1.Coming up before us for determination is a Notice of preliminary objection dated March 10, 2023 premised on the following grounds;a.That this Tribunal lacks jurisdiction to hear and determine the matters raised in this Appeal and the Application in view of the provisions ofsection 129 of the Environment Management and Coordination Act No. 8 of 1999 and section 31 of the Sustainable Waste Management Act No. 31 of 2022;b.The 1st respondent has not made any decision to warrant any action under section 129 of EMCA or section 31 of the Sustainable Waste Management Act.c.That in so far as there is no decision by the Authority on the complaint by the Appellant, there is no legal basis for the appeal and the and the application, and the Honourable Tribunal therefore lacks jurisdiction to entertain this appeal.d.The Appeal and the Application filed herein is thus bad in law, defective, an abuse of the Tribunal process and the same ought to be dismissed with costs.
2.A brief background of the case is that theappellant herein instituted this Appeal vide the Notice of Appeal dated February 20, 2023, and filed on February 21, 2023, on the grounds of non-enforcement and non-compliance of the recommendations of the National Environment Complaints Committee (NECC) in NEC No. 17 of 2022. These recommendations included closure and relocation of the NoonKopir Dumpsite as a result of poor waste management resulting to environmental degradation of the said dumpsite located in Kitengela, Kajiado County.
3.Theappellants, in addition to the Appeal, filed an application under Certificate of Urgency dated February 20, 2023seeking inter alia, injunctive orders on the dumping of waste and suspension of issuance of licences by the 1st Respondent to waste collectors, pending hearing and determination of the main Appeal.
4.The Tribunal, on March 2, 2023, issued a temporary order of injunction on further dumping along NoonKopir road and on the adjacent area pending determination of the application dated February 20, 2023 by the appellant. Subsequent to this, the 1st respondent filed its notice of preliminary objection dated March 10, 2023 subject to determination herein.
5.The 1st respondent, 2nd respondent and the appellant filed Written Submissions dated March 29, 2023, April 20, 2023 and April 10, 2023 respectively.
6.Having read the preliminary objections and the Written Submissions filed by the parties herein, the primary issue for determination is whether the notice of preliminary objection dated March 10, 2023has merit.
8.In view of the foregoing, this Tribunal shall seek to establish whether the grounds outlined in the Preliminary Objection herein, have meet the threshold set out in the aforementioned case.
10.Section 129 (1) provides as follows:May within sixty days after the occurrence of the event against which the person is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.”
11.Further, section 31 of the Sustainable Waste Management Act No. 31 of 2022 provides that “Any person or an entity aggrieved by—a.a refusal to grant a license under this Act;b.the imposition of any condition, limitation or restriction on a license granted under this Act;c.any fee payable under this Act; ord.the imposition of a restoration order in accordance with section 30, may, within sixty days of the occurrence of the event with which the person or entity is aggrieved, appeal to the National Environment Tribunal.”
12.With respect to the Appeal herein, the Tribunal notes that nothing has been placed before us in the form of a licence pursuant to section 31of the Sustainable Waste Management Act which issues herein fall under, or a license under section 129 (1) EMCA or decision made by the Director-General, the Authority or Committees of the Authority pursuant to section 129 (2) EMCA, in which the Appellant is aggrieved by. The gravamen of the Appellant is that the 1st and 2nd respondents have failed to comply with the recommendations of NECC.
13.Further, in their submissions, the Appellant submitted that the jurisdiction of this Tribunal is of a “general purposive” nature which is “far more wide and unfettered in relation to issues falling within the Act as provided in section 126”. This is an incorrect interpretation of the law. Section 126 provides for proceedings of this Tribunal and Section 129 is where it obtains its jurisdiction. Additionally, the jurisdiction of the Tribunal is obtained in various other Acts of Parliament including section 31 of the Sustainable Waste Management Act.
14.This is to say that the jurisdiction of the Tribunal is very limited to matters falling under the specific provisions of statutes providing it with the said jurisdiction. Hearing and determining this appeal will be arrogating ourselves jurisdiction which we do not have. As was observed in the Supreme Court case of Samuel Kamau Macharia v Kenya Commercial Bank & 2 others, Civil Appl No 2 of 2011
15.Accordingly, it is our finding that the Preliminary Objection succeeds to the extent that this Tribunal lacks jurisdiction to hear and determine the matter. We shall down our tools at this point.
16.The Appeal dated February 20, 2023is hereby struck out for lack of jurisdiction.
17.Each party shall bear their own costs.