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ELCOtherConstitutional Petition No 10 of 2018· [2018] KEELC 2930 (KLR)

Mara Siana Conservancey Limited & 2 others v Director General National Environment Management Authority & 4 others [2018] KEELC 2930 (KLR)

Environment and Land Court
18 June 2018
JOJ. M. Onyango
2,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear challenges to NEMA environmental licences, but you cannot run the same fight in two forums at once.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho (J.M Onyango, J) determines a preliminary objection by the 1st Respondent (NEMA) against a Petition challenging the issuance and variation of EIA licence NEMA/EIA/PSL/337 to the 2nd Respondent for the Little Olerai Luxury Camp on parcel Cis-Mara/Siana "A"/116, and the alleged non-disclosure of NEMA's Narok County Director's report contrary to Article 35. The Respondents argued that sections 125-129 of EMCA vest jurisdiction over NEMA licence decisions in the National Environment Tribunal, that the Petitioners had already lodged NET Appeal No. 003 of 2018 on substantially the same issues, rendering the Petition sub-judice and an abuse of process. The Petitioners maintained that Article 162(2) and section 13 of the ELC Act confer expansive original jurisdiction on the ELC and that NET cannot determine constitutional questions, relying on Ken Kisiang'a v Daniel Kiplangat Kirui. The court framed four issues and held that the Petitioners were indeed challenging NEMA's licensing decision, but adopted Munyao J's reasoning that EMCA does not oust the ELC's jurisdiction, especially where constitutional violations under Articles 35, 42, 69 and 70 are alleged, matters beyond NET's mandate to confirm, vary or set aside licences. However, the court agreed that running parallel proceedings before NET and this court was an abuse of process. Declining to dismiss the Petition, the court dismissed the preliminary objection but stayed the suit pending the outcome and/or withdrawal of NET Appeal No. 003 of 2018, so that all issues may be determined once and for all. No costs order was made in the disposition.

Key legal issues

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01

Whether EMCA ousts the ELC's jurisdiction over challenges to NEMA EIA licences

Holding

EMCA does not oust the ELC's jurisdiction; the ELC has expansive original and appellate jurisdiction over environment and land disputes, including constitutional claims arising from EIA licences.

Reasoning

The court adopted Munyao J's reasoning in Ken Kisiang'a that NET was created only to hear appeals from NEMA decisions, whereas Article 162(2)(b) and section 13 of the ELC Act confer on the ELC unlimited original and appellate jurisdiction over environment and land disputes. Constitutional issues such as infringement of the right to a clean environment lie outside NET's limited mandate, so the ELC may entertain the Petition.

p. 4
02

Whether the Petitioners' simultaneous NET appeal and Petition amounts to abuse of process

Holding

Yes - instituting parallel proceedings over the same licence amounts to an abuse of the process of the court, but dismissal was not warranted in the interest of justice.

Reasoning

The court agreed with the Respondents and 4th Interested Party that pursuing the NET appeal and this Petition simultaneously constituted parallel processes and an abuse of process. However, in the interest of justice the court declined to dismiss the Petition, holding that the Petitioners could withdraw the NET appeal before its ruling, after which this court would determine all issues.

p. 4

Legal principles established

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  • The ELC has both original and appellate jurisdiction over environment and land disputes, and EMCA does not oust that jurisdiction; a party aggrieved by a NEMA EIA decision may contest the decision in the ELC as a court of first instance even though an appeal to NET is available.

Court orders

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  1. 1.The 1st Respondent's Preliminary Objection dated 28th May 2018 is dismissed
  2. 2.This suit is stayed pending the outcome and/or withdrawal of NET Appeal No. 003 of 2018

Authorities

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Legislation

  • Constitution of KenyaArticles 35, 40, 42, 43, 47, 69, 70(1), 162(2)(b), 165(5)
  • Environment Management and Coordination Act, Cap 387Sections 7, 9, 58, 125, 126, 127, 129(2), 129(3)
  • Environment and Land Court Act (ELCA)Sections 13(1), 13(2)(a), 13(3)
  • Civil Procedure ActSection 6

Cases cited (2)

  • Kenya Ports Authority v Modern Holdings (E.A) Limited
    2017 eKLR
  • Ken Kisiang'a v Daniel Kiplangat Kirui & 5 Others
    (2015) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act

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, "Mara Siana Conservancey Limited & 2 others v Director General National Environment Management Authority & 4 others [2018] KEELC 2930 (KLR)", Case Analysis (2018). Constitutional Petition No 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2930/eng@2018-06-18

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