Pearl Beach Hotel Limited & another v Kenneth Stanley Haji & 2 others [2017] KEELC 3564 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a constitutional challenge to an adjacent development, holding that losing part of an ocean view is not a violation of constitutional rights.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC vis-à-vis the National Environment Tribunal
The Petition is properly before the ELC; the jurisdictional objection is unmerited.
Adopting Munyao J's reasoning in Ken Kasing'a, the court held that Article 162(2)(b) and Section 13 of the ELC Act confer unlimited jurisdiction over environmental disputes. The claim involved multiple parties, including the County Government, whose approvals could only be referred to the National Planning Liaison Committee, meaning the Petitioners would otherwise have to approach several institutions over related disputes resolvable in one claim.
Whether approvals breached section 41(3) of the Physical Planning Act and title conditions
No breach was proved.
The Petitioners did not specify how section 41(3) was violated; the notice of change of user was published; the Petitioners did not annex any registered objections; and though permitted to survey the buildings to test compliance with clause 6 of the mother title, they never filed the survey report, leading the court to infer it was favourable to the 1st Respondent.
Whether constitutional rights (Articles 40, 42, 47) were violated
No violation established.
Both plots have open sea fronts and equal access; partial loss of view from Block D apartments is aesthetic loss which cannot found a constitutional claim where equal access exists. The Petitioners were engaged and consulted during the EIA process and in correspondence with the 1st Respondent, and no breach of their environmental or fair administrative action rights was demonstrated.
Cross-Petition for damages caused by conservatory orders
Damages not payable; cross-petition dismissed.
The right to approach the court under Article 70 and Section 3 of EMCA is conferred without requiring proof of loss. The Petitioners' application was heard on its merits and dismissed without a finding of vexatiousness or abuse of process; they had genuine fears regarding the jetty location and loss of view, so they cannot be condemned in damages for protecting those rights.
Legal principles established
#- The Environment and Land Court has unlimited original jurisdiction over disputes relating to the environment under Article 162(2)(b) and Section 13 of the ELC Act, notwithstanding the existence of the National Environment Tribunal appeal mechanism.
- An applicant under Article 70(3) of the Constitution need not demonstrate that loss or injury has been incurred to seek redress for environmental rights.
- Damages on a cross-petition for losses caused by conservatory orders are awardable only where the application was vexatious or an abuse of court process.
Court orders
#- 1.The Petition is dismissed with costs to the Respondents
- 2.The Cross-Petition is dismissed with an order that each party bear their respective costs of the cross-petition
- 3.Finding of partial resolution of the dispute by consent regarding the location of the 1st Respondent's jetty, subject to orders of review only if the 1st Respondent shifts the location during actual construction from that shown during the court visit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pearl Beach Hotel Limited & another v Kenneth Stanley Haji & 2 others [2017] KEELC 3564 (KLR)", Case Analysis (2017). Constitutional Petition No 172 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3564/eng@2017-01-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.