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ELCOtherNot stated in excerpt (ELC suit, Nakuru)· [2016] KEELC 200 (KLR)

Purity Muthoni Plein v National Oil Corporation Ltd & another [2016] KEELC 200 (KLR)

Environment & Land Court
10 November 2016
1,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a petrol station project because approvals were still pending — objectors must first be heard by the county and NEMA before suing.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Nyahururu Municipality Block 8/1036, sued alleging the 1st defendant, an oil company, intended to construct a petrol station on adjacent parcel 8/375 in breach of lease conditions and in a residential zone, and that the 2nd defendant, the County Government of Laikipia, approved the construction without an EIA and without hearing her objections. She sought a permanent injunction and cancellation of building plans, and moved under Order 40 Rules 1 and 2 of the Civil Procedure Rules for an interlocutory injunction. The 1st defendant, through its legal affairs manager Gladys Koletit, replied that it purchased the land on 2 April 2015, was still obtaining approvals pending completion of an EIA report, that the area was zoned light industrial, and that the suit was premature and speculative; the 2nd defendant did not respond. Counsel for the plaintiff invoked Section 41(3) of the Physical Planning Act and Section 59(1) of EMCA. Holding that no approval had been granted and no EIA licence issued, Munyao Sila J found the suit premature. He declined the injunction but directed the County Government and NEMA to hear the plaintiff's objections, comply fully with the Physical Planning Act and EMCA including public participation and consultation with contiguous landowners, and communicate any decision in writing. The ruling was to be served on both authorities. The plaintiff's vigilance was commended and no orders as to costs were made.

Key legal issues

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01

Prematurity of the suit and injunction application

Holding

The suit was premature because the 1st defendant's plans were pending consideration and no EIA licence had been issued

Reasoning

The court found that no approval had been granted to commence the project; the 1st defendant had only submitted plans and was in the process of conducting an EIA. Since the decision-making process was incomplete, there was nothing to restrain, and the plaintiff should first ventilate her objections before the County Government and NEMA, then seek legal redress if dissatisfied with the outcome.

p. 2
02

Statutory compliance and public participation

Holding

The Physical Planning Act and EMCA must be fully complied with, including consultation with the applicant and contiguous owners

Reasoning

Although declining the injunction, the court emphasised that the statutory procedures under the Physical Planning Act (Section 41(3), neighbour involvement) and EMCA (Section 59(1), EIA report) must be observed. The applicant deserves to be heard on her objections, a judicious decision reached, and that decision communicated in writing to her before she may seek legal redress.

p. 2

Legal principles established

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  • A suit to challenge a development is premature where the relevant approvals and EIA licence have not yet been granted; the objector should first make representations before the County Government and NEMA
  • Authorities must afford public participation and full consultation with adjacent landowners, reach a judicious decision and communicate it in writing before legal redress is sought

Court orders

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  1. 1.Refusal of the order of injunction sought on the ground that the suit is premature
  2. 2.Direction to the 2nd respondent and NEMA to listen keenly to the objections of the applicant and communicate any decision to her in writing
  3. 3.Direction that the ruling be served upon the 2nd respondent and upon NEMA for them to act as directed
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1 and 2
  • Physical Planning Act, Cap 286 Laws of KenyaSection 41(3)
  • Environmental Management and Coordination Act (EMCA)Section 59(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; interlocutory application under Order 40 Rules 1 and 2 of the Civil Procedure Rules

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, "Purity Muthoni Plein v National Oil Corporation Ltd & another [2016] KEELC 200 (KLR)", Case Analysis (2016). Not stated in excerpt (ELC suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/200/eng@2016-11-10

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