1.Before this Tribunal is the 1st Respondent’s Notice of Preliminary Objection dated 9th September, 2021.
2.The 1st Respondent contends that the present Appeal, which was initiated by the Appellant vide a Notice of Appeal dated 12th July, 2021 challenges the issuance by the 1st Respondent to the 2nd and 3rd Respondent of the Environmental Impact Assessment License NEMA NRB/PR/5/1/41.169 dated 20th May, 2020 with respect to development of a proposed maisonette house development on LR No 7158/447 Kyuna Estate Area, Westlands Sub-County, Nairobi County. Accordingly, the 1st Respondent contend that the present Appeal is time-barred for having been filed outside of the sixty-day period for challenging the grant of an Environmental Impact Assessment License that is provided under Section 129(1) of the Environmental Management and Co-ordination Act, 1999 (as amended in 2015).
3.The Appellant has attempted to move his Appeal away from Section 129(1) of EMCA and situate it within Section 129(2) of the Act, as read together with Sections 58, 64, 125 and 126 of the Act. The reliefs sought in the Notice of Appeal dated 12th July, 2021 call for the cancellation of the license and that the Hon Tribunal to issue an order declaring the Respondents have violated the Appellant’s rights to property, clean & healthy environment & fair administrative action . However, we are convinced that the substance of the Appellant’s grievance as articulated in Paragraphs 14-26 of the Appellant’s Written Submissions dated 27th October, 2021 as well as Part 3 of the Notice of Appeal which is titled “Decision/Action Being Appealed Against” and runs from Paragraphs 3.1 to 3.3 is against the issuance of the Environmental Impact Assessment License No. NEMA NRB/PR/5/1/41.169 and the conditions therein.
4.Section 129 of EMCA provides as follows:
5.We also find that there is no way that this Tribunal could determine the Appeal herein without deeply interrogating the process that led to the issuance of the impugned EIA License, the decision to grant that License, and the conditions contained therein. These are all aspects that squarely fall within the province of Section 129(1) of EMCA and not Section 129(2) of the Act
6.Guided and bound by the Superior Courts above us, and also guided by the plain reading of the statute as amended and applicable to the material times of the present Appeal, it is clear to us that the present Appeal ought to have been filed within sixty days after the issuance of the impugned license. That license, Environmental Impact Assessment License NEMA NRB/PR/5/1/41.169 was issued on 20th May, 2020 while the instant Appeal was filed on 12th July, 2021; four hundred and eighteen days after the grant of the license and thus three hundred and fifty-eight days out of time.
7.We find support for our view from the dicta of the Supreme Court of Kenya in Samuel Kamau Macharia vs. Kenya Commercial Bank & 2 Others, Civil Appl. No. 2 of 2011, where the apex Court observed that:
8.In view of the applicable dates and the fact that this Appeal falls Under Section 129 (1) of EMCA, the Tribunal finds that the instant Appeal dated and filed on 12th July, 2021 against a license issued on 20th May, 2020 was filed four hundred and eighteen (418) days after the grant of the impugned license and thus was three hundred and fifty-eight (358) days out-of-time. This Tribunal does not have the statutory power to extend or enlarge time for such Appeals.
9.The Appeal dated 12th July, 2021 and filed on 12th July, 2021 is struck out for non-compliance with Section 129 (1) of EMCA and the consequent want of jurisdiction on the part of the Tribunal.
10.The Tribunal makes no orders as to costs.