National Environmental Tribunal v Overlook Management Limited & 5 others [2019] KECA 1005 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that any Kenyan can appeal NEMA environmental decisions to the Tribunal without owning the affected land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Malindi Green Town Movement and Malindi South Residents Association had locus standi to lodge an appeal to the National Environmental Tribunal against NEMA's approval of the EIA
- 2.Whether the expanded locus standi in environmental matters under the Environmental Management and Coordination Act extends to the Tribunal and not only to the High Court
- 3.Whether NEMA's letter of 1st December 2005 approving the project constituted a decision amenable to appeal under section 129(2) of the Act
Key legal issues
#Locus standi of non-participants to appeal to the National Environmental Tribunal
The 4th and 5th respondents had the requisite standing to appeal NEMA's approval of the villas
EMCA was enacted to vacate the strict common law requirements of locus standi that had hampered environmental litigation. Section 129(2) allows any person aggrieved by a decision of NEMA, its Director-General or committees to appeal to the Tribunal. The 4th respondent was a community-based organisation focused on Malindi and the 5th the residents' association; they acted in public interest. The High Court erred in treating them as strangers or busybodies.
Reconciliation of conflicting High Court decisions on section 129 of EMCA
Section 129(1)(a)-(e) confers an appeal as of right on parties aggrieved by the listed events; section 129(2) confers a separate route for parties aggrieved by any decision of NEMA, its Director-General or committees
The court noted conflicting High Court authorities (Emukule J; OlKeju Ronkai; Odunga J; Gitumbi J) on whether the Tribunal's jurisdiction was limited to section 129(1). It held that where a party does not qualify under subsection (1) but is aggrieved by a decision of the Authority, it may appeal under subsection (2) without showing any right or interest in the property or land, consistent with the Act's expanded standing.
Nature of NEMA's approval as an appealable decision
NEMA's communication of 1st December 2005 approving the project was a decision subject to appeal notwithstanding that the EIA licence per se had not been furnished
The appellants argued that no licence had been issued and that no decision existed capable of appeal. The court held that NEMA had in fact made a decision approving the proposed project, which was communicated to the developers, and that such a decision falls within section 129(2). The appeal was therefore properly before the Tribunal.
Safeguards against abuse of public interest litigation
Public interest litigation under the Act must not be frivolous or vexatious or an abuse of process
The court acknowledged that public interest litigation risks abuse and exploitation, and directed that courts enforce the proviso in section 3(4) of the Act. However, this did not detract from the expanded standing conferred by the Act, which any person, group or association may invoke on their own behalf or in the public interest.
Legal principles established
#- A party aggrieved by a decision of NEMA, its Director-General or committees may appeal to the Tribunal under section 129(2) of EMCA without demonstrating a right or interest in the affected property, environment or land
- Expanded locus standi in environmental matters under EMCA extends to every Kenyan and applies to appeals before the Tribunal, not just proceedings in the High Court
- Approval of an EIA by NEMA is a decision amenable to appeal under section 129(2) even where the licence per se has not been issued
Court orders
#- 1.The ruling and order of the High Court in Miscellaneous Civil Application No. 391 of 2006 made on 9th May 2008 set aside
- 2.In lieu thereof, substitution of an order dismissing the 1st and 2nd respondents' application dated 24th July 2006
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. No. 391 of 2006
- Jurisdiction invoked
- First appeal/judicial review appeal under the Environmental Management and Coordination Act, sections 3, 111 and 129 (memorandum of appeal dated 17th January 2011)
Relief refused
#Costs to any party
The court made no order as to costs
Costs
There shall be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The ruling and order of the High Court, Miscellaneous Civil Application number 391 of 2006 made on 9th May, 2008 is accordingly set aside. In lieu thereof, we substitute an order dismissing the 1 st and 2nd respondents’’ application dated 24th July 2006. There shall be no order as to costs.
We take the view that such a party does not have to demonstrate that he has a right or interest in the property, environment or land alleged to have been or likely to be harmed. This is in line with the expanded locus standi in the Act and gives effect to its legislative purpose.
No doubt expanded locus standi in environmental matters extends to every Kenyan.
The Act heralded Parliament’s intention to give litigants on environmental matters necessary standing to institute an action against environmental violators even if such a litigant may not have been directly or personally affected by the actions or omissions of such violators but which may negatively impact or harm the environment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onunga v African Gas and Oil Company Ltd & 4 others (Land Case Petition E013 of 2026) [2026] KEELC 5072 (KLR)[2026] KEELC 5072 (KLR)30 Jul 2026applied
- One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others (Civil Appeal E326 of 2021) [2026] KECA 1380 (KLR)[2026] KECA 1380 (KLR)10 Jul 2026applied
- County Government of Wajir v Salat & 2 others (Environment and Land Appeal 1 of 2024) [2025] KEELC 8104 (KLR)[2025] KEELC 8104 (KLR)13 Nov 2025applied
- P J Dave Flowers Ltd v Kennedy Sanane Mabonga [2020] KEELRC 983 (KLR)[2020] KEELRC 983 (KLR)29 May 2020
Cite this brief
#Cite this brief
Caselaw, "National Environmental Tribunal v Overlook Management Limited & 5 others [2019] KECA 1005 (KLR)", Case Analysis (2019). Civil Appeal No. 9 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1005/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.