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ELCDismissedNot stated in judgment (Plaint dated 14th March 2014)· [2016] KEELC 1019 (KLR)

TAIB Investments Limited v Fahim Salim Said, Tool House Limited, Build My Home Limited, Muwa Holdings Limited, National Environment Management Authority & County Government of Mombasa (Environment & Land Case 37 of 2016) [2016] KEELC 1019 (KLR)

Environment and Land Court
8 April 2016
OAO. A. AngoteAOA. Omollo
2,301 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it—not the National Environment Tribunal—hears suits mixing land, planning and environmental disputes when no NEMA licence exists.

What this practically means

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Executive summary

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This is a ruling on a Preliminary Objection dated 24th March 2016 filed by the 1st, 3rd and 4th Defendants seeking to strike out the Plaintiff's suit with costs. They argued that the dispute, being grounded on the issuance of an environmental impact assessment licence by NEMA, fell within the exclusive first-instance jurisdiction of the National Environment Tribunal under Section 129 of the Environmental Management and Co-ordination Act (EMCA), and further that the Plaintiff had failed to make full and frank disclosure when obtaining ex-parte orders. The Plaintiff countered that the suit was multi-faceted, that no NEMA licence had been issued or refused so as to trigger Section 129, and that allegations of fraud could only be tried by the court. The court, citing Mukisa Biscuit and Oraro v Mbaja on the nature of preliminary objections, confined itself to the jurisdictional question and deferred the non-disclosure issue to the inter partes hearing of the injunction application. Examining the pleadings and documents, the court noted a NEMA letter of 16th October 2015 showing the EIA licence was still being processed, and no licence was exhibited. It held that the Tribunal's jurisdiction is limited to appeals from NEMA decisions, and that the Plaintiff's challenge to County Government plan approval under the Physical Planning Act and to alleged fraud fell outside the Tribunal's mandate, so the Environment and Land Court under Article 162(2)(b) had jurisdiction. The Preliminary Objection was dismissed with costs.

Key legal issues

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01

Whether the suit ought to have been commenced before the National Environment Tribunal under Section 129 of the EMCA

Holding

No - the Tribunal's jurisdiction is confined to appeals against NEMA decisions; no NEMA licence had been issued or exhibited to the Plaintiff, and the suit also raises issues of County Government approval and fraud which the Tribunal cannot entertain

Reasoning

Section 129 of the EMCA confers on the Tribunal jurisdiction to hear appeals by persons aggrieved by NEMA decisions such as grant or refusal of licences. Nothing on the pleadings or documents showed that a licence had been issued before the suit was filed; the letter of 16th October 2015 showed the EIA licence was still being processed. The suit further attacks the County Government's plan approval and alleges fraud, matters beyond the Tribunal's mandate, so the Environment and Land Court under Article 162(2)(b) has jurisdiction.

p. 4
02

Whether the alleged material non-disclosure at the ex-parte stage could ground the Preliminary Objection

Holding

No - that issue involves disputed facts and must await the inter partes hearing of the injunction application

Reasoning

A preliminary objection must be a pure point of law. Whether the Plaintiff failed to make full and frank disclosure when obtaining ex-parte orders requires the court to examine disputed facts and documents, which cannot be resolved on a preliminary objection. The court therefore declined to deal with it at this stage, reserving it for the inter partes hearing of the injunction application if the suit survives.

p. 4

Legal principles established

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  • The National Environment Tribunal's jurisdiction under Section 129 of the EMCA is limited to appeals emanating from decisions of NEMA
  • Where a suit raises environmental and developmental issues falling under multiple tribunals or bodies that cannot be dealt with separately, the Environment and Land Court under Article 162(2)(b) has jurisdiction over all the issues
  • A preliminary objection must be a pure point of law not blurred with contested factual details

Court orders

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  1. 1.The 1st, 3rd and 4th Defendants' Preliminary Objection dated 24th March, 2016 is dismissed with costs
  2. 2.The issue of material non-disclosure is left to be determined at the inter partes hearing of the Plaintiff's application for injunction

Authorities

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Legislation

  • Environmental Management and Co-ordination ActSection 129
  • Environmental Management and Co-ordination ActSection 125
  • Environmental Management and Co-ordination ActSection 58
  • Environmental Management and Co-ordination ActSection 63
  • Physical Planning Act
  • County Government Act
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Oraro Vs Mbaja
    (2005) 1 KLR 141
Jurisdiction invoked
Article 162(2)(b) of the Constitution (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 (16)

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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, "TAIB Investments Limited v Fahim Salim Said, Tool House Limited, Build My Home Limited, Muwa Holdings Limited, National Environment Management Authority & County Government of Mombasa (Environment & Land Case 37 of 2016) [2016] KEELC 1019 (KLR)", Case Analysis (2016). Not stated in judgment (Plaint dated 14th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1019/eng@2016-04-08

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