https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1380

One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others (Civil Appeal E326 of 2021) [2026] KECA 1380 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1380 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E326 of 2021 J Mohammed, M Ngugi & F Tuiyott, JJA July 10, 2026 Between One Hundred and Two Peponi Road Llp 1st Appellant Peponi road Residents' Association (In Formation) 2nd Appellant and National Environment Management Authority 1st Respondent Nairobi County Government 2nd Respondent Airview Properties Limited 3rd Respondent (Being an appeal from the Ruling and Order of the Environment and Land Court at Nairobi (L. Komingoi, J.) dated 15th April 2021 in ELC JR Application No. E014 of 2020) Judgment 1.Air View Properties Limited (Air View or 3rd respondent) is the registered proprietor of a high value property known as LR. No. 17/432. Its attempt to develop offices on the property ran into headwinds when opposed by One Hundred and Two Peponi Road LLP (One Hundred and Two) and Peponi Road Residents Association (In formation) (both the appellants) in judicial review proceedings before the Environment and Land Court (ELC) at Nairobi in ELC Judicial Review application No. E014 of 2020. 2.In those proceedings, the case by One Hundred and Two was that sometime around 29th November 2020, it noticed increased activity on the property belonging to Air View. Upon inquiry, the personnel at the site informed it that an unnamed developer was planning to put up a 3-storey office block on the property. One Hundred and Two contended that there was no notice board erected as required by law on LR. No. 17/432, forcing it to make inquiries about the proposed development with the National Environment Management Authority (NEMA or 1st respondent) and Nairobi City County Government (NCC or the 2nd respondent). 3.It learnt that the owner of the property was Air View who had applied for and obtained a notification of development permission dated 13th November 2018 (PPA2) which authorized change of user of the property from ‘Residential’ to ‘Offices’ and construction of a development limited to 3 levels. Further, that Air View had obtained approved building plans from the NCC on 30th January 2020. 4.Indeed, Air View had made extensive progress towards obtaining all approvals for the development. It had submitted an Environment Impact Assessment (EIA) Report dated 3rd March 2020 prepared by iPlan Consult (Intl) Ltd (iPlan). It was contended for One Hundred and Two that iPlan had consulted only six (6) individuals from teachers to receptionists to lab technicians from one premises, a school called Millennium School. It complained that it was not consulted yet its property faces the property of Air View across Matundu River which will be most impacted by the proposed development. One Hundred and Two also learnt that NEMA had issued Air View with an EIA licence dated 13th October 2020. 5.In the judicial review proceedings, One Hundred and Two contended that because of deliberate failure by Air View to conduct a public participation exercise as required by law and to erect a notice board prior to commencement of the construction, in violation of the Physical Planning Act (PPA), its regulations and the Environment Management and Co-ordination Act, 1999 (the EMCA), its statutory right to challenge the EIA Licence before the National Environment Tribunal (NET) within 60 days as specified in section 129 of the EMCA had been compromised. 6.Regarding the planning permission, One Hundred and Two argued that notwithstanding that the PPA2 issued on 13th November 2018 required construction to be complete within 2 years, the permission had expired and the construction was in violation of the PPA. In any event, Air View had failed to adhere to the provisions of regulation 17(1) of the Regulations which required Air View, in consultation with NEMA, to seek views of persons who may be affected by the project. 7.It was on this basis that One Hundred and Two and Peponi Road Residents sought and obtained leave of the ELC on 22nd December 2020 to commence judicial review proceedings which they mounted by way of a notice of motion dated 23rd December 2020. 8.In response, Air View raised a preliminary demurrer to the motion asserting that: the ELC lacked jurisdiction to entertain the proceedings by virtue of section 125 of EMCA; Peponi Road Residents was an unincorporated body with no capacity to sue in the manner it had purported to sue; and the proceedings were res judicata on account of High Court Judicial Review Application No. E1158 of 2020, One Hundred and Two, Peponi Road LLP and Another vs National Environment Management Authority & 2 Others. 9.Regarding the process, Air View responded that it published a public notice in the Standard newspaper on 19th January 2018 inviting anyone with an objection to the proposal for change of user to forward the same in writing within 14 days, and that the appellants did not object. It confirmed obtaining the approval for change of user dated 13th November 2018 and the development permission. 10.Air View alluded to the EIA report and also stated that, as required by law, the Water Resources Authority availed a summary report dated 16th September 2020 making certain recommendations regarding protection and conservation of the water resources and riparian, and the observance and conservation of an eight-metre flood area and a fifteen-metre riparian reserve. Subsequently NEMA issued the EIA licence on 13th October 2020. 11.Regarding display of a notice board, Air View averred that it had prominently displayed one and a photo of it was attached to the replying affidavit which carried the response. 12.On its part, the County Government filed grounds of opposition countering primarily that the motion was premature, misconceived, bad in law for non-compliance with section 13(1) of the PPA which requires any person aggrieved by a decision of the Director concerning any physical development plan or matters connected to, within 60 days of receipt of notice of such decision, appeal to the respective Liaison Committee, and that the ELC did not have jurisdiction to entertain the matter until the appellants had exhausted the available alternative remedies. 13.NEMA, too, in a notice of preliminary objection dated 17th February 2021, joined Air View in asserting that the ELC was not the appropriate forum to hear the matter by dint of section 129 of EMCA, and the proceedings were for striking out. 14.In the ruling of 15th April 2021, which is the subject matter of this appeal, the ELC (Komingoi, J.) held that the appellants herein had failed to demonstrate that there existed exceptional circumstances to warrant them to move the ELC before exhausting the dispute resolution mechanisms set out in the PPA and EMCA, and the learned Judge struck out the entire proceedings with costs to the respondents. 15.In the appeal before us, the appellants raised ten grounds which they compressed into two issues:a.Whether or not the ELC erred in law in relying on contested facts and evidence contained in Air View’s replying affidavit, yet the replying affidavit was in reply to the judicial review application and not related to the preliminary objection.b.Whether or not the ELC was right in dismissing the judicial review application, yet the alternative remedy was not available to them. 16.At the hearing of the appeal, learned Counsel Mr Abbas Esmail represented the appellants while learned Counsel Mr Elijah Mwangi appeared for the 3rd respondent alongside learned Counsel Mr Kimani and Mr Wanyoike. Both sides highlighted written submissions filed on behalf of their clients. 17.On the first issue, the appellants argued that the ELC committed grave procedural and legal errors by relying on the 3rd respondent’s replying affidavit to determine a preliminary objection. They contended that significant procedural lapses occurred during the hearing on 9th February 2021, when the learned Judge misapprehended her own directions by lumping the 1st respondent’s preliminary objection with that of the 3rd respondent, despite the 1st respondent’s counsel being absent at the directions. Citing Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others (Application 50 of 2014) [2015] KESC 23 (KLR) which relied on the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E.A. 696, for the proposition that a preliminary objection must consist of a pure point of law and cannot derive its foundation from factual information requiring evidence, they contend that because the learned Judge had expressly directed that the 3rd respondent’s preliminary objection be canvassed first, there was no room for her to consider the factual and contested matters set out in the replying affidavit, maintaining that the preliminary objection should have been determined based on the material already on record produced by the appellants. It was submitted, further, that the learned Judge erred in her ruling by mischaracterizing the replying affidavit as being sworn on a notice of preliminary objection when it was clearly a response to the main application and posited that it was inconceivable for a replying affidavit to support a preliminary objection. 18.The appellants contended that the learned Judge committed a grave error by relying on the affidavit to find they were aware of the construction way back in 2018, accusing the ELC of fishing out tenuous arguments based on a proposed change of user advert that contained false and misleading property descriptions. They argued that the tiny 12-line advert did not specify any construction or development and could not have alerted them to a project whose environmental impact assessment process under the EMCA had not even commenced. They asserted that the learned Judge misdirected herself because a preliminary objection has no room for ascertaining disputed facts through affidavit evidence, as an objector must proceed on the assumption that the facts pleaded by the applicant are correct and admitted. 19.It was the appellants’ position that the parties were strictly bound by their pleadings as re-established in Independent Electoral and Boundaries Commission & another v Mule & 3 others (Civil Appeal 219 of 2013) [2014] KECA 890 (KLR) and Ali v Independent Electoral and Boundaries Commission & 2 others (Petition 31 of 2018) [2019] KESC 58 (KLR). The appellants argued that a court of law was itself bound by the pleadings of the parties, and that any decision given on a claim or defence not pleaded amounted to a determination made without hearing the parties and led to a denial of justice, citing Independent Electoral and Boundaries Commission & another v Mule & 3 others (supra). They contended that the 3rd respondent’s attempt to incorporate the 2nd respondent’s grounds of opposition dated 26th January 2021 through submissions was impermissible because submissions could not take the place of pleadings and were merely the marketing language of parties intended to convince a court, as held in Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR). The grounds could not be relied upon to anchor the preliminary objection because those grounds were expressly a merit response to the Judicial Review application, and using them to determine the preliminary objection ambushed the appellants. They further posited that the provisions of the PPA were wholly inapplicable since the appellants were challenging a failure to adhere to EMCA and its regulations, meaning the internal appeal mechanisms of the PPA did not apply and resorting to them was an error of law and fact. In any event, the advertisement published by the 3rd respondent contained fatal errors regarding the location of the property, making it impossible for the appellants to lodge any appeals under the PPA. The decision in Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KECA 376 (KLR) was cited to distinguish between grounds of opposition, which must not be blurred with factual details liable to be proved by evidence, and a preliminary objection, which is a pure point of law resolved without considering the merits. 20.On the second issue, the appellants contended that the ELC erred in dismissing their application for non-exhaustion because the alternative remedy was effectively unavailable. The appellants argued that in dismissing the judicial review application, the learned Judge failed to appreciate that the purpose of the exhaustion doctrine, as explained in Muthinja & another v Henry & 1756 others (Civil Appeal 10 of 2015) [2015] KECA 304 (KLR), was to ensure that there was a postponement of judicial consideration to allow a party to first be diligent in protecting its interests through resolution mechanisms outside the courts. The mischief intended to be cured by the exhaustion doctrine did not arise in their case because they had undertaken diligent steps to obtain information, including sending various letters to the 1st respondent and conducting physical visits to its offices, yet they only received confirmation of the EIA licence after the sixty-day statutory period to appeal to the National Environmental Tribunal (NET) had already lapsed. They acknowledged that the doctrine of exhaustion, as reiterated in Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) and Geoffrey Muthinja Kabiru (supra), was a constitutional and legal imperative under Article 159(2)(c) of the Constitution and section 9(2) and (3) of the Fair Administrative Action Act (FAAA).However, that section 9(4) of the FAAA provided an explicit exception where a court may, in exceptional circumstances and on application, exempt a person from the obligation to exhaust remedies in the interest of justice. They maintained that the exhaustion principle was not absolute, citing Fleur Investments Limited v Commissioner of Domestic Taxes & another (Civil Appeal 158 of 2017) [2018] KECA 341 (KLR) and argued they had candidly disclosed the existence of the alternative remedy and the fact that the timeline had lapsed through no fault of their own, evidence which the learned Judge completely ignored. While FAAA does not define exceptional circumstances, the High Court in Republic v Commissioner of Domestic Taxes Ex parte Sony Holdings Limited [2019] KEHC 11987 (KLR) interpreted it to mean circumstances out of the ordinary that render it inappropriate to require an applicant to pursue standard alternative remedies. Finally, they argued that the requirement for circumstances to be exceptional meant they must be well outside the normal run of circumstances found in cases generally, depending on the specific facts and the nature of the administrative action at issue. 21.Drilling down on this point, the appellants posited that the delay was directly caused by the 1st respondent’s refusal to provide timely, full, and accurate disclosure regarding the process the 3rd respondent undertook to obtain the EIA licence. In the absence of a public notice or sufficient communication and public participation by the 1st respondent, it was impossible to know when the licence was issued, citing the case of National Environment Tribunal No. NET 23 of 2007 Mrs. Beth Wambui Mugo and 7 Others v Director-General NEMA and Another where similar notification challenges were recognized. They argued that the challenges Kenyans face in receiving NEMA communications in regard to the issuance of licenses are well- known to the NET and ELC, referencing Albert Mumma in his capacity as Chairman, Karen Langata District Association (KLDA) v Director General - National Environmental & 2 others [2018] KENET 31 (KLR) and Simba Corporation Limited v Director General, National Environment Management Authority (NEMA) & another [2017] KEELC 310 (KLR), where the courts and tribunal observed that the mode of notification and the time an appellant becomes aware of a decision are material factors. They asserted that while the NET offers an alternative remedy, it is strictly time- limited and the tribunal lacks the jurisdiction to extend the sixty-day statutory limit, as held in the Albert Mumma Case and Micah Mutoko & 4 others v Director General, National Environment Management Authority & 2 others [2018] KEELC 3879 (KLR). Consequently, they argued that the superior court's ruling forced them into an exercise in futility by requiring them to lodge a time-barred appeal that would inevitably be dismissed for being out of time. 22.In supplementary submissions, the appellants drew our attention to findings of the Supreme Court in Nicholas v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) and the ELC in Northern Block Residents Limited v National Environment Management Authority & 2 others (Environment and Land Case Judicial Review Application E001 of 2024) [2024] KEELC 6170 (KLR) for the position that; the doctrine of exhaustion must not be applied indiscriminately and requires a case-by-case analysis of unique circumstances; the ELC possesses unlimited original and appellate jurisdiction over environmental and land disputes; and the need for a nuanced approach when dealing with exhaustion in the context of the Bill of Rights, asserting that a party challenging NEMA’s decisions has the option to choose between the NET or the ELC. Crucially, that interpreting and applying the Constitution remains the exclusive preserve of the High Court and ELC, and therefore the NET lacked the requisite jurisdiction to entertain their complaint. 23.In response, the 3rd respondent submitted that the learned Judge did not err in determining and considering the 1st respondent’s Preliminary Objection and the 3rd respondent's replying affidavit, noting that the 1st respondent’s counsel had stated in open court that they would rely on the 3rd respondent's submissions, with no protest by the appellants. It was unmerited therefore to raise the issue at this juncture. There was no error in the court considering the contents of the 3rd respondent’s replying affidavit because section 13(1) of the Environment and Land Court Act No. 19 of 2011 mandated that the court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and other applicable laws. They maintained there was no fetter on the court to refrain from considering evidence presented by the parties in determining preliminary objections, especially as the facts were not disputed and the appellants had failed to present a supplementary affidavit despite being granted leave to do so on 9th February 2021. Citing Mukisa Biscuit (supra), the 3rd respondent defined a preliminary objection as consisting of a point of law pleaded or arising by clear implication which may dispose of the suit argued on the assumption that all facts pleaded by the other side are correct. The Supreme Court's pronouncement in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) was cited to contend that a true preliminary objection serves the public cause of sparing scarce judicial time and acts as a shield against profligate deployment of resources, asserting their own notice served exactly this purpose. The 3rd respondent relied on the decision in David Nyekorach Matsanga & another v Philip Waki & 3 others [2017] KEHC 3631 (KLR) for the argument that the focus ought to be both on the purpose and the nature of the preliminary objection, a decision that made reference to the Ruling in Lady Justice Kalpana H. Rawal & 2 others v Judicial Service Commission & 6 others [2016] KESC 3 (KLR), which gave less prominence to the strict approach in Mukisa Biscuit case and held that where an objection raised a fundamental issue, it was appropriate to have the issue settled first even if there were apparent factual conflicts. 24.Regarding the appellants' allegations about the advertisement's description of the plot and location, the 3rd respondent argued that this was evidence by written submissions and that the appellants had failed to rebut the advertisement through a supplementary affidavit, which should have been presented before the NET or liaison committee. Finally, citing Moi v Muriithi & another (supra), it was contended that submissions cannot take the place of evidence and are merely marketing language of parties, and therefore the court should not countenance claims not proved by evidence. 25.Turning on to a second issue, the 3rd respondent submitted that the appellants had deliberately filed their application before the court despite the existence of alternative statutory mechanisms, observing that this was not their first misstep as they had initially filed the application in the Judicial and Review Division of the High Court before it was transferred to the Environment and Land Court on 18th December 2020. Since the EIA Licence had been issued on 13th October 2020, the appellants ought to have invoked the jurisdiction of the NET under Sections 125 and 129(3) of EMCA. This position was buttressed by the Supreme Court in Adega & 2 others v Kibos Distillers Limited & 5 others (Petition 3 of 2020) [2020] KESC 36 (KLR), which held that superior courts incorrectly determined they had jurisdiction over multifaceted issues that were clearly within the purview of legislatively established tribunals like the NET and the National Environmental Complaints Committee. It was argued that the trial court correctly relied on the doctrine of judicial abstention in finding that the appellants ought to have first approached the NET before filing suit. Citing Republic v National Environmental Management Authority [2011] KECA 412 (KLR), it asserted that where Parliament has provided a statutory appeal procedure, judicial review should only be granted in exceptional circumstances after the court carefully examines the suitability of the statutory appeal and the tribunal's powers.They further relied on Whitehorse Investments Ltd v Nairobi City County [2019] KECA 102 (KLR) for the principle that where a clear procedure for the redress of grievances is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. 26.It was submitted, further, that the superior court committed no error in considering that the appellants had also failed to exhaust the mechanisms provided by the Physical Planning Act, especially since the appellants’ own pleadings made it clear that the Act was applicable to the matter. The 3rd respondent sought anchor in the decision in Vuko v Kilumo & 2 others (The Registered Officials of Prisons Kiwandani Residential Upgrading CBO) (Civil Appeal 65 of 2015) [2016] KECA 541 (KLR) to highlight that the PPA provides an elaborate dispute resolution mechanism, including appeals to the relevant Liaison Committee and National Liaison Committee, which the appellants failed to utilize. 27.It was argued that the appellants’ primary basis for invoking the court's jurisdiction, the premise that the NET lacks jurisdiction to extend the 60-day statutory limitation, should be greatly frowned upon. It was asserted that the appellants were aware of the strict statutory timelines but opted to ventilate their grievances before the ELC without proffering any exceptional circumstances for failing to institute an appeal before the NET. It was posited that a party cannot pre-empt the outcome of a matter before the tribunal before filing a complaint and cited Nabro Properties Ltd v Sky Structures Ltd & 2 others [2002] KECA 296 (KLR) for the legal maxim that a person shall not avail himself of his own wrong. Finally, that the appellants sought to take advantage of their own failure to file a timely appeal, and that the learned Judge was correct in finding that no exceptional circumstances existed to justify bypassing the statutory process. 28.Regarding a related issue, the 3rd respondent submitted that it was not true that the superior court failed to take into account the appellants' evidence or denied them access to justice, pointing to paragraph 25 of the learned Judge’s ruling which explicitly stated that she had considered the preliminary objections, the written submissions, and the cited authorities. In addition, the court held, in paragraph 35 of the ruling, that the proceedings were not res judicata and addressed the 2nd applicant's lack of locus standi, which they argued served to discount the appellants' claim that they were not accorded a fair hearing. The 3rd respondent asserted that there was no basis for the appellants' contention that the court failed to consider the issues raised in paragraph 35 of their own submissions, specifically regarding the 60-day statutory limit in section 129(1) of the EMCA, and maintained that the reasons provided did not fall within the exceptional circumstances or exceptions to the doctrine of exhaustion. 29.Having reflected on the grounds of appeal and submissions filed by the parties, we formulate two issues for determination; what the scope of the preliminary objection before the ELC was; and whether, in considering the demurrer, the ELC could properly reach the decision that the appellants had not exhausted the alternative remedy available to them. 30.In paragraph 6 of the impugned ruling, the learned Judge says as follows as to what was before her:“On the 9th February 2021 the court directed that the preliminary objections by the 1st and 3rd respondents be heard first in priority to the Notice of Motion dated 23rd December 2020. The court also directed, with the consent of parties that the preliminary objections be canvassed by way of written submissions.” 31.A complaint in this appeal is that these directions did not extend to the objection regarding non-exhaustion of the remedy granted under the PPA, and the learned Judge erred in entertaining and subsequently determining it. The objection regarding the PPA was raised by the County Government (2nd respondent) only, which in fact did not make any submissions or participate in the proceedings which resulted in the impugned ruling. Even looking at the proceedings of 9th February 2021, the 2nd respondent was not present in court when learned counsel Mr. Mwangi, acting for Air View, addressed the court as follows:“We have a preliminary objection and the replying affidavit. We seek a date at the earliest opportunity. The contractor is still incurring losses.”It was then that the court gave directions that the preliminary objection would be heard first. 32.Further clarity that it was the matter touching on EMCA that was the business before the court, was provided when Mr. Mwangi, again, informed the court as follows on 4th March 2021:“The 1st respondent filed a similar preliminary objection like the 3rd respondent. He (sic) has instructed that they will be relying (sic) on our submissions. He is attending a seminar in Mombasa.” 33.As earlier noted, the 1st respondent (NEMA) had indeed raised a similar objection as Air View by way of a preliminary objection dated 17th February 2021. Nothing arose regarding the PPA. It is therefore plain to us that the learned Judge erroneously expanded the scope of the preliminary objection before her to include arguments around the remedies under the Physical Planning Act, and her findings in that regard are for setting aside. 34.A second aspect of the scope of the objection is whether reliance, as well, by Air view on its replying affidavit to support its preliminary objection was impermissible. For starters, we observe that paragraph 3 of the now controversial affidavit reproduces, literally word for word, the objection raised in the notice of preliminary objection filed. It did not introduce another objection in any shape or form. The view we take is that Air View was entitled to rely on the replying affidavit to buttress its objection but only as relevant to the demurrer and in respect to uncontroverted facts. Whether or not the ELC strayed into contested facts which had a bearing on the fate of the objection is the crucial matter answered shortly. 35.The appellants had, in their notice of motion, explained that because Air View had failed to conduct public participation and public hearing as required by law, and had deliberately failed to erect a notice board prior to the commencement of the construction, their right to challenge the EIA licence before the National Environment Tribunal within the statutory period of 60 days set out in subsection 1 of section 129 of EMCA had been compromised. This was rehashed in the affidavit in support of the motion. 36.On its part, Air View, responding through the affidavit of Mr. Shah, averred that; it did not undertake the construction in a clandestine manner; it had prominently and conspicuously erected a signboard on the property, attaching a copy of a photo of the notice board to the affidavit; and that its lead expert, iPlan, had consulted various persons in the process of obtaining the EIA licence. 37.While the appellants never took advantage of the leave granted to them to file a further affidavit, the truth of the matter is that the affidavits already on record revealed rival positions regarding two decisive matters; whether there was public participation in the process of obtaining the EIA licence, and whether a notice board had been duly erected by Air View as required by the law. These were already disputed facts even without a further affidavit. 38.It was also the position of One Hundred and Two that it was only in a meeting of 16th December 2020 with an officer of NEMA that they were informed that NEMA had issued Air View with an EIA licence on 13th October 2020 and were allowed to actually see a copy of it the next day (17th December 2020). 39.So, the ELC was faced with competing facts when called upon to determine the preliminary objection. Facts that would be at the very heart of the all-important question; whether there existed exceptional circumstances for the appellants to leapfrog the alternative dispute resolution mechanism offered by EMCA. It was critical for the ELC to establish when the appellants became aware of the existence of the EIA licence because, if it was true that the appellants only learnt of the licence after the 60-day window had closed, then they would have a strong argument that by the conduct of the 3rd respondent, the remedy available to them under section 129(1) had suffered a fatal compromise. 40.Section 129 reads as follows;“129.Appeals to the Tribunal1.Any person who is aggrieved by—a.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;b.the imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations;c.the revocation, suspension or variation of the person's licence under this Act or its regulations;d.the amount of money 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.3.Upon any appeal, the Tribunal may—a.confirm, set aside or vary the order or decision in question;b.exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; orc.make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just;d.if satisfied upon application by any party, issue orders maintaining the status quo of any matter or activity which is the subject of the appeal until the appeal is determined;e.if satisfied upon application by any party, review any orders made under paragraph (a).4.Any status quo automatically maintained by virtue of the filing of any appeal prior to the commencement of subsection (3) shall lapse upon commencement of this section unless the Tribunal, upon application by a party to the appeal, issue fresh orders maintaining the status quo in accordance with subsection (3)(a).” 41.There is a line of case law that has held that the time set out in subsection 1 of section 129 is not extendable (see for example Olago & another (Suing on Behalf of 26 other Persons) v Director General Nema & another (Environment & Planning Appeal E008 of 2023) [2025] KEELC 1139 (KLR)).We make this observation on the basis that the parties herein proceeded on the assumption that the grievance by the appellants fell under subsection 1 and not subsection 2 of section 129 of the Act, the latter not restricted by the 60 day timeline. See the decision of this court in National Environmental Tribunal v Overlook Management Limited & 5 others [2019] KECA 1005 (KLR) which discusses these two streams of grievances. 42.Given our findings, this was not the ideal situation for the ELC to determine the preliminary objection as established in the old and famous decision of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696 in which Law J.A held that;“So far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection on the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 43.We now turn to examine how the learned Judge attempted to resolve the rival positions. In paragraph 27 of the impugned ruling, the learned Judge makes a finding that:“It is clear from the above averments that the ex parte applicants were aware of the 3rd respondent’s plans to undertake the construction way back in 2018.” 44.This finding could never be in regard to when the appellants became aware of the EIA licence issued on 13th October 2020, two years after 2018. Combing through the decision, we do not see any discussion or finding by the ELC as to when the appellants became aware of the EIA licence. We indeed doubt that the ELC would have made a positive finding on this contested issue on the basis of the rival affidavit evidence before it. Again, we observe that if, in the end, it is unequivocally established that the appellants became aware of issuance of the EIA licence after the lapse of the time set out in section129(1) to seek a remedy from NET, then the appellants’ right under that provision would, to use their words, be ‘compromised'. The dispute resolution mechanism would no longer be available to them, and to insist that they pursue it would be to force them into a legal cul de sac. 45.In the end we find merit in the appeal. The superior court below could not determine the preliminary objection on the basis of the contested material before it. For this very reason, we will not answer the second issue: whether, in considering the demurrer, the ELC could properly reach a decision that the appellants had not exhausted the alternative remedy available to them. The ELC may still determine the objection raised in the notice of preliminary objection, not as a preliminary objection, but upon first interrogating the evidence that can help it resolve the contested matters. 46.Accordingly, we find that the appeal is for allowing. We set aside the Ruling and Order of the ELC delivered on 15th April 2021. The matter is remitted to the ELC before a judge other than Komingoi, J. 47.Costs of this appeal and costs of the preliminary objection before the ELC shall be to the appellants against the 3rd respondent. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.JAMILA MOHAMMED…………………………JUDGE OF APPEALMUMBI NGUGI…………………………JUDGE OF APPEALF. TUIYOTT…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.