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ELCPartially AllowedJR No. E011 of 2021 (Chamber Summons Application dated 10th May, 2021)

Republic v National Environmental Tribunal; Ex parte Kiliavo Fresh Limited; Big Life Foundation & 3 others (Interested Parties) [2021] KEELC 1993 (KLR)

Environment and Land Court
16 September 2021
3,694 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 allowed a business to challenge the National Environment Tribunal after it dismissed an appeal without hearing the company.

What this practically means

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Executive summary

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The Applicant, through its Director Harji Mavji Kerai, sought leave by Chamber Summons dated 10th May, 2021 to apply for orders of Certiorari and Prohibition quashing the National Environment Tribunal's decision of 26th April, 2021 summarily dismissing NET Appeal No. 38 of 2020 for want of prosecution, together with stay and restraint against publication. The appeal had been lodged against NEMA's cancellation of the Applicant's EIA licence. The Applicant contended the dismissal violated Rule 25 of the NET Procedure Rules, Articles 47, 48 and 50 of the Constitution, and the Fair Administrative Action Act, as its adjournment request was declined, it was not supplied with the decision, and no hearing was granted. The Respondent raised a preliminary objection claiming immunity under Sections 130 and 133 of EMCA and that an appeal to the High Court, not judicial review, was the proper route. The 1st Interested Party argued failure to exhaust statutory remedies, that adjournment is discretionary, and that the publication restraint would infringe freedom of expression. The court framed one issue: whether leave should issue and whether it should operate as stay. Relying on Articles 47 and 50 and authorities including Mrao and Taib A. Taib, the court held it had jurisdiction to interrogate the Tribunal's process, found an apparent infringement of rights in the dismissal without hearing, allowed the application, granted leave to file the substantive motion within 21 days, directed that the leave operate as stay, and ordered costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant is entitled to leave to institute judicial review proceedings of Certiorari and Prohibition against the Respondent's decision dated 26th April, 2021
  2. 2.Whether the leave granted should operate as a stay of the impugned decision

Key legal issues

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01

Whether the court has jurisdiction to entertain judicial review against a NET decision

Holding

Yes; the court found jurisdiction to challenge both the decision and the procedure, rejecting the immunity argument based on Sections 130 and 133 of EMCA

Reasoning

Relying on Articles 47 and 50 of the Constitution, the court held that rights to fair hearing and fair administrative action must be respected, so NET cannot claim immunity from judicial review of its process. The court disagreed with the Respondent and 1st Interested Party that the applicant was confined to an appeal under Sections 130 and 133 of EMCA.

p. 4
02

Whether the Applicant raised a prima facie case warranting leave and stay

Holding

Yes; the dismissal of the appeal without hearing after declining an adjournment showed an apparent infringement of rights

Reasoning

Applying the Mrao definition of a prima facie case and Taib A. Taib on stay in judicial review, the court found that since the Tribunal declined the adjournment and dismissed the appeal without hearing the Applicant, there was an apparent infringement requiring interrogation, justifying leave and leave operating as stay.

p. 4
03

Whether exhaustion of statutory appeal remedies barred the judicial review application

Holding

Rejected at the leave stage; the court found the Applicant entitled to leave despite the claimed appeal route

Reasoning

The Respondent and 1st Interested Party argued the Applicant should have appealed to the High Court under EMCA. The court, invoking Articles 47 and 50 and the absence of controverted evidence that the Applicant was not furnished with the decision in time to appeal, found the judicial review route proper for challenging the process.

p. 3

Legal principles established

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  • A court has jurisdiction to review the decision of the National Environment Tribunal and the procedure adhered to in making it, notwithstanding statutory appeal mechanisms under EMCA
  • Right to be heard and fair administrative action are constitutional rights that must be respected by quasi-judicial bodies
  • Judicial review concerns the decision-making process, not the merits of the decision

Court orders

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  1. 1.Leave granted to the Applicant to commence an application for judicial review orders of Certiorari and Prohibition challenging the Respondent's decision dated 26th April, 2021
  2. 2.The leave granted shall operate as a stay of the decision granted on 26th April, 2021
  3. 3.Leave of 21 days granted to file and serve the substantive motion on Judicial Review orders of Certiorari and Prohibition
  4. 4.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Order 53 Rule 1(1) & (2) of the Civil Procedure Rules; Sections 2, 4, 6, 7 of the Fair Administrative Action Act, 2015; Section 126(5) of EMCA; Articles 47 and 50 of the Constitution

Relief refused

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Restraint on publication of claims/articles regarding the dispute (prayer No. 5)

Argued to infringe freedom of expression and not specific; not granted in the final orders

p. 2

Costs

Costs will be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I hence beg to disagree with the Respondent and the 1 st Interested Party on this point. I opine that the Applicant is indeed entitled to leave to commence an application for Certiorari and Prohibition challenging the Respondent’s decision dated 26 th April, 2021.
p. 4Jurisdiction and grant of leave
It is my considered view that since the Tribunal declined to adjourn the matter and dismissed the Appeal without hearing the Applicant, there was indeed an apparent infringement of the Applicant’s rights which requires the Court’s interrogation before making a determination on the same.
p. 4Prima facie case and stay
I grant the Applicant leave of 21 days to file and serve the substantive motion on Judicial Review orders of Certiorari and Prohibition.
p. 4Final orders
Costs will be in the cause.
p. 4Costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v National Environmental Tribunal; Ex parte Kiliavo Fresh Limited; Big Life Foundation & 3 others (Interested Parties) [2021] KEELC 1993 (KLR)", Case Analysis (2021). JR No. E011 of 2021 (Chamber Summons Application dated 10th May, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1993/eng@2021-09-16

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