an appeal before the National Environment Tribunal together with an application dated 2nd December 2024. 17.By a ruling delivered on 28th February 2025 in NET Appeal No. 23 of 2024, the Tribunal struck out the appeal, holding that the dispute was one challenging the issuance of an EIA Licence and therefore fell within the ambit of Section 129(1) of EMCA, which prescribes a period of sixty days within which an aggrieved person may appeal. The Tribunal found that the statutory period commenced on 2nd September 2024, being the date of issuance of the licence, and that the appeal had consequently been lodged outside the prescribed period. 18.The Appellants argue that the Tribunal erred in law by failing to first determine whether they had participated in the licensing process before deciding which limb of Section 129 was applicable. According to them, exclusion from public participation disentitled them from proceeding under Section 129(1), therefore meaning that Section 129(2) was the applicable provision. Time was to begin running only upon discovery of the project. 19.The Court has carefully considered the pleadings before the Tribunal, the memorandum of appeal, the rival submissions and the authorities relied upon by the parties. 20.Section 129(1) of EMCA provides that:“Any person who is aggrieved by— (a) a refusal to grant a licence or to the transfer of his licence 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..." 14.Section 129(2) on the other hand provides that:“Any person who feels aggrieved by a decision or order of the Authority, or any of its officers or agents under this Act or any regulations made thereunder, and which is not covered under subsection (1), may, within twenty-one days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal..." 14.The language employed in subsection (2) is that it applies only to decisions or orders "which are not covered under subsection (1)." Consequently, where the impugned administrative action is one specifically contemplated under Section 129(1), an aggrieved party cannot invoke Section 129(2) merely because they were dissatisfied with the manner in which the decision-making process was undertaken. 15.The Court agrees with the submissions of the Respondents that the predominant complaint advanced before the Tribunal was a challenge to NEMA's decision to issue an EIA Licence authorizing implementation of the Atlas Power Project. The allegations relating to lack of consultation and inadequate public participation constituted grounds upon which the validity of the licence was impugned; they did not alter the essential nature of the dispute. 16.The Court is unable to discern any provision within EMCA creating separate appellate pathways dependent upon whether an aggrieved party participated in the licensing process or not. Participation in public consultation may affect the merits of a challenge to an EIA licence, but it does not determine the statutory provision governing the appeal itself. 17.The Court is guided in this conclusion by the decision of the Supreme Court in Albert Chaurembo Mumba v Director General, National Environment Management Authority & Another, wherein the apex court emphasized that appeals arising from licensing decisions under EMCA are subject to the statutory timelines prescribed by Section 129(1). The Supreme Court's pronouncement is binding upon all courts and tribunals by virtue of Article 163(7) of the Constitution. 18.This Court therefore finds that the Tribunal correctly identified the Appellants' claim as one challenging the issuance of an EIA Licence and properly categorized it as falling within Section 129(1) of EMCA. 19.The licence having been issued on 2nd September 2024, the statutory sixty-day period expired before the appeal was instituted in December 2024. Once the limitation period lapsed, the Tribunal was divested of jurisdiction to entertain the matter. 20.Having correctly concluded that it lacked jurisdiction, the Tribunal could not proceed to interrogate the substantive complaints concerning public participation or the factual contestations surrounding the licensing process. 21.Accordingly, this ground of appeal fails. b. Whether the Tribunal violated the doctrine of stare decisis by disregarding binding precedents 14.The Appellants further contend that the Tribunal acted contrary to the doctrine of stare decisis by declining to follow the decisions in Vincent Kioko and Prof. Albert Mumma. 15.Article 163(7) of the Constitution provides that:“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court." 14.The doctrine of precedent obliges subordinate courts and tribunals to follow decisions of superior courts within the judicial hierarchy. However, where there exists an apparent tension between decisions of courts exercising coordinate jurisdiction and a pronouncement of the Supreme Court, the latter must prevail. 15.The Tribunal expressly considered the question of jurisdiction and adopted the interpretation of Section 129 advanced by the Supreme Court in Albert Chaurembo Mumba. In so doing, the Tribunal cannot be said to have violated the doctrine of stare decisis. On the contrary, it discharged its constitutional obligation under Article 163(7). 16.Further, once the Tribunal found that the appeal had been lodged outside the mandatory statutory period, it lacked jurisdiction to investigate the merits of the alleged failure to conduct public participation or to engage in an extensive examination of authorities touching upon those substantive issues. c. Whether the Tribunal erred in exercising its discretion by condemning the Appellants to pay costs 14.A different consideration arises regarding the award of costs. 15.The Appellants are officials of a residents' association representing persons residing in the vicinity of the impugned project. Their complaint concerned the possible infringement of the constitutional right to a clean and healthy environment guaranteed under Article 42 and enforceable under Article 70 of the Constitution. 16.Environmental litigation occupies a unique position within constitutional adjudication. The Constitution deliberately broadens standing in environmental matters to facilitate access to justice and encourage citizen participation in environmental governance. 17.Although the Tribunal correctly struck out the appeal for want of jurisdiction, the Appellants cannot be said to have acted frivolously, vexatiously or in bad faith. Their challenge arose from genuine concerns relating to public participation and the environmental consequences of the proposed development. 18.The imposition of costs upon community representatives who seek to vindicate environmental rights, albeit unsuccessfully and on procedural grounds, may have a chilling effect on public interest environmental litigation. 19.In the case of Amoni Thomas Amfry and Another vs The Minister for Lands and Another, Nairobi High Court Petition No. 6 of 2013, the late Majanja, J concurred with the decision in Harun Mwau and Others v. Attorney-General and Others, Nairobi High Court Petition No. 65 of 2011, [2012] eKLR, in which the court held that;“In matters concerning public-interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed. Costs should therefore not be imposed on a party who has brought a case against the State but lost.” 14.In the circumstances of this matter, this Court is satisfied that the Tribunal failed to sufficiently consider the public interest dimension of the dispute and thereby exercised its discretion unjustly. 15.An appellate court will interfere with the exercise of discretion where it is shown that the lower court acted upon wrong principles or arrived at a plainly unjust result, as stated in Mbogo v Shah & Another (1968) EA 93. 16.This ground of appeal therefore succeeds. 17.In the result, the Court finds that the appeal fails on the issues of jurisdiction and limitation but succeeds solely on the question of costs. 18.The Court accordingly makes the following orders:I.The Appellants' Appeal dated 28th March 2025 is dismissed in so far as it challenges the Tribunal's findings on jurisdiction and limitation.II.The Ruling and Order of the National Environment Tribunal delivered on 28th February 2025 in NET Appeal No. 23 of 2024 striking out the appeal for want of jurisdiction is hereby upheld.III.The order of the National Environment Tribunal condemning the Appellants to pay costs is hereby set aside.IV.Each party shall bear its own costs before the National Environment Tribunal and in this appeal. It is so ordered DATED, SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 2ND DAY OF JULY 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Ogada for the Appellant(s)Mr. Odhiambo h/b for Ms. Weru for the 1st and 2nd RespondentsN/A by the 3rd RespondentCourt Assistant: AlexM.D. MWANGIJUDGE