Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (ELC Petition No. 7 of 2020 appeal, Kisumu)

Nicholus v Attorney General & 14 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) (Civil Appeal 42 of 2021) [2023] KECA 34 (KLR)

Court of Appeal
3 February 2023
FTF TuiyottPKP O KiageMNMumbi Ngugi
7,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that you must use specialized tribunals like the environmental and energy tribunals before rushing to court with environmental or power disputes.

What this practically means

#

Executive summary

#
The appellant, Abidha Nicholus, a lawyer appearing in person, appealed against the decision of Ombwayo, J of the Environment and Land Court striking out his petition challenging gold mining activities in Ramba, Siaya County, for want of jurisdiction. The ELC had upheld two jurisdictional objections: that the appellant had not exhausted the dispute resolution mechanisms under sections 129(1)-(4) of EMCA, and that the complaints against Kenya Power & Lighting Company fell under the Energy Act, 2019 dispute resolution framework. Tuiyott, JA, in a judgment with which Mumbi Ngugi and P O Kiage, JJA concurred, dismissed the appeal. The court held that complaints about NEMA's issuance of licences and its failure to enforce a stop order fell squarely within the appellate jurisdiction of the National Environmental Tribunal under section 129(2) of EMCA, since a decision required to be made but not made is a 'decision' under the Fair Administrative Action Act. The grievances against KPLC concerning trespass, way leaves and electricity infrastructure had to go first to EPRA, then on appeal to the Energy and Petroleum Tribunal, whose wide equitable remedies include damages and injunctions, and only then to the High Court. On the critical question of what orders a court should make where a multifaceted petition mixes exhausted-forum and properly-filed claims, the court applied the Supreme Court's decision in Benson Ambuti Adega but held that the ELC was not obliged to split the petition on the appellant's behalf. Striking out, as opposed to dismissal, left the appellant free to file a fresh suit excluding the EMCA and Energy Act matters, so his right to fair hearing was not impeded. The binding principle is that the multifaceted character of pleadings cannot confer jurisdiction on a court, and courts should not reward bad-faith drafting designed to oust specialized tribunals. The appeal was dismissed with costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Did the appellant exhaust the dispute resolution mechanism provided by EMCA in respect to his complaints regarding the right to a clean and healthy environment?
  2. 2.Were the complaints against KPLC resolvable, in the first instance, under the dispute resolution mechanism provided under the Energy Act and if so did the appellant exhaust that mechanism?
  3. 3.Did the appellant’s petition disclose a cause of action or actions that fell outside EMCA and the Energy Act?
  4. 4.If the appellant had failed to exhaust the alternative dispute resolution mechanisms available under EMCA or the Energy Act or both, but the petition nevertheless raised other issues outside the two statutes, what orders should the ELC have made?

Key legal issues

#
01

Exhaustion of EMCA dispute resolution mechanism

Holding

The appellant did not exhaust the EMCA mechanism; complaints about NEMA's issuance of licences and its failure to enforce the stop order fall within the NET's appellate jurisdiction under section 129(2) EMCA.

Reasoning

Article 159(2)(c) and section 9 of the Fair Administrative Action Act mainstream alternative dispute resolution and the exhaustion principle. The definition of 'decision' in section 2 of the FAAA includes a decision required to be made, so NEMA's failure to enforce the stop order is appealable to the NET. Prayers for certiorari and prohibition targeting NEMA licensing decisions also pointed to the NET as the proper forum.

p. 11
02

Exhaustion of the Energy Act dispute resolution mechanism

Holding

The grievances against KPLC relating to trespass, way leaves and electricity poles were resolvable before EPRA and the Energy and Petroleum Tribunal under section 36 of the Energy Act, 2019, and were not exhausted.

Reasoning

KPLC is an energy sector entity under the third schedule of the Energy Act. The Act provides a three-tier mechanism: complaints to EPRA under the saved 2012 Regulations, appeal to the Energy and Petroleum Tribunal with wide equitable powers including damages and injunctions, and only then appeal to the High Court under section 37(3). No reason was shown why efficacious relief was unavailable.

p. 14
03

Whether the trial court erred in raising the EMCA objection sua sponte and without reasons

Holding

The final order striking out the petition was not made sua sponte; it was available to the court once it found it lacked original jurisdiction over some claims, and the appeal was one of law only.

Reasoning

The appellant could have sought leave to amend his petition to trim matters belonging elsewhere but chose to plough on, taking the risk. Striking out rather than dismissal leaves him free, subject to limitation, to mount another suit. The order therefore did not impinge on his right to fair hearing.

p. 16
04

What orders a court should make where a multifaceted petition contains both exhausted-forum and properly-filed claims

Holding

While a court may reserve constitutional issues properly before it pending exhaustion of other mechanisms (per Benson Ambuti Adega), the choice of order depends on the circumstances, and a court should not reward a party who in bad faith drafts multifaceted pleadings to cheat jurisdiction.

Reasoning

The court distinguished Benson Ambuti Adega: reservation of issues is one option, but courts must be vigilant against abuse of process. A litigant confronted with a jurisdictional objection could amend to trim the petition; failing that, the risk is his. Convenience and artful drafting cannot confer jurisdiction, per Eaton Towers and Kibos Distillers.

p. 16

Legal principles established

#
  • The multifaceted nature of a petition or suit is not a basis for a court to arrogate jurisdiction to itself where jurisdiction over some claims is legislatively conferred on specialized tribunals.
  • A court that declines jurisdiction over some claims in a multifaceted petition need not split the petition on the litigant's behalf; the order made depends on the circumstances, and striking out does not necessarily offend fair hearing rights.
  • Complaints about failure to enforce a NEMA stop order fall within the appellate jurisdiction of the National Environmental Tribunal under section 129(2) of EMCA.
  • Disputes over way leaves and electricity infrastructure on private land must first be taken to EPRA, then on appeal to the Energy and Petroleum Tribunal, before escalation to the High Court.

Court orders

#
  1. 1.Appeal dismissed with costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

FT
majority

Wrote the judgment

PK
majority
MN
majority
On appeal from
Environment and Land Court
ELC Petition No. 7 of 2020
Jurisdiction invoked
Section 3 of the Appellate Jurisdiction Act / first appeal to the Court of Appeal against the decision of the Environment and Land Court

Relief refused

#

Appeal against the striking out of the petition for want of jurisdiction

The ELC correctly declined jurisdiction over disputes reserved for NEMA/NET and the Energy and Petroleum Tribunal, and striking out (as opposed to dismissal) did not impede the appellant's right to fair hearing

p. 16

Costs

Appeal dismissed with costs to the respondents

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We state categorically and without equivocation that the multifaceted nature of any petition, or suit for that matter, is not a basis to find a court to arrogate jurisdiction to itself.
p. 15Multifaceted pleadings cannot confer jurisdiction
A court has no business making benign orders in favour of a party who has deliberately and in bad faith crafted pleadings so as to cheat jurisdiction.
p. 16Abuse of process through forum shopping
Only upon exhaustion of the appellate process before the Energy and Petroleum Tribunal can a matter be escalated to the High Court.
p. 14Exhaustion under the Energy Act
In so far as the appellant faults certain decisions made by NEMA regarding issuance of licences and permits to the miners, those issues squarely fall within the jurisdiction of the NET and I have to endorse the finding of the trial court
p. 11NET jurisdiction under EMCA
I would propose that the appeal be dismissed with costs.
p. 16Final orders - disposition

Issues in the judgment

#
minor

The judgment is authored by a single judge (Tuiyott, JA) proposing the outcome, with concurring brief statements, rather than expressed as the judgment of the whole court; the proposal in the body and the disposing statement differ slightly in form.

minor

The judgment refers to NEMA's response misnaming the appellant as 'Abidha Nocholus' and inconsistently references 'plot 719' versus earlier 'LR No Siaya/Ramba/219 and 720'.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Nicholus v Attorney General & 14 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) (Civil Appeal 42 of 2021) [2023] KECA 34 (KLR)", Case Analysis (2023). Civil Appeal (ELC Petition No. 7 of 2020 appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/34/eng@2023-02-03

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