[2022] KENET 724 (KLR)

Matus & another v National Environment Management Authority & another (Tribunal Appeal 1 of 2022) [2022] KENET 724 (KLR) (Civ) (28 September 2022) (Ruling)

Neutral citation: [2022] KENET 724 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 1 of 2022

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

September 28, 2022

Between

Jason Edward Matus

1st Appellant

Catherine Rosemary Bond

2nd Appellant

and

National Environment Management Authority

1st Respondent

Intex Construction

2nd Respondent

Ruling

1. The appellants filed the notice of appeal dated January 11, 2022 and thereafter the 1st respondent raised an objection by filing a preliminary objection on February 28, 2022 on the following grounds:a.This court lacks jurisdiction to hear and determine the matters raised in this appeal and application in view of the provisions of section 129 of the Environment Management and Coordination Act,No 8 of 1999. b.That this appeal should be struck out and dismissed as the same is time barred, bad in law and contravenes the provisions of Environment Management and Coordination Act,No 8 of 1999. c.Consequently, the application and appeal should be dismissed with costs to the 1st respondent- NEMA.

2. The 1st respondent filed written submissions and list of authorities. Both dated March 28, 2022.

3. The appellants nd the 2nd respondent did not filed written submissions in respect of the preliminary objection.

4. Having considered the written submissions by the 1st respondent and the authorities and the single issue for determination in notice of the preliminary objection is jurisdiction.

5. The 1st respondent submitted the tribunal has no jurisdiction because the appeal has been filed outside the mandatory 60-day period prescribed by section 129(1)of EMCA2015.

6. Jurisdiction is the foundation needed by any court or tribunal to deal with any matter before it. In the case of Owner of Motor Vessel Lilian S v Caltex Oil (Kenya) Ltdthe honourable court held:“With that I return to the issue of jurisdiction and to the words of section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

7. This tribunal is established under section 125 of Environmental Management and Co-ordination Act (EMCA) No 8 of 1999 and thus gets its authority and power from this Act and under Constitution of Kenya 2010 with reference to hierarchy of Courts in Kenya. Upon Appeals being filed under section 129 of theEMCA, this Tribunal has power to grant the following orders under section 129(1) and (2) of EMCA which provides as follows.“Any person who is aggrieved by: -(a) the grant a license 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.(b) the imposition of any condition, limitation, or restriction on the persons license under this act or its regulations.(c) the revocation, suspension, or variation of the person’s license under this act or its regulations.(d) the amount of money which required to paid as a fee under this act or its regulations.(e) the imposition against the person of an environmental restoration order or environmental improvement order by the authority under this act or its regulations,“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.”(2) Unless otherwise expressly provided in this act, where this act empowers the director-general, the authority or committees of the authority or its agents to make decisions, such decisions may be subject to an appeal to the tribunal in accordance with such procedures as may be established by the tribunal for that purpose.

8. The Tribunal is established under the above stated statute specifically to deal and adjudicate over environmental decisions made by National Environment and Management Authority which may adversely compromise the well laid down principles of sustainable development. This Appeal is challenging issuance of the EIA Licence No NEMA/SPA/4315 and seeking its revocation .

THE ANALYSIS 9. The EIA Licence No NEMA/SPA/4315 was issued by the 1st respondent to the 2nd respondent and is dated October 22, 2021 while the Appeal challenging this licence is filed on January 21, 2022.

10. There is no dispute that the appeal is brought under section 129(1) of EMCA, and the EIA Licence and the appeal were issued and filed on the said dates, respectively. The period required for filing the appeal is within 60 days.

11. The dispute seems to be around the period required to file the appeal. We need to compute the days the appellants took to file the appeal herein.

12. The 10 days in the month of October 2021, the month November 2021 had 30 days the month of December had 31 days and adding 21 days in the month January 2022 the computation is 92 days which is 32 days later than the stipulated 60 days period under the statute and thus the Tribunal agrees with the 1st respondent that the appeal is filed out of time.

13. The challenge on the jurisdiction of this tribunal is therefore sustained because it is clear without properly filed appeal to give jurisdiction the tribunal must down its tools.

Orders 14. The tribunal therefore hereby allows the notice of preliminary objection by the 1st respondent whose effect is striking the entire appeal.

15. Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI, THIS 28TH DAY OF SEPTEMBER 2022Mohammed Balala……………………………………………ChairpersonChristine Kipsang…………………………Vice ChairpersonBahati Mwamuye……………………………………………………………MemberWaithaka Ngaruiya……………………………………………………MemberKariuki Muigua……………………………………………………………MemberThis ruling has been delivered electronically and it is to be shared by the parties via email.