Republic v National Environmental Tribunal; Ex parte Kiliavo Fresh Limited; Big Life Foundation & 3 others (Interested Parties) [2021] KEELC 1993 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the leave granted should operate as a stay of the impugned decision
Key legal issues
#Whether the court has jurisdiction to entertain judicial review against a NET decision
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
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.
Whether the Applicant raised a prima facie case warranting leave and stay
Yes; the dismissal of the appeal without hearing after declining an adjournment showed an apparent infringement of rights
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.
Whether exhaustion of statutory appeal remedies barred the judicial review application
Rejected at the leave stage; the court found the Applicant entitled to leave despite the claimed appeal route
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.
Legal principles established
#- 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
#- 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.The leave granted shall operate as a stay of the decision granted on 26th April, 2021
- 3.Leave of 21 days granted to file and serve the substantive motion on Judicial Review orders of Certiorari and Prohibition
- 4.Costs in the cause
The bench
#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
#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
Costs
Costs will be in the cause.
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.
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.
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.
I grant the Applicant leave of 21 days to file and serve the substantive motion on Judicial Review orders of Certiorari and Prohibition.
Costs will be in the cause.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.