Luo Council of Elders & 7 others v Cabinet Secretary Water & Irrigation & 13 others [2017] KEELC 1976 (KLR)
The bottom line
#The Environment and Land Court referred the KShs 34 billion Itare Dam challenge to the Chief Justice to empanel at least three judges, finding major public-participation and environmental questions affecting nine counties.
What this practically means
#Executive summary
#Key legal issues
#Whether the court may treat the application as one under Article 165(4) despite citation of wrong provisions
Yes; the court considered the application as one under Article 165(4) applying Article 159(2)(d) and dismissed the competence objection
Though the motion cited Rules 23 and 24 of the Mutunga Rules, the focus of the application and submissions was Article 165(4). Relying on the constitutional command to administer justice without undue regard to procedural technicalities, the court treated it as an Article 165(4) application and also under the Environment and Land Court Act, dismissing the objection as to the wrong provision.
Whether the petition raises substantial questions of law warranting empanelment
Yes; the petition raises substantial questions of law of general public importance and a substantial question under section 21 of the ELC Act concerning the environmental impact of the dam
The court found the KShs 34 billion project to be of great public interest to communities in nine counties. The questions concerned the nature and extent of public participation under Article 10 in a project whose environmental effects will be felt in several counties, and the impact on the right to a clean and healthy environment under Article 42. These questions would benefit from the enriched input of more than one judicial mind.
Whether existence of a substantial question automatically warrants reference to the Chief Justice
No; certification is an exception and the court retains discretion, weighing the need for judicial enrichment against the need to dispense justice without delay
Following Harrison Kinyanjui and County Government of Meru, the court noted every judge has authority under Article 165 to determine matters within jurisdiction, and a three-judge decision carries equal force. Nonetheless, the provision for uneven benches serves the enriched decision-making process, and in the exercise of discretion the court referred the matter for empanelment.
Legal principles established
#- Under section 21 of the Environment and Land Court Act, the jurisdiction to certify a matter as raising a substantial question of law is wider than that of the High Court under Article 165(4) of the Constitution
- A substantial question of law of general public importance is one that affects the general welfare of the public or concerns all members of the community
- The grant of a certificate under Article 165(4) is an exception rather than the rule; public interest is not necessarily decisive
- Sensitivity of a case is not a reason for a matter to be heard by a bench rather than a single judge
Court orders
#- 1.That this petition as well as ELC Petition No. 44 of 2016 (Nakuru) and ELC Petition No. 45 of 2016 (Nakuru) be placed before the Hon. Chief Justice to consider constituting an uneven number of judges, being not less than three, to hear and determine the petitions
- 2.Costs in the cause
- 3.The objection that the application is incompetent for being brought under the wrong provision of law is dismissed
- Jurisdiction invoked
- Article 165(4) of the Constitution and section 21 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okiya Omtatah Okoiti v Director of Public Prosecutions[2020] KEHC 1824 (KLR)12 Nov 2020
- Petitioners v Attorney General & Others (Garissa University Terrorist Attack Petition) - Application for Certification under Article 165(4)[2020] KEHC 4967 (KLR)29 Apr 2020
- Petition by a sitting Judge of the High Court (Deputy Chief Justice) seeking declarations over criminal prosecution - Application for certification under Article 165(4)[2018] KEHC 3432 (KLR)17 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "Luo Council of Elders & 7 others v Cabinet Secretary Water & Irrigation & 13 others [2017] KEELC 1976 (KLR)", Case Analysis (2017). ELC Petition No. 9 of 2017 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1976/eng@2017-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.