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ELCStruck OutPetition No. 8 of 2014· [2015] KEELC 415 (KLR)

Joseph Ojwang’ Oundo v National Environment Management Authority & 8 others [2015] KEELC 415 (KLR)

Environment and Land Court
10 June 2015
SMS. Mukunya
4,116 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out an environmental petition because the case was already decided and the wrong legal route was used first.

What this practically means

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Executive summary

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This was a first-instance petition before the Environment and Land Court at Bungoma in which the petitioner sought declarations that the construction and operation of a sugar factory complex in Busia County prior to, and on account of the allegedly irregular issuance of, EIA licence No. 0020469 was unconstitutional and contravened EMCA and the Water Act; an order of certiorari to quash the licence; and a permanent injunction restraining construction. By consent, Senator Amos Tshisilwa Wako was joined as sixth defendant, and the parties agreed that the Court first determine its own jurisdiction. The respondents and interested parties raised a preliminary objection on two grounds: lack of jurisdiction, because section 129 of EMCA provides an appeal to the National Environment Tribunal against NEMA's licensing decisions which the petitioner had not exhausted; and res judicata, because Busia High Court Petition No. 1 of 2014 (Tuiyot J) had already determined substantially the same issues between overlapping parties. The Court held that although the ELC enjoys exclusive jurisdiction over environment and land matters as against other superior courts under Article 162(2)(b) and section 13 of the ELC Act, that exclusivity does not displace statutory appellate forums; where NEMA has made a licensing decision, the National Environment Tribunal is the proper first forum. Distinguishing Wainaina Kenyanjui, where no appealable decision existed, the Court held the petitioner ought first to have gone to the tribunal. On res judicata, applying section 7 of the Civil Procedure Act, the Court found the parties (save the petitioner) and all five prayers substantially identical to Petition No. 1 of 2014, both petitions being public-spirited litigation, and no appeal having been preferred against Tuiyot J's findings. Petition No. 8 was struck out, with each party bearing their own costs given the public-spirited nature of the litigation.

Key legal issues

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

Holding

The ELC has exclusive jurisdiction over environment and land matters vis-à-vis other superior courts, but where a statute provides a specific appellate mechanism - here an appeal to the National Environment Tribunal under section 129 of EMCA against NEMA's decision to issue an EIA licence - that statutory remedy must be exhausted first.

Reasoning

The court analysed sections 13(1) and 13(4) of the ELC Act and Article 169(1) of the Constitution, concluding that the ELC's exclusive jurisdiction as against superior courts does not remove the jurisdiction of subordinate courts and tribunals. Since NEMA had made a decision (granting EIA licence No. 0020469) capable of appeal, the tribunal was the right arena, distinguishing Wainaina Kenyanjui where no decision existed to appeal.

p. 5
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Res judicata

Holding

The petition is res judicata by dint of Busia High Court Petition No. 1 of 2014, in which Justice Tuiyot directly and substantially determined all five prayers now raised in Petition No. 8.

Reasoning

Applying section 7 of the Civil Procedure Act, the court compared the parties and prayers of the two petitions. The respondents and interested party were the same; only the petitioner differed, but both petitions were public-spirited litigations covering the public, including the present petitioner. No appeal was preferred against Tuiyot J's findings, so there was nothing left for this Court to determine.

p. 9

Legal principles established

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  • Where there is a clear statutory procedure for redress of a grievance, that procedure should be strictly followed and exhausted before resorting to constitutional remedies
  • The ELC's exclusive jurisdiction over environment and land matters does not oust statutory appellate forums such as the National Environment Tribunal; redress there should be sought first

Court orders

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  1. 1.Petition No. 8 is struck out
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Ojwang’ Oundo v National Environment Management Authority & 8 others [2015] KEELC 415 (KLR)", Case Analysis (2015). Petition No. 8 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/415/eng@2015-06-10

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