Eaton Towers Kenya Limited v Kasing’a & 5 others
The bottom line
#Kenya's Court of Appeal threw out an environmental petition because the complainant skipped dedicated tribunals and went straight to court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of statutory remedies
The High Court/ELC ought not to have entertained the petition; the 1st respondent should have gone to the National Environmental Tribunal on the EIA licence and the Liaison Committee on the development approval.
The heart of the petition was a challenge to procedural issuance of the EIA licence and development permission, for which EMCA and the Physical and Land Use Act provide dedicated forums. The 1st respondent was not barred from those avenues; he skipped them for convenience. Constitutionalising such complaints promotes forum shopping and cannot confer jurisdiction.
Principle of avoidance
Adherence to the principle of avoidance is mandatory, not discretionary; constitutional redress is a last resort.
The learned judge treated the choice between constitutional petition and statutory forums as a discretionary weighing exercise. The Court held this was error: where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved at all, citing Mwau and foreign authority.
Article 159 and jurisdictional prerequisites
Jurisdiction-conferring procedures cannot be downgraded to technicalities curable under the overriding objective.
The judge below relied on Article 159 to justify hearing the petition despite non-exhaustion. The Court held that statutory channels allocating jurisdiction serve salutary purposes and go to the heart of a court's competence; they are not procedural technicalities that Article 159 can cure.
First appellate court duty
As a first appellate court, the Court is enjoined to re-evaluate the entire evidence before deciding whether the trial judge's conclusions stand.
The Court invoked its standard first-appeal duty as captured in Robin Angus Paul v Miriam Hemed Kale, but disposed of the appeal on the preliminary jurisdictional question without re-evaluating the evidence on the other issues.
Legal principles established
#- The multifaceted nature of a petition is not a basis for a court to arrogate jurisdiction to itself; jurisdiction cannot be conferred by the art and craft of drafting pleadings.
- 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.
- Statutory procedures that bring matters within a court's jurisdiction are not mere technicalities curable by Article 159.
- A litigant must exhaust available statutory dispute-resolution avenues before resorting to a constitutional petition, unless barred from pursuing them.
Court orders
#- 1.Appeal allowed on the foundational question of jurisdiction alone, without going into the other issues
- 2.Judgment of the High Court (ELC) set aside in its entirety
- 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 High Court/ELC; constitutional redress provisions considered under Articles 23 and 165(3)(a)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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/2022/861/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.