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Court of AppealPartially AllowedCivil Appeal 49 of 2016

Eaton Towers Kenya Limited v Kasing’a & 5 others

Court of Appeal
28 April 2022
RNR. N. NambuyeWKW. KaranjaPKP. O. Kiage
4,979 words in judgment
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The bottom line

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Kenya's Court of Appeal cancelled a mast ruling because the landowner should have used statutory tribunals instead of jumping straight to a constitutional petition.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Nambuye, Karanja and Kiage, JJA) allowed an appeal by Eaton Towers Kenya Limited against the judgment of the High Court (ELC) which had cancelled the EIA licence and development permission for a telecommunication mast, ordered the mast pulled down, and awarded the adjacent landowner Kshs. 10,000 in damages for violation of his right to a clean and healthy environment. The appeal was decided solely on jurisdiction. The Court held that the petition, though couched as a constitutional claim, was at heart a challenge to the issuance of the EIA licence and the development permission, matters for which the Environmental Management and Co-ordination Act provides appeals to the National Environmental Tribunal and the Physical and Land Use Act provides the Liaison Committee. The 1st respondent was not barred from pursuing those avenues and had skipped them for convenience. The Court rejected the trial judge's reasoning that the ELC's unlimited jurisdiction over environmental disputes, the multifaceted nature of the complaint, and Article 159's technicalities override justified entertaining the petition, holding that multifaceted drafting cannot confer jurisdiction, that the principle of avoidance is not discretionary, and that jurisdiction-conferring procedures are not mere technicalities. The judgment below was set aside in its entirety with no order as to costs; the remaining grounds were not reached.

Key legal issues

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01

Whether the High Court had jurisdiction to entertain the constitutional petition despite available statutory remedies

Holding

The High Court lacked jurisdiction; the petition was essentially a challenge to the EIA licence and development permission which should have gone to the tribunal and the Liaison Committee respectively.

Reasoning

The court found the heart of the petition was a challenge to procedural issues, evidenced by the prayers seeking suspension of licences and approvals. The 1st respondent creatively couched his complaints as a constitutional petition when statutory forums were available. Following Gabriel Mutava, Kibos Distillers and Royal Media Services, constitutional litigation is not a panacea and the first port of call is suitable statutory forums. The multifaceted nature of the petition could not confer jurisdiction.

p. 7
02

Whether the principle of avoidance is discretionary

Holding

It is not discretionary; courts should not pronounce on constitutional questions where a matter can be resolved without recourse to the Constitution.

Reasoning

The learned judge had held he could weigh the matter and decide whether to proceed or refer the litigant to other remedies. The Court of Appeal held this was error: the principle of avoidance is an old adage adhered to by courts globally, citing John Harun Mwau, Ashwander v Tennessee Valley Authority and S v Mhlungu. A court pronounces on constitutionality only when necessary for the decision of the case.

p. 8
03

Whether Article 159's override of procedural technicalities could cure jurisdictional defects

Holding

No; procedures that bring matters within a court's jurisdiction are not mere technicalities curable by Article 159.

Reasoning

The learned judge had reasoned that even if he failed to address the petition, the petitioner could file a new suit which he would still hear, guided by Article 159. The Court of Appeal held this cannot be good law: the two avenues confer separate jurisdictions with separate procedures that must strictly be adhered to, and jurisdiction-conferring procedures serve salutary practical and pragmatic purposes.

p. 9

Legal principles established

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  • The multifaceted nature of a petition is not a basis for a court to arrogate jurisdiction to itself; jurisdiction cannot be conferred by drafting pleadings multifariously.
  • Adherence to the principle of avoidance is not discretionary; where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved.
  • A litigant must exhaust statutory dispute-resolution avenues before moving to court by constitutional petition, unless barred from pursuing those avenues.
  • Jurisdiction-conferring procedures go to the heart of a court's ability to hear a matter and cannot be reduced to technicalities curable by Article 159.

Court orders

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  1. 1.Appeal allowed on the foundational question of jurisdiction alone, without going into the other issues
  2. 2.Judgment of the High Court (ELC) set aside in its entirety
  3. 3.No order as to costs
On appeal from
High Court of Kenya at Nakuru (Environment and Land Court)
Petition No. 50 of 2013
Jurisdiction invoked
First appellate jurisdiction under Article 164 of the Constitution over the judgment of the High Court (ELC) in a constitutional petition; jurisdictional questions determined under Articles 23 and 165(3)(a)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eaton Towers Kenya Limited v Kasing’a & 5 others", Case Analysis (2022). Civil Appeal 49 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/645/eng@2022-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.