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ELCDismissedNot stated in judgment· [2015] KEELC 378 (KLR)

Hosea Kiplagat & 6 others v National Environment Management Authority Nema & 2 others [2015] KEELC 378 (KLR)

Environment and Land Court
9 April 2015
OAOMBWAYO ANTONY
2,115 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear residents' challenges to development licences, and technical mistakes won't sink a case.

What this practically means

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Executive summary

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Seven plaintiffs owning Kabarnet residential Plots Nos. 182, 184-189 sued NEMA, the owner of Plot No. 183 and his professional adviser, challenging the change of user of Plot 183 from residential to commercial and the grant of an EIA licence on 8th January 2015 for a Nursing Home and Doctors Plaza. They sought injunctions restraining construction, licensing and professional advice, a declaration that the advice was compromised, and cancellation of the EIA licence. Before hearing, the 1st defendant raised a preliminary objection that the court lacked jurisdiction, the dispute lying before the National Environment Tribunal under sections 129 and 130 of the Environmental Management and Co-ordination Act, and that service was outside the 7 clear days rule. The 2nd and 3rd defendants objected that the 3rd plaintiff had no authority to represent the others, offending Order 1 rule 13 of the Civil Procedure Rules and section 22 of the Environment and Land Court Act. The court held that section 129(2) must be read with section 129(1), which addresses refusal, revocation, suspension or transfer of licences, not public challenges to the grant of licences; land use falls within the ELC's mandate under Article 162(2)(b). The want of authority was a technicality cured by Article 159. Both preliminary objections were dismissed and the matter ordered to proceed for hearing.

Key legal issues

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01

Jurisdiction of the ELC vis-a-vis the National Environment Tribunal

Holding

The preliminary objection fails; the ELC has jurisdiction as the suit concerns use of land and no mechanism under ss.129(1) and (2) empowers the public to appeal the grant of a licence to the Tribunal

Reasoning

The court analysed the EIA licensing process under sections 58-67 of EMCA and Part XII (ss.128-138). It held that section 129(2) must be read with section 129(1), which deals with refusal to grant or transfer a licence. Since the plaintiffs challenge the grant of a licence and land use, the Tribunal route does not apply and the ELC, established under Article 162(2)(b), is the proper forum.

p. 4
02

Want of authority by the 3rd plaintiff to represent co-plaintiffs

Holding

Not fatal; a procedural technicality overridden by Article 159

Reasoning

The court found the absence of a written authority did not prejudice the defendants since the plaintiffs had signed and filed statements. Article 159 of the Constitution directs courts not to pay undue regard to procedural technicalities, and this was one such technicality.

p. 5
03

Objection that the High Court lacks environment and land jurisdiction

Holding

Lacks substance as the suit was filed in the Environment and Land Court at Eldoret, not the High Court

Reasoning

Counsel for the 1st defendant argued under Articles 162(2)(b) and 165 that the High Court lacks jurisdiction. The court agreed with the proposition but found the plaint was actually lodged in the ELC at Eldoret, so the submission was moot.

p. 3

Legal principles established

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  • Sections 129(1) and 129(2) of EMCA do not envisage members of the public moving the National Environment Tribunal to challenge the granting of EIA licences; they concern refusal, revocation and transfer of licences
  • The Environment and Land Court's power under Part XI of EMCA to deal with issues of entitlement to a clean and healthy environment cannot be taken away by preliminary objection

Court orders

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  1. 1.The preliminary objections are dismissed
  2. 2.The matter to proceed for hearing

Authorities

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Legislation

  • Constitution of KenyaArticles 159, 162(2)(b), 165
  • Environmental Management and Co-ordination Act, 1999Sections 58-67, 58, 59(1), 63, 67, 125, 128-138, 129, 129(1), 129(2), 130
  • Environment and Land Court Act, 2011Sections 13, 22
  • Civil Procedure Rules, 2010Order 1 rule 13(1) and (2)
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Hosea Kiplagat & 6 others v National Environment Management Authority Nema & 2 others [2015] KEELC 378 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/378/eng@2015-04-09

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