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ELCDismissedApplication dated 17th March, 2017· [2018] KEELC 4676 (KLR)

Sammy Ngugi Gikonyo & 7 others v Daniel Munyao Mule & 3 others [2018] KEELC 4676 (KLR)

Environment and Land Court
26 January 2018
2,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Residents opposing a Lukenya quarry went to court too early: they must first let NEMA decide on the EIA licence, then appeal to the National Environment Tribunal if unhappy.

What this practically means

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Executive summary

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The Plaintiffs, suing on behalf of residents of Machakos Town Block 3, Lukenya, sought interim orders restraining the 1st, 2nd and 3rd Defendants from using Mavoko Town Block 3/4444 as a mining ground for ballast and building stones, and restraining the 4th Defendant (NEMA) from issuing an Environmental Impact Assessment licence for the proposed quarrying, pending the hearing of the main suit. They alleged noise pollution, lack of change of user, absence of an EIA licence, and that mining had commenced without approvals. The 1st to 3rd Defendants filed a preliminary objection contending that under Sections 125 and 129 of EMCA, the dispute lay with the National Environment Tribunal, and argued they had followed due process in obtaining change of user and were still awaiting the EIA licence decision. The court framed jurisdiction as the first issue. It held that the Tribunal's jurisdiction under Section 129 covers disputes on issuance of EIA licences and that, since NEMA had not yet decided on the EIA Report, the Plaintiffs could not have appealed to the Tribunal - but equally could not ask the court to restrain NEMA from issuing a licence. The court applied the Court of Appeal's decision in R vs. National Environment Management Authority on exhausting statutory dispute mechanisms. It found no evidence quarrying was ongoing, leaving open jurisdiction had unlicensed activities commenced. Whether the change of user was procedural was left for trial. The application was found premature and dismissed with costs.

Key legal issues

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01

Whether the ELC has jurisdiction to entertain a challenge to the issuance of an EIA licence where no licence decision has yet been made

Holding

The court lacks original jurisdiction over disputes relating to issuance of EIA licences; the National Environment Tribunal is the primary forum, and plaintiffs must raise their issues with NEMA and appeal to the Tribunal if dissatisfied

Reasoning

Section 125 of EMCA establishes the National Environment Tribunal and Section 129 confers on it appellate jurisdiction over licence decisions. Since NEMA had not yet decided on the EIA Report, there was no decision to appeal. The court cannot be moved to restrain NEMA from issuing a licence in these proceedings; the proper course is to raise the issues with NEMA and appeal to the Tribunal if dissatisfied.

p. 5
02

Whether the court has jurisdiction to issue an injunction where unlicensed quarrying has allegedly commenced

Holding

The court would have jurisdiction to enjoin unlicensed quarrying activities already commenced, but the Plaintiffs adduced no evidence that such activities were ongoing

Reasoning

The court held that if the Defendants had commenced quarrying before obtaining a licence, the court could issue an injunctive order. However, the few photographs annexed to the Plaintiffs' affidavit did not show the alleged activities were ongoing, so no evidential basis existed for interim relief on that basis.

p. 5
03

Whether the change of user of the suit land was procedurally obtained

Holding

Whether the change of user was done procedurally can only be determined at trial

Reasoning

The Defendants deponed that they followed due process, publishing notices in two daily newspapers and obtaining development permission on 6th February, 2017. The Plaintiffs disputed this, pointing to an annexture suggesting the change of user was for a petrol station. The court found this factual dispute required determination at the trial of the main suit, not on the interlocutory application.

p. 5

Legal principles established

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  • Where the Constitution or a statute has established a dispute resolution mechanism or procedure for the resolution of a dispute, that process must be followed (as held by the Court of Appeal in R vs. National Environment Management Authority (2011) eKLR)
  • The National Environment Tribunal has jurisdiction over disputes relating to the issuance, refusal, variation or revocation of Environmental Impact Assessment licences, and the Environment and Land Court is divested of original jurisdiction over such disputes until the Tribunal has decided

Court orders

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  1. 1.The Application dated 17th March, 2017 was prematurely filed and the same is dismissed
  2. 2.Costs of the Application awarded to the Defendants

Authorities

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Legislation

  • Environmental Management and Co-ordination Act, 1999 (EMCA)Section 125
  • Environmental Management and Co-ordination Act, 1999 (EMCA)Section 129
  • Environmental Management and Co-ordination Act, 1999 (EMCA)Section 126(2)
  • The Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009null

Cases cited (1)

  • R vs. National Environment Management Authority
    (2011) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction considered against Sections 125 and 129 of the Environmental Management and Co-ordination Act, 1999 (EMCA)

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, "Sammy Ngugi Gikonyo & 7 others v Daniel Munyao Mule & 3 others [2018] KEELC 4676 (KLR)", Case Analysis (2018). Application dated 17th March, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4676/eng@2018-01-26

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