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The National Environment Tribunal: 101

The National Environment Tribunal (NET) is one of the mechanisms established under Kenyan Law for resolution of environment related disputes. It is established under the Environmental Management and Coordination Act (EMCA)[1]. The Tribunal has five members: a chairman and four members. The jurisdiction of the Tribunal is limited to appeals arising decisions made by the National Environment Management Authority (NEMA).

Who can file an appeal before the NET?

Two sets of persons can file appeals before the Tribunal: project proponents and any other persons affected or likely to be affected by a proposed project. A project proponent aggrieved by a decision made by NEMA can file an appeal before the NET and grounds of appeal ranges from, among others, refusal to grant a license to imposition of any conditions, limitations or restrictions on an Environmental Impact Assessment License[2].

A person other than a project proponent aggrieved by a decision made by NEMA may file an appeal before the Tribunal[3]. A bulk of preliminary objection applications before the Tribunal centre on the issue of locus standi of this category of litigants. The Tribunal has in numerous decisions asserted its jurisdiction to hear such appeals within provisions of Section 129 (2) and Section 3 (3) of EMCA, Articles 42 and 70 of the Constitution.

Limitation of time:

Appeals before the NET have a time limitation of sixty days from the time when a decision was made by NEMA. There are instances where persons affected or may be affected by the decisions are not aware of the decision, particularly where the project proponent hasn’t publicized the EIA license or any other decision by NEMA. In such an event, the Tribunal’s Rules of Procedure allow the Tribunal to grant extension of time. This is purely discretionary and therefore the applicant must demonstrate good reason as to why such extension should be granted.

Status quo pending Appeal:

A major plus for this Tribunal is that once an Appeal is filed before the Tribunal, there is an automatic stay and status quo of any matter or activity subject of the Appeal is maintained until the Appeal is determined. The litigants therefore do not go through motions seeking injunctions, which are discretionary orders given by courts and sometimes the Courts may have to hear applications interparties. Therefore with such a mechanism where there is automatic stay, the Tribunal is tasked to expedite hearing of the Appeal.

 

[1] Section 125 (1) EMCA.

[2] Section 129 (1) EMCA and Regulation 46 (a-e) Environment (Impact Assessment & Audit) Regulations, 2003.

[3] Within provisions of Section 129 (2) EMCA and Regulation 46 (f) Environment (Impact Assessment & Audit) Regulations, 2003.

Incentive to Conserve: Mechanisms Under Kenyan Law

The newly published draft guidelines under the Wildlife Conservation and Management Act, No. 47 of 2013 cited Wildlife Conservation and Management (Community Participation) Regulations 2016 provide a mechanism for community participation in conservation. This is a welcome move towards involvement of the communities in conservation particularly for communities neighbouring game parks and game reserves. The guidelines seek to promote conservation of wildlife and its habitats in such protected areas, while seeking to involve the communities in the management of wildlife; ensure that wildlife is appropriately valued in order to reduce illegal off-take and encourage sustainable use by rural communities and create an environment that will ensure legal and sustainable wildlife schemes directly benefit local communities. The Kenya Wildlife Service (KWS) is mandated to engage and involve the communities in the management of wildlife resources including extraction of minerals and other extractive resources in the protected areas.

 

This is a positive shift in policy, from the previously hardline political position where communities have been sidelined in the conservation and management of wildlife and wildlife resources, to a position of policy measures which provide incentives to actors to conserve biodiversity and promote sustainable development.

The draft guidelines can be accessed via http://kws.go.ke/downloads.

 

 

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