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ELCPartially AllowedNot stated in the judgment text provided· [2017] KEELC 310 (KLR)

Simba Corporation Limited v Director General, National Environment Management Authority (NEMA) & another [2017] KEELC 310 (KLR)

Environment and Land Court
20 December 2017
3,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed a 60-day deadline for NEMA environmental appeals, but it only starts once you actually receive notice of the decision.

What this practically means

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Executive summary

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Simba Corporation Limited, proprietor of LR 209/73/5 in Westlands (the Kempinski Villa Rosa Hotel site), appealed to the Environment and Land Court against a ruling of the National Environmental Tribunal delivered on 18 December 2015. The Tribunal had upheld a preliminary objection by AVIC International Real Estate (EA) Limited and dismissed Simba's appeal (NET 158 of 2015) against NEMA's conditional EIA licence for AVIC's neighbouring multi-tower development, on the ground that Simba's appeal filed on 15 September 2015 was out of time. On appeal, Eboso J framed four issues concerning limitation for appeals under Section 129(2) of EMCA. The court held that Rule 4(2) of the NET Procedure Rules supplies a 60-day limitation period for Section 129(2) appeals, computed from the date the disputed decision is given to or served upon the appellant, and that NEMA bears an implied obligation to notify the public of such decisions. Rule 7 extensions apply only to Section 129(2) appeals, since Section 129(1) limitation is set by the Act itself. The court found the Tribunal erred by never determining when time began or lapsed, and observed that limitation under Rule 4(2) required evidence, making a bare preliminary objection a doubtful disposal mechanism; a substantive motion supported by affidavit would be efficacious. The court allowed the appeal, set aside the Tribunal's ruling, directed that NET 158/2015 be heard and determined on merit, ordered each party to bear its own costs owing to the unique questions raised, and directed the Registrar to supply the judgment to relevant offices, advising the Attorney General and others to consider a prescriptive framework for NEMA's public notification of decisions.

Key legal issues

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01

Whether a limitation period exists for appeals to NET under Section 129(2) of EMCA

Holding

Yes - Rule 4(2) of the NET Procedure Rules supplies a 60-day limitation period for Section 129(2) appeals, reckoned from the date the disputed decision is given to or served upon the appellant.

Reasoning

Section 129(1) of EMCA fixes a 60-day period only for appeals by parties to NEMA decisions. Section 129(2) appeals have no statutory limitation, but Rules 2, 4(2) and 7 of the NET Procedure Rules together imply a 60-day period running from service or notification of the decision. NEMA bears an implied obligation to notify the public of such decisions.

p. 5
02

When time starts to run and on whom the evidential burden lies

Holding

Time runs only from when the decision is given to or served upon the appellant; the respondent before NET had to prove service more than 60 days before filing.

Reasoning

The words 'given to or served upon' in Rule 4(2) are unambiguous. Notification may take various forms including Gazette publication, newspaper notice or personal service. Before the Tribunal it was incumbent on the respondent to place evidence showing the impugned decision was given to or served on the appellant more than 60 days before the appeal was filed. The Tribunal never made such a finding.

p. 6
03

Whether the Tribunal rightly upheld the preliminary objection and dismissed the appeal as time-barred

Holding

No. The Tribunal failed to determine when time started and lapsed, and limitation under Rule 4(2) required evidence, not a bare preliminary objection.

Reasoning

A proper limitation determination must identify the date time began and expired; the Tribunal's ruling did neither. Whether the decision was served or notified calls for adducement of evidence, so a substantive motion supported by affidavit, not a preliminary objection, was the appropriate vehicle. The dismissal was therefore unsustainable and was set aside.

p. 6

Legal principles established

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  • Rule 4(2) of the NET Procedure Rules provides the 60-day limitation period for Section 129(2) EMCA appeals, computed from when the disputed decision is given to or served upon the appellant.
  • Time under Rule 4(2) and Rule 7 of the NET Procedure Rules starts to run only after the disputed decision is given to or served upon the appellant.
  • NEMA has an implied obligation to notify the public of decisions under Section 129 of EMCA, by Gazette notice, newspaper notice or personal service.
  • Rule 7 extension of time applies only to Section 129(2) appeals, not Section 129(1) appeals whose limitation is set by the Act.
  • A bare preliminary objection is an doubtful vehicle for disposing of an appeal on limitation grounds under Rule 4(2), which requires adducement of evidence.

Court orders

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  1. 1.The ruling of the National Environmental Tribunal delivered and given on 18/12/2015 is hereby set aside.
  2. 2.The Appellant's Appeal filed before the National Environmental Tribunal in NET 158/2015 shall be heard and determined on merit.
  3. 3.Parties to this Appeal shall bear their respective costs.
  4. 4.The Registrar of this court shall cause copies of this Judgment to be supplied to the relevant offices for perusal, should it be deemed necessary.
On appeal from
National Environmental Tribunal
NET 158 of 2015
Jurisdiction invoked
Appeal from the National Environmental Tribunal under Part XII of the Environmental Management and Co-ordination Act (Section 129 framework)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simba Corporation Limited v Director General, National Environment Management Authority (NEMA) & another [2017] KEELC 310 (KLR)", Case Analysis (2017). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/310/eng@2017-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.