Masibo & 3 others (Suing as the Officials and Representatives of Migaa ACK Roads Residents Association) v Atlas Tower Group & 2 others (Environment and Land Civil Appeal E015 of 2025) [2026] KEELC 4108 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that appeals against EIA licences must be filed within 60 days, but shielded community litigants from paying costs.
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 National Environment Tribunal misdirected itself in law and in fact by classifying the Appellants' appeal under Section 129(1) instead of Section 129(2) of EMCA, and consequently finding the appeal to be time-barred
- 2.Whether the Tribunal violated the doctrine of stare decisis by allegedly disregarding binding precedents from superior courts regarding locus standi and the interpretation of Section 129 of the EMCA
- 3.Whether the Tribunal erred in its exercise of judicial discretion by condemning the Appellants to pay the costs of the proceedings, in light of their assertion that they were engaged in public interest litigation
- 4.What are the appropriate final orders to be issued by this Court, and who should bear the costs of the present appeal
Key legal issues
#Applicability of Section 129(1) versus Section 129(2) of EMCA to a challenge against an EIA Licence
The Tribunal correctly classified the appeal under Section 129(1); lack of participation in public participation does not shift the appeal to Section 129(2), and the 60-day limitation ran from the date of issuance of the licence
The Court held that Section 129(2) is residual, applying only to decisions 'not covered under subsection (1)'. The predominant complaint was a challenge to NEMA's decision to issue an EIA Licence. Allegations of inadequate public participation were grounds of attack on the licence's validity, not a different species of dispute. No provision of EMCA creates separate appeal streams based on participation. The Supreme Court's guidance in Albert Chaurembo Mumba binds all courts under Article 163(7).
Whether the Tribunal violated stare decisis
No violation; the Tribunal followed binding Supreme Court precedent under Article 163(7)
The Tribunal expressly considered jurisdiction and adopted the Supreme Court's interpretation of Section 129 in Albert Chaurembo Mumba. Where coordinate-jurisdiction decisions conflict with a Supreme Court pronouncement, the latter prevails. Having found the appeal out of time, the Tribunal also lacked jurisdiction to delve into the merits of the public participation complaints.
Whether the award of costs against the Appellants was a proper exercise of discretion
No; the Tribunal failed to sufficiently consider the public interest dimension, and its costs order was set aside
The Appellants are community representatives invoking the Article 42 right to a clean and healthy environment enforceable under Article 70. Their litigation was neither frivolous, vexatious nor in bad faith. Following the public-interest-litigation principle in Harun Mwau (approved in Amoni Thomas Amfry), costs should not deter litigants advancing legitimate public interest without private gain. The Tribunal's discretion was therefore unjustly exercised.
Legal principles established
#- Section 129(2) of EMCA applies only to decisions not covered under Section 129(1); a party aggrieved by the grant of an EIA Licence must appeal under Section 129(1) within sixty days regardless of whether they participated in the licensing process
- Once the statutory limitation period under Section 129(1) lapses, the National Environment Tribunal is divested of jurisdiction to entertain the appeal or examine the merits
- Costs should generally not be imposed on public interest environmental litigants who lose on procedural grounds, as such an award may chill public interest litigation
- An appellate court will interfere with the exercise of discretion where the lower court acted on wrong principles or arrived at a plainly unjust result
Court orders
#- 1.The Appellants' Appeal dated 28th March 2025 is dismissed in so far as it challenges the Tribunal's findings on jurisdiction and limitation
- 2.The Ruling and Order of the National Environment Tribunal delivered on 28th February 2025 in NET Appeal No. 23 of 2024 striking out the appeal for want of jurisdiction is hereby upheld
- 3.The order of the National Environment Tribunal condemning the Appellants to pay costs is hereby set aside
- 4.Each party shall bear its own costs before the National Environment Tribunal and in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- National Environment Tribunal
- NET Appeal No. 23 of 2024
- Jurisdiction invoked
- Article 163(7) of the Constitution (binding Supreme Court precedent); appellate jurisdiction over the National Environment Tribunal under EMCA
Relief refused
#Appeal against the Tribunal's classification of the appeal under Section 129(1) of EMCA and its finding that the appeal was time-barred
The predominant complaint was a challenge to the grant of an EIA Licence, governed by the 60-day limitation period in Section 129(1); the appeal was filed after that period expired, divesting the Tribunal of jurisdiction
Claim that the Tribunal violated the doctrine of stare decisis
The Tribunal followed the Supreme Court's decision in Albert Chaurembo Mumba, discharging its constitutional obligation under Article 163(7)
Costs
Each party shall bear its own costs before the National Environment Tribunal and in this appeal.
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 Court is unable to discern any provision within EMCA creating separate appellate pathways dependent upon whether an aggrieved party participated in the licensing process or not.
Once the limitation period lapsed, the Tribunal was divested of jurisdiction to entertain the matter.
The Appellants' Appeal dated 28th March 2025 is dismissed in so far as it challenges the Tribunal's findings on jurisdiction and limitation.
The order of the National Environment Tribunal condemning the Appellants to pay costs is hereby set aside.
Each party shall bear its own costs before the National Environment Tribunal and in this appeal.
Issues in the judgment
#Paragraph numbering is inconsistent/duplicated throughout the judgment (e.g. multiple paragraphs numbered 14 and 15 in sequence)
Date of delivery recited in the judgment body and memorandum as 2025, but the delivery clause is dated 2nd July 2026; the judgment body also states the statutory sixty-day period 'expired before the appeal was instituted in December 2024' while the appeal was filed 28th March 2025
The Respondents' submissions describe the Section 129(1) period as a '60-day limitation period' while the Appellants' framing of the Tribunal's ruling refers to the appeal being 'filed one month after the expiry of the statutory deadline'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masibo & 3 others (Suing as the Officials and Representatives of Migaa ACK Roads Residents Association) v Atlas Tower Group & 2 others (Environment and Land Civil Appeal E015 of 2025) [2026] KEELC 4108 (KLR)", Case Analysis (2026). Environment and Land Appeal arising from NET Appeal No. 23 of 2024 (Memorandum of Appeal dated 28th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4108/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.