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ELCDismissedELC Petition No. 18 of 2017· [2019] KEELC 1037 (KLR)

County Government of Kakamega v Josephat Shikoro Shijenje [2019] KEELC 1037 (KLR)

Environment and Land Court
5 November 2019
NMN.A. Matheka
6,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kakamega's county government lost its challenge to a fuel station because it lacked evidence and never involved NEMA, the licence issuer.

What this practically means

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Executive summary

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The County Government of Kakamega petitioned the Environment and Land Court seeking a declaration that Josephat Shikoro Shijenje's fuel service station on title Kakamega/Municipality Block IV/487 was illegal and infringed the right to a clean and healthy environment, together with permanent injunctions restraining construction and petroleum retail operations and a mandatory injunction to restore the land. The petitioner alleged absence of a valid EIA licence, construction and petroleum licences, breach of physical planning advertisement rules, hazardous proximity to residential dwellings and a maximum security prison, and want of change of user. The respondent, registered proprietor since 2008 and a director of Jupiter Oil Limited which leased and developed the plot, denied the allegations, produced documentary evidence of change of user, development permission, a NEMA EIA licence, gazette and newspaper advertisements, physical planning compliance, Ministry of Lands approval, an Energy Regulatory Commission petroleum business licence and Ministry of Roads authority, and filed a cross petition seeking declarations of lack of jurisdiction, discrimination and estoppel, plus compensation exceeding Ksh. 100,000,000/=. The court first held it had discretion to entertain the constitutional petition despite alternative statutory remedies, applying Moffat Kamau v Aelous Kenya Limited. On the merits it found all approvals were obtained, the petitioner had knowledge of the development for over a year and had itself approved the plans, no technical evidence was adduced, and NEMA was never joined. The petition was dismissed for want of proof and non-joinder; the cross petition was dismissed for want of evidence of expenditure or discrimination. The court directed the petitioner to pursue any review of the NEMA licence through NEMA itself. Each party was ordered to bear its own costs.

Key legal issues

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01

Availability of the constitutional avenue despite alternative statutory remedies

Holding

The court exercised its discretion to entertain the petition notwithstanding alternative remedies under the Physical Planning Act.

Reasoning

The respondent argued the petitioner should have used statutory channels such as section 41(6) of the Physical Planning Act. Relying on Moffat Kamau v Aelous Kenya Limited, the court held that alternative remedies do not mandatorily bar a constitutional petition and, given unique features including changed ground circumstances, entertained the petition.

p. 5
02

Whether the respondent's construction complied with the law

Holding

The court found the respondent obtained all development permissions, licences and approvals from all relevant authorities, including NEMA, the defunct Municipal Council of Kakamega and the Energy Regulatory Commission.

Reasoning

The respondent produced documentary evidence of change of user, development permission, EIA report and NEMA licence, gazette and newspaper advertisements, physical planning compliance certificate, Ministry of Lands approval, petroleum business licence and Ministry of Roads authority. The petitioner adduced no technical evidence and NEMA was never enjoined to challenge its licence.

p. 6
03

Whether the petitioner was entitled to the reliefs sought

Holding

The petition was dismissed for failure to prove the case on a balance of probabilities and for non-joinder of NEMA.

Reasoning

The petitioner failed to adduce technical evidence to support allegations of illegality and hazard. NEMA, which issued the licence, was not joined to provide technical expertise or defend it, and the petitioner itself had approved the development plans, having had knowledge of the development for over a year.

p. 6
04

The cross-petition claims of discrimination, estoppel and compensation

Holding

The cross petition was dismissed for want of evidence of the alleged expenditure and discrimination.

Reasoning

The respondent alleged malicious prosecution of the suit, discrimination vis-à-vis other petrol stations, estoppel and claims over Ksh. 100,000,000/= injected into the project, but adduced no evidence to substantiate the expenditure or the alleged discriminatory conduct by the petitioner.

p. 6
05

Proper forum for reviewing the NEMA licence in light of changed circumstances

Holding

The petitioner should pursue any review through NEMA, which may cancel the licence and require a fresh EIA where the project has substantially changed or poses unforeseen environmental threat.

Reasoning

Relying on Regulation 28 of the EIA Regulations and Moffat Kamau, the court held NEMA has the mandate to determine whether changes go to the root of the project and, if so, cancel the existing licence and require a new EIA; a prior ruling by Justice Chitembwe had already directed a second project report on the guest rooms.

p. 7

Legal principles established

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  • A constitutional petition may be entertained notwithstanding the existence of alternative statutory remedies, at the court's discretion where there are unique features
  • Where circumstances of a licensed project substantially change, NEMA has the mandate to re-examine, vary or cancel the licence and require a fresh EIA
  • A petitioner alleging violation of the right to a clean and healthy environment need not demonstrate loss or injury

Court orders

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  1. 1.The petition is dismissed
  2. 2.The cross petition is dismissed
  3. 3.The petitioner is directed to follow up with NEMA any change of circumstances with a view to relooking at the licence issued and taking appropriate action
  4. 4.Each party is to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20(1), 20(2), 22(1), 23, 23(3), 24, 42, 69, 70, 159(1)(e)
  • Environmental Management & Coordination Act (EMCA)not specified
  • Environmental Management (Environmental Impact Assessment and Audit) Regulations, 2013Regulations 24 and 28
  • Energy ActSection 80(1)
  • Energy (Retail Facility Construction and Licensing) Regulations, 2013 (Legal Notice No. 7 of 2013)Regulation 8
  • Physical Planning ActSections 36, 41, 41(6), 49, 50, 52
  • Physical Planning (Building and Development) Rules, 1998not specified

Cases cited (3)

  • National Environment Management Authority & Another vs Gerick Kenya Limited
    (2016) eKLR
  • Judy Watiri Wambugu vs Chief Land Registrar & Others, Nakuru High Court Constitutional Petition No. 49 of 2012
    null
  • Moffat Kamau & 9 others v Aelous Kenya Limited & 9 others
    (2016) eKLR
Jurisdiction invoked
Article 22(1) and Article 70 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights and environmental rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "County Government of Kakamega v Josephat Shikoro Shijenje [2019] KEELC 1037 (KLR)", Case Analysis (2019). ELC Petition No. 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1037/eng@2019-11-05

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