[2022] KENET 722 (KLR)

Skylers Investment Holding Ltd v The National Environment Management Authority (NEMA) & another (Tribunal Appeal 49 of 2020) [2022] KENET 722 (KLR) (Civ) (26 September 2022) (Ruling)

Neutral citation: [2022] KENET 722 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 49 of 2020

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

September 26, 2022

Between

Skylers Investment Holding Ltd

Appellant

and

The National Environment Management Authority (NEMA)

1st Respondent

Gatundia Concrete Ltd

2nd Respondent

Ruling

1. Before getting into the analysis of the preliminary objection we would like to point out that we have noted confusion in the order of listing parties in the pleadings filed by the parties. In some pleadings Gatundia Concrete Limited is listed as the 1st respondent while in others it is listed as the 2nd respondent. In other pleadings the National Environment Management Authority is listed as the 1st respondent while in others it is listed as the 2nd respondent. For the purpose of this ruling, the National Environment Management Authority is the 1st respondent while Gatundia Concrete Limited is the 2nd respondent.

2. The notice of appeal dated December 3, 2020 is brought pursuant to section 126 (2) and 129 (2) of the Environment Management and Co-ordination Actand rule 4 of theNational Environment Tribunal Procedure Rules, 2003. The appeal is against issuance of NEMA license no NEMA/ EIA/PSL/8133 issued on July 1, 2019 to the 2nd respondent herein.

3. The appellant raises the following grounds of appeal inter alia:-a.The appellant is the absolute registered proprietor of Lr Marmanet Melwa Block 1/5024 (muhotetu) situate within Gatundia, within Laikipia County measuring approximately 3. 688Ha. The dominant use of the land is for agricultural farming community.b.The appellant has been engaging in open-field horticultural farming where they grow tomatoes, onions, capsicum, butternut and a variety of fruits for commercial purpose.c.The 2nd respondent owns land adjacent to that of the appellant and in the month of October 2020, the 2nd respondent started operating a stone crusher which has negatively impacted on the agricultural activities on the appellant’s land.d.The dust emanating from the crusher and the lorries carrying materials from the crusher is being directly deposited on the surface of crops (leaves, stem, branches, flowers) and as a result screening out sunlight, blocking stomata which lowers the crops conductance to carbon dioxide thus interfering with photosynthesis affecting productivity negatively.e.The dust from the crusher has lowered the market value of the appellant’s crops.f.The dust deposits on vegetation has potential adverse impact on wildlife through contamination of food for wildlife as well as destruction of habitat for fauna including birds and insects that reside and depend on vegetation.g.The dust from the crusher is impacting negatively on livestock grazing on the grass and shrubs around the crusher.h.Pollution of air from the dust and emissions as well as covering of vegetation by dust from the stone crusher has resulted in significant loss of aesthetic and recreational value of the immediate physical environment.i.The dust from the crusher has polluted the air.j.The pollution from the stone crusher has resulted in decline in value of the appellant’s property.k.The stone crusher has negatively impacted on Lorian River by way of deposit by wind of suspended particulate matter as well as fine dust.l.Deposition of dust from the crusher is causing damage to roofs of houses especially during rains.m.Blasting of the crusher is generating excessive vibrations resulting in cracking of houses and causing noise pollution.n.The EIA license issued to the 2nd respondent was issued illegally with no public participation.

4. The appellant seeks the following reliefs:-a.Cancellation and/ or revocation of the Environment Impact Assessment License issued to the 2nd respondent on July 1, 2019 being license noNEMA/ EIA/PSL/8133;b.A permanent prohibition order against the 2nd respondent restraining the 2nd respondent from continuing with operations of the crushing plant namely:-Gatundia Concrete Limited Crushing Plant.c.Costs of appeal to be awarded to the appellants; andd.Any other order that the tribunal may deem fit and just in the circumstances.

5. The 1st respondent filed a notice of preliminary objection dated February 25, 2021 seeking to raise a point of law under section 129 (1) of the Environment Management and Co-ordination Act (EMCA) on the ground that:-The appeal dated December 3, 2020 and filed on December 4, 2020 by the appellant is not properly before this honourable tribunal as the same has been filed after the lapse of the statutory period of 60 days as provided by section 129 of the Environmental Management and Coordination Act.For this reason the 1st respondent avers that the appeal is time barred and prays that it be dismissed with costs.

Submissions By The Parties respondent’s Submissions 6. The 1st respondent filed its submissions in support of its preliminary objection on March 1, 2021. On whether the appeal is duly filed, it submits that an appeal should be lodged within sixty (60) days for it to be considered a valid appeal. The 1st respondent places reliance on section 129 (1) of EMCA and submits that it provides a limitation period of 60 days from the date of occurrence of the impugned event within which the dissatisfied party is to present an appeal to NET.

7. The 1st respondent submits that the impugnedEIAlicense No NEMA/EIQ/PSL/8133 was issued on July 1, 2019 which is 16 months prior to lodging of the appeal herein. The appeal was lodged on December 4, 2020.

8. The 1st respondent further submit that the courts have severally held and it is now trite law that the National Environmental Tribunal (NET) cannot extend the 60 day period set in statute at section 129 (1). It can only extend the filing period for appeals lodged under section 129 (2). They cite the cases of DG NEMA and Kenya Council of Catholic Bishops, NET 202 of 2017 and Simba Corporation Ltd v Avic International and another, ELC No 100 of 2015 in support of their case.

9. In conclusion, the 1st respondent submits that the appellant has not only breached the provisions of the National Environment Tribunal Procedure Rules, 2003 but has also completely disregarded section 129 of the Environmental Management and Coordination Act dealing with appeals. On this basis, the 1st respondent submits that the appeal should be dismissed.

10. The 2nd respondent filed its submissions dated March 18, 2021 on March 19, 2021. The submissions were in support of the 1st respondent’s preliminary objection. It submits that there is no appeal before this honourable tribunal and that the purported one is a nullity and of no legal consequences.

11. The 2nd respondent contends that the appeal invokes Section 129 (1) (a) of the Environmental Management and Co-ordination ActNo.8 of 1999.

12. The 2nd respondent further contends that the appeal was lodged before this Tribunal on December 4, 2020 which is eighteen (18) months after the decision was made and also that this honourable tribunal cannot extend the sixty (60) day period set in statute as provided for under section 129 (1) (a) of the Environmental Management and Co-ordination Act No. 8 of 1999.

13. The 2nd respondent contends that section 129 (1) envisages that the appeals which the Tribunal can entertain ought to be filed within 60 days from the date NEMA makes its decision.

14. The 2nd respondent further submits that the present appeal is a clear abuse of judicial process and ought to be dismissed with costs to the respondents. In addition, the 2nd respondent argues that this is primarily a preliminary objection raised purely on a point of law and would require the Tribunal to determine the question of law without resort to contested facts. The 2nd respondent cited the case ofDavid Awori & 2 others on behalf of Gigiri Village Association v Director General (NEMA) & 2 others [2018]eKLR in support of their case.

Appellant’s Submissions 15. The appellant filed its submissions dated March 29, 2021 on April 1, 2021 in opposition to the 1st respondent’s preliminary objection dated February 25, 2021.

16. The appellant submits that it did not participate in the EIA process conducted by the 1st respondent leading to the approval of the 2nd respondent’s stone crusher. The appellant became aware of the 2nd respondent’s activities on the adjacent land after the latter commissioned a crushing plant thereon on the October 30, 2020.

17. The appellant contends that at the time of filing the appeal on December 4, 2020, the 1st respondent had neither served it nor communicated to it the decision to license the project. The appellant only became aware of the licence after the same was filed by the 2nd respondent in its response to the grounds of appeal dated December 18, 2020.

18. The appellant argues that it did not apply for a licence in this matter or participate in the process towards the issuing of the licence.

19. The appellant extensively relied on the cases of Republic v National Environment Tribunal & 2 othersExparteAbdulhafidh Sheikh Ahmed Zubeidi(2013) eKLR andSimba Corporation Ltd v Director General, NEMA & ano(2017) eKLR. In Simba Corporation Limited v The Director General, National Environment Management Authority and Anor(2017) eKLR it was decided that to determine whether or not an appeal is time barred, the Tribunal would have to look at the evidence confirming the date when the disputed decision was given or served upon the appellant and that a substantive motion supported with an affidavit would be more efficacious.

20. While relying on the above cited cases, the appellant submits that it gained knowledge of the decision by the 1st respondent after receipt of service of the response to grounds of appeal dated December 18, 2020 and filed in court on January 6, 2021.

21. We have noted confusion in the order of listing parties in the pleadings filed by the parties. In some pleadings Gatundia Concrete Limited is listed as the 1st respondent while in others it is listed as the 2nd respondent. In other pleadings the National Environment Management Authority is listed as the 1st respondent while in others it is listed as the 2nd respondent. For the purpose of this ruling, the National Environment Management Authority is the 1st respondent while Gatundia Concrete Limited is the 2nd respondent.

Issues For Determination 22. Having considered the 1st respondent’s notice of preliminary objection dated February 25, 2021 and filed on even date, the 1st respondent’s submissions dated 1st March 2021 and filed on the even date, the 2nd respondent’s submissions dated March 18, 2021 and filed on 19th March 2021 and the appellants’ submissions dated March 29, 2021 and filed on 1st April 2021, the tribunal has identified the following issues as arising from the preliminary objection:a.Whether the appeal is time barred;b.Whether the preliminary objection is properly taken; andc.What orders should the Tribunal make?

A. Whether the Appeal is Time Barred

23. The legal framework on appeals to the National Environment Tribunal is set out under section 129 of theEnvironmental Management and Co-ordination Act (EMCA), No 8 of 1999. section 129 (1) of the Act stipulates that: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 person’s 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 be paid as a fee under this Act or its regulations thereunder;e.The imposition against the person of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations,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 theTribunal.Further, section 129 (2) stipulates that: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.

24. The National Environmental Tribunal Procedure Rules, 2003 has further buttressed the legal framework on appeals to the Tribunal. Rule 4 (1) thereof stipulates that:‘An appeal to the tribunal shall be made by written notice and where the tribunal has approved a form of notice for the purpose, in the form so approved.’Rule 4 (2) further states that:‘The appellant shall send or deliver six copies of the notice of appeal to the Tribunal so as to reach it not later than sixty days after the date on which the disputed decision was given or served upon him.’

25. The above provisions clearly indicate that an appeal to the tribunal is supposed to be lodged within sixty (60) days of the decision that is subject of the appeal.

26. The appellant herein filed a notice of appeal dated December 3, 2020 on December 4, 2020. It seeks to challenge issuance of EIA license No NEMA/EIA/PSL/8133 which was issued on July 1, 2019. The appellant contends that the appeal is filed pursuant to section 126 (2) and 129(2) of theEnvironmental Management and Coordination Act and not section 129 (1) as stated by the respondents.

27. The question on the difference between appeals brought under section 129 (1) and 129 (2) of the Environmental Management and Co-ordination Act has been previously determined by this Tribunal. In Tribunal Appeal no. 005 of 2018Prof. Albert Mumma v Director General NEMA & 2 others, this Tribunal decided that:-‘With the 2015 amendment (to the EMCA), all appeals either challenging the grant or refusal of a license now fall under section 129 (1). Section 129 (2) is left to decisions made by the Director General, the Committees of the Authority or its agents under the Act’

28. This Tribunal in Tribunal Appeal No 12 of 2017, David Awori & 2 others v Director General NEMA & 2 others, observed as follows in respect of the difference between appeals brought under sections 129 (1) and 129 (2) of the EMCA:-‘The substance of the appellants appeal is the decision by the National Environment Management Authority (NEMA) to grant NEMA License No 0034241 to the 2nd respondent. It falls within the ambit of section 129 (1) (a) of EMCAwhich allows any person who is aggrieved by 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 the Act or regulations made thereunder to appeal against such a decision within sixty days of the decision being made….any appeal that seeks to challenge or touch on matters surrounding, inter alia, the grant or refusal to grant a license falls within the ambit of section 129 (1). Section 129 (2) covers appeals against acts or omissions of the Director General or the Committee of the Authority or its agents on matters outside the issue of license.’

29. With the aid of the above decisions, the Tribunal finds that the appeal herein falls under section 129 (1) ofEMCA since it challenges issuance of EIA License No NEMA/EIA/PSL/7383 by the 2nd respondent to the 1st respondent. The limitation period for appeals under section 129 (1) of EMCAis sixty (60) days as stipulated by the Act. The Tribunal shall proceed and determine whether the appellants appeal has been filed within the stipulated timeframe.

30. EIA License NoNEMA/EIA/PSL/8133 was issued on 1st July 2019. The appellants filed its notice of appeal on December 4, 2020. The Tribunal is guided by Tribunal Appeal No 006 of 2019, Runda Association v National Environmental Management Authority (NEMA) & 3otherswhere it decided as follows with regards to computation of the 60 days period of filing appeals under section 129 (1) of EMCA:'It is now trite law following a number of cases determined up to the High Court that where an appeal is brought under section 129(1) a party aggrieved by the grant or rejection of an application for licence must do so within 60 days from the date of the occurrence of the event ie. The date of the issuance or the rejection of the licence. It is also now well established that the timeline of 60 days in section 129(1) of EMCA cannot be extended.’The Tribunal further decided that:‘It is therefore the Tribunals finding that the appeal filed by the appellant is one falling under section 129(1) of EMCA. Having also found that the 60 days’ count of the time limit ran from April 6, 2018 to June 5, 2018, the appeal filed on March 15, 2019 was already clearly out of time. The time limit of 60 days runs from the date of issuance of the licence on April 6, 2018 and in the instant case was filed outside the statutory period.’

31. In the present case, the 60 days period envisaged under section 129 (1) ofEMCA and rule 4 (2) of the National Environmental Tribunal Procedure Rules, 2003 started running on 1st July 2019 when EIA License NEMA/EIA/PSL/8133 was issued to the 2nd respondent until August 30, 2019. The Tribunal thus finds that the appeal filed on December 4, 2020 is filed out of the stipulated 60 days period.

32. The appellant vide its submissions dated March 29, 2021 contends that time started running when the decision on issuance of the EIALicence No NEMA/EIA/PSL/8133 was filed by the 2nd respondent in its response to the grounds of appeal dated 18th December 2020. However, this position has no legal basis in light of the express provision of Section 129 (2) of EMCA and the Tribunal’s decision in Runda Association v National Environmental Management Authority (NEMA) & 3 others (Supra).

33. The appellant urges the Tribunal to allow the appeal to proceed to its logical conclusion. Indeed, the National Environmental Tribunal Procedure Rules provide for instances where the Tribunal may allow extension of time to do certain acts. Rule 7 thereof provides as follows:‘The Tribunal may for good reason shown, on application, extend the time appointed by these Rules (not being the time limited by the Act) for doing any act or taking any proceedings, and may do so upon such terms and conditions, if any, as appear to it just and expedient.’

34. However, the provision is not applicable to appeals under section 129 (1) of theEMCA since the time within which to file such appeals is limited by the Act to sixty days from the date of the act or omission being appealed against. This was observed in ELC No 100 of 2015: Simba Corporation Limited vs Avic International & another, where the Environment and Land Court decided that:“There is no doubt that section 129 (1) of EMCA provides a limitation period of 60 days from the date of occurrence of the impugned event, within which the dissatisfied party is to present an appeal to NET. The framework in section 129 (1) does not provide for extension of the 60 days’ period. In the same vein, rule 7 of the NET Procedure Rules prohibits extension of time in a scenario where the limitation period is expressly limited by EMCA. The legal ramifications of the framework in Rule 7 of NETProcedure Rules is that the extension contemplated under Rule 7 does not relate to appeals falling under section 129 (1) because limitation period for appeals falling under section 129 (1) is limited by the Act. The extension contemplated in rule 7 of NET Procedure Rules therefore relates only to appeals falling under section 129(2) because these are the only appeals in respect of which the Act does not set a limitation period.”

35. The Tribunal’s hands are tied pursuant to the above rule and it cannot therefore extend time beyond the 60 days envisaged under section 129 (1) of EMCA.

B. Whether the preliminary objection is properly taken 36. The preliminary objection is premised under section 129 (1) of the EMCA. This preliminary objection does not require an interrogation of evidence from the parties. It is not contested that the decision which is the subject matter of this appeal was made on July 1, 2019. Therefore, the 1st respondent’s preliminary objection is properly taken.

C. What Orders Should the Honourable Tribunal make? 37. For the above reasons, the Tribunal makes the following orders:a.The 1st respondent’s preliminary objection is hereby allowed;b.The appeal is hereby dismissed; andc.Each party to bear their own costs.Parties’ attention is drawn to provisions of section 130 of the Environmental Management and Co-Ordination Act.

DATED AT NAIROBI THIS 26THDAY OF SEPTEMBER 2022MOHAMMED S BALALA…………………...………………………CHAIRPERSONCHRISTINE KIPSANG………………………….…………………….MEMBERBAHATI MWAMUYE……………………………..…………………..MEMBERWAITHAKA NGARUIYA…………………….……………………....MEMBERKARIUKI MUIGUA…………………………..………………………..MEMBER