THE KENYAN NATIONAL ENVIRONMENT TRIBUNAL.

The National Environment Tribunal is established under Section 125 of The Environment
Management and Co-ordination Act, No. 8 of 1999. Although the Act took effect in 2002, it
took three years to put the personnel and procedures in place before the Tribunal could
convene to hear a matter; thus the National Environment Tribunal (hereinafter referred to as
the NET) convened for the first time in 2005.1 The rationale for the creation of the
Environment tribunal is that prior to 1999, Kenya did not have a cohesive environmental law
system but instead a piecemeal coordination of policies and laws reminiscent of its colonial
past. The Environment Management and Co-ordination Act (hereinafter referred to as the
EMCA) sought to remedy this by providing for the establishment of an appropriate legal and
institutional framework for the management of the environment.2
STRUCTURE AND COMPOSITION
The NET consists of the following five members: 3
(a) a chairman nominated by the Judicial Service Commission and has qualified for
appointment as a judge of the High Court of Kenya;
(b) an advocate of the High Court of Kenya nominated by the Law Society of Kenya;
(c) a lawyer with professional qualifications in environmental law appointed by the Cabinet
Secretary; and
(d) two persons who have demonstrated exemplary academic competence in the field of
environmental management appointed by the Cabinet Secretary.
All appointments to the Tribunal shall be by name and by Gazette Notice issued by the
Cabinet Secretary4 and the members of the Tribunal shall be appointed at different times so
that the respective expiry dates of their terms of office shall fall at different times.5 The
Cabinet Secretary shall also appoint a public officer to be the Secretary to the Tribunal. 6
1

Donald Kaniaru, Kenyan Environmental Tribunal Convenes for First Time (2006)
<http://www.inece.org/newsletter/12/regional_africa.html> (last accessed 24 July 2013).
2
Amy Mehta, Commentary on the National Environmental Tribunal Procedure established in Kenya, May 18, 2011.
3
The Environment Management and Coordination act, Cap 387, Section 125 (1).
4
Ibid, Section 125 (2).
5
Ibid, Section 125(3).
6
Ibid, Section 135.

There shall be paid to the Chairman and members of the Tribunal such remuneration and
allowances as the Cabinet Secretary shall determine.7
The members of the Tribunal shall not be liable to be sued in a civil court for an act done or
omitted to be done or ordered to be done by them in the discharge of their duty, whether or
not within the limits of their jurisdiction, provided they, at the time, in good faith, believed
themselves to have jurisdiction to do or order the act complained of; and no offer of the
Tribunal or other person bound to execute the lawful warrants, orders or other process of the
Tribunal shall be liable to be sued in any court for the execution of a warrant, order or process
which he would have been bound to execute if within the jurisdiction of the Tribunal. 8 This
ensures that the Tribunal acts independently and without interference.
The office of a member of the Tribunal shall become vacant: 9
(a) at the expiration of three years from the date of his appointment;
(b) if he accepts any office the holding of which, if he were not a member of the Tribunal,
would make him ineligible for appointment to the office of a member of the Tribunal;
(c) if he is removed from membership of the Tribunal by the Cabinet Secretary for failure to
discharge the functions of his office (whether arising from infirmity of body or mind or from
any other cause) or for misbehavior; and
(d) if he resigns the office of member of the Tribunal.
The Ministry may establish such other Tribunals in any part of Kenya as it deems appropriate
and provisions that apply to the NET shall apply to them.10

Ibid, Section 134.

Ibid, Section 133.
9
Ibid, Section 125 (4).
10
Ibid, Section 136.
8

FUNCTIONS OF THE NATIONAL ENVIRONMENT TRIBUNAL

The Tribunal is an independent body charged with the following functions: 11
i)

To review administrative decisions and actions of the National Environment

Management Authority (NEMA) in matters of issue, cancellation, denial of
licence, amount of money to be paid under the EMCA.

ii)

To give legal opinion to the National Environment Management Authority in any

matter of a complex nature referred to it.

iii)

To settle disputes arising from The Forests Act such as appeals from persons
aggrieved by decisions made by the Forest Service.12

The National Environment and Management Authority is established under Section 7 of the
EMCA. Its main function is to exercise general supervision and co-ordination over all
matters relating to the environment and to be the principal instrument of the Government in
the implementation of all policies relating to the environment.13
The mission of NET is to provide accessibility to justice that is relatively inexpensive, while
its vision is to provide compliance with the law with the aim of achieving sustainable
environmnental management. The Tribunal makes its decisions independently in accordance
with the law and free from any political interference. It operates from an arms length from
departments which are likely to interfere with its impartiality.14
APPEALS TO THE TRIBUNAL
Any person may appeal to the National Environment Tribunal if aggrieved by any direction
given or decision made by NEMA regarding:

11

i)

a refusal to grant a licence or to the transfer of his licence;

ii)

the imposition of any condition or restriction on his licence ;

iii)

the revocation or suspension of his licence;

iv)

the amount of money he is required to pay as a fee; and

PK Mbote and Migai Akech, Kenya: Justice Sector and The Rule of Law, (African Minds, 2011) 172.
Cap 385 Sections 63 (2) and 69.
13
Supra note 3, section 9 (1).
14
Supra note 10, at 173.
12

v)

the imposition against him of an environmental restoration order or environmental

improvement.

Appeals are to be made within sixty days after the occurrence of the event against which he is
dissatisfied and in such manner as may be prescribed by the Tribunal.15
Unless otherwise expressly provided in the EMCA, where the Director-General, the Authority
or Committees of the Authority are empowered to make decisions, such decisions may be
subject to an appeal to the Tribunal in accordance with such procedures as may be established
by the Tribunal for that purpose.16
On receiving an appeal, NET may: 17
i)

inquire into the matter and make a decisions or give directions without reference to
any other party.

ii)

confirm, set aside or vary the order or decision in question;

iii)

exercise any of the powers which could have been exercised by NEMA in the
proceedings in connection with which the appeal is brought;

iv)

make such other order, including an order for costs, as it may deem just; or

v)

order the status quo to be maintained pending the determination of the appeal.

In The Southern Bypass Case,18 East Africa Wild Life Society (EAWLS), Africa Network for
Animal Network (ANAW) and Friends of Nairobi National Park (FONNAP) took NEMA and
the Kenya National Highways Authority (KeNHA) to court over the intention to construct a 5
km section of the Southern Bypass through the Nairobi National Park which is in breach of
the NEMA license for the highway which had certain conditions. The appellants argued that if
the respondents built the road according to their plans, they would violate condition 2.2 of the
Environment Impact Assessment (EIA) licence; that the road must not encroach on gazetted
National Parks. According to the appellants, NEMA had faulted because it issued a
conditional license but did nothing to ensure that the condition was being adhered to.

15

Supra note 3, Section 129.

Ibid, Section 129 (2).
17
Ibid, Section 129 (3).
18
Decided on May 30th 2013 by the NET.
16

The NET allowed the appeal and ordered that:

1) The EIA license issued by NEMA to the KeNHA be revoked for the section of the road
passing through the Nairobi National Park and construction of the by-pass be stopped unless
KeNHA fully complies with all legal requirements for acquisition of part of the Nairobi
National Park.
2) The construction of the by-pass in the contentious area be stopped until NEMA fully
complies with both substantive and procedural provisions of law in supervising any future
EIA processes for the area under contention in this appeal.
PROCEEDINGS OF THE TRIBUNAL19
(a) The Tribunal shall not be bound by the rules of evidence as set out in Evidence Act.
(b) The Tribunal shall, upon an appeal made to it in writing by any party or a referral made to
it by NEMA on any matter relating to the EMCA, inquire into the matter and make an award,
give directions, make orders or make decisions thereon, and every award, direction, order or
decision made shall be notified by the Tribunal to the parties concerned, the Authority or any
relevant committee.
(c) The Tribunal shall sit at such times and in such places as it may appoint.
(d) The proceedings of the Tribunal shall be open to the public save where the Tribunal, for
good cause, otherwise directs.
(e) Except as expressly provided in the EMCA or any regulations made thereunder, the
Tribunal shall regulate its proceedings as it deems fit.
(f) Any person who is a party to proceedings before the Tribunal may appear in person or be
represented by an Advocate before the Tribunal.20
(f) For the purposes of hearing and determining any cause or matter, the Chairman and two
members of the Tribunal shall form a quorum. A member of the Tribunal who has a direct

19

20

Ibid, Section 126.

Ibid, Section 132 (3).

interest in any matter which is the subject of the proceedings before the Tribunal shall not
take part in those proceedings.21
POWERS OF THE NATONAL ENVIRONMENT TRIBUNAL
The Tribunal may exercise the following powers:
1. Compel attendance of any person person at any place where the Tribunal is sitting.22
2. Order for discovery or production of documents concerning a matter before the
Tribunal.23
3. Order for investigation of any contravention of the EMCA as it deems necessary or
expedient.24
4. Take evidence on oath or may for that purpose administer oath.25
5. Summon and hear any person as a witness.26
6. Confirm, set aside or vary an order or decision in question and make other orders
including orders of cost as it may deem just or on its own motion.27
7. Make an award, give directions, make orders or decisions, of matters heard before it.28
8. Appoint any persons with special skills or knowledge on environmental issues which
are the subject matter of any proceedings or inquiry before the Tribunal to act as
assessors in an advisory capacity in any case where it appears to the Tribunal that such
special skills or knowledge are required for proper determination of the matter.29
9. Punish a person who engages in acts or makes omissions amounting to contempt of
the Tribunal.30
APPEALS TO THE HIGH COURT
Any person aggrieved by a decision or order of the NET may, within thirty days of such
decision or order, appeal to the High Court. No decision or order of the Tribunal shall be

21

Ibid, Section 128.

Ibid, Section 127 (1) (a)
23
Ibid.
24
Ibid.
25
Ibid, Section 127 (1) (b).
26
Ibid, Section 127 (1) (c)
27
Supra note 11.
28
Ibid.
29
Supra note 3, Section 131
30
Ibid, Section 133 (2).
22

enforced until the time for lodging an appeal has expired or, where the appeal has been
commenced, until the appeal has been determined. Upon the appeal, the High Court may: 31
(a) confirm, set aside or vary the decision or order in question;
(b) remit the proceedings to the Tribunal with such instructions for further consideration,
report, proceedings or evidence as the court may deem fit to give;
(c) exercise any of the powers which could have been exercised by the Tribunal in the
proceedings in connection with which the appeal is brought; or
(d) make such other order as it may deem just, including an order as to costs of the appeal or
of earlier proceedings in the matter before the Tribunal.
The decision of the High Court on any appeal shall be final.
In Nakumatt Holdings Limited v National Environment Management Authority & another32
Nakumatt Holdings Limited filed an application to the High Court seeking a temporary stay
of execution of the ruling given by the National Environmental Tribunal to stop the 2nd
Respondent from continuing with construction works. The Respondents opposed the
application by stating that section 130 (1) the EMCA did not grant the High Court jurisdiction
to issue the orders sought. An application for stay could only be granted under the provisions
of Order 41 of the Civil Procedure Rules.
The court agreed with the respondents, affirming that they had no power to issue injunctions
or stay of execution of the ruling of NET, even upon hearing of an appeal. The application
was dismissed.
JUDICIAL REVIEW
The EMCA is silent about judicial review of decisions made by NEMA and NET. Since both
are administrative bodies that discharge public functions, they are amenable to judicial
review. The Constitution of Kenya, 2010 provides under article 47 that every person has the
right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally
31
32

Ibid, Section 130.

[2005] eKLR.

fair. Article 22 sets out that every person has the right to institute court proceedings claiming
that a right or fundamental freedom in the Bill of Rights has been denied, violated or
infringed, or is threatened. The High Court has jurisdiction to hear such cases and may grant
appropriate relief including an order of judicial review.33 Hence, any person whose right to
fair administrative action has been infringed, denied or violated by NEMA or NET can apply
to the High Court for judicial review in order to vindicate their rights.

In Republic v National Environmental Management Authority & 2 others ex- parte Greenhills
Investment Ltd & 2 others 34

The first respondent (NEMA) filed an application seeking orders that the stay granted by the
High Court be set aside and vacated and the application for judicial review presented to court
by Notice of Motion premised on the orders of grant of leave to apply be struck out with costs
on bases inter alia that;
1) The application was premised on grounds that no attempts had been made to comply
with the orders of the judge who had granted leave and stay where he had directed that
a hearing date should be fixed on priority basis.
2) The application (seeking judicial review orders) was premature as no appeal, as
required by section 129 of the EMCA, 1999, had been made to the National
Environment Tribunal.

The Court HELD; among other things that:

1) Since the ex parte applicants did not comply with the conditions or terms (to set date
on priority basis) upon which leave and stay was granted this court has the power and
discretion to make such orders that will ensure that the said orders are either obeyed or
put a stop to the said non-compliance which is clearly an abuse of court process.

2) Section 129 of the EMCA, requiring filing of appeals to the National Environment
Tribunal in the first instance, by a person aggrieved by an order or decision, of the
Director General, NEMA, or committee of the authority, does not oust the jurisdiction
of the High Court of considering applications for judicial review of the decisions of
NEMA.
33

34

Articles 23 (1) and (3) (f).

(2006) 1 KLR

NATIONAL ENVIRONMENT TRIBUNAL PROCEDURE RULES

The National Environment Tribunal Procedure Rules35 guide the Tribunal with regard to the
procedure to follow when adjudicating. For example, Section 22 provides that the Tribunal
shall, with due regard to the convenience of the parties, fix the date, time and place of the oral
hearing, and not less than twenty-one days before the date so fixed, send to each party a notice
of the hearing. Section 30 provides parties an opportunity to be heard or cross-examine.
Section 38 provides that the Tribunal shall give reasons for all its decisions. These rules
ensure that the parties are treated fairly and hence, procedural fairness is observed.

35

Legal Notice No. 191 of 2003.

REFERENCES
1. The Environment Management and Co-ordination Act, Cap 387.
2. Kaniaru, D. (2006) Kenyan Environmental Tribunal Convenes for First Time.
3. Mehta, A. (2011) Commentary on the National Environmental Tribunal Procedure
established in Kenya.
4. Mbote, P.K and Akech, M. (2011), Kenya: Justice Sector and the Rule of Law,
African Minds.
5. The Forests Act, Cap 385.
6. eKLR.
7. The National Environment Tribunal Procedure Rules, 2003.