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ELCDismissedNot stated in the judgment· [2015] KEELC 759 (KLR)

Amos Njoroge Kamweru & 5 others v Kajiado County Government & 2 others [2015] KEELC 759 (KLR)

Environment and Land Court
24 April 2015
MGMARY M. GITUMBI
1,300 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed environmental objectors to bypass the Tribunal and use judicial review where other regulators' decisions must be challenged alongside NEMA's.

What this practically means

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Executive summary

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This first-instance ruling by the Environment and Land Court at Nairobi (Mary M. Gitumbi J) determined a preliminary objection dated 26th February 2014 raised by the 2nd Respondent, NEMA, in judicial review proceedings brought by Ex-Parte Applicants challenging the grant of a NEMA license to the Interested Parties. NEMA objected that the Petitioners' claim was fatally defective and an abuse of process; that jurisdiction lay with the National Environment Tribunal under Part XII of the EMCA, section 129(1) providing the forum of first instance for challenges to NEMA decisions and section 130 routing appeals from the NET to the High Court/ELC; and that the ELC's powers could only be invoked appellate. The Interested Parties supported the objection. The Ex-Parte Applicants argued they were third parties, not license applicants, so section 129(1) did not apply, and that exceptional circumstances existed because they had also sued the 1st and 3rd Respondents, other licensing authorities outside the EMCA regime, whom the NET could not adjudicate upon. The court, following Odunga J's decision in R. versus The NET, held that section 129(1) covers appeals by license applicants while section 129(2) covers all other aggrieved persons, a category in which the Applicants fell. Applying the Court of Appeal's decision in Republic versus NEMA that judicial review is granted only in exceptional circumstances where a statutory appeal exists, the court found that the need to have the 1st and 3rd Respondents' licensing decisions addressed alongside NEMA's constituted such exceptional circumstances. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether third parties aggrieved by a NEMA license are captured under section 129 of the EMCA

Holding

They are captured under section 129(2) and may challenge the licensing decision before the NET.

Reasoning

Relying on Odunga J's decision in R. versus The NET, the court held that section 129(1) deals with appeals by license applicants who are aggrieved parties, while subsection (2) covers all other persons aggrieved by decisions of the Director General, the Authority or a Committee. The Ex-parte Applicants fall in the latter category notwithstanding that they did not participate in the EIA study process.

p. 3
02

Whether exceptional circumstances exist to allow the Ex-parte Applicants to bypass the NET appeal process and pursue judicial review

Holding

Yes - the joinder of the 1st and 3rd Respondents, whose licensing decisions the NET cannot adjudicate, constitutes exceptional circumstances.

Reasoning

The court accepted that the Applicants seek the licensing decisions of the 1st and 3rd Respondents to be addressed alongside NEMA's decision, and that EMCA provisions do not apply to those bodies' licensing procedures so the NET has no jurisdiction over them. The need to have all licensing decisions determined together qualified as exceptional circumstances warranting judicial review.

p. 3

Legal principles established

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  • A person who did not participate in the EIA study process is not an aggrieved party under section 129(1) of the EMCA but may challenge a NEMA licensing decision before the NET under section 129(2) of the EMCA.
  • Where a statutory appeal procedure exists, judicial review will only be granted in exceptional circumstances.

Court orders

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  1. 1.The Preliminary Objection dated 26th February 2014 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Environmental Management and Coordination Act (EMCA)Section 125(1)
  • Environmental Management and Coordination Act (EMCA)Section 129(1)
  • Environmental Management and Coordination Act (EMCA)Section 129(2)
  • Environmental Management and Coordination Act (EMCA)Section 130

Cases cited (2)

  • Republic versus NEMA
    Civil Appeal No. 84 of 2010 (2011) eKLR
  • R. versus The NET
    Civil Miscellaneous Application No. 155 of 2012
Jurisdiction invoked
Sections 129 and 130 of the Environmental Management and Coordination Act (EMCA); jurisdiction of 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 (2)

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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, "Amos Njoroge Kamweru & 5 others v Kajiado County Government & 2 others [2015] KEELC 759 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/759/eng@2015-04-24

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