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ELCDismissedNot stated in the excerpt (Petition dated 4th September, 2017)· [2019] KEELC 1896 (KLR)

Justus Kalii Makau & 3 others v Linnet Achieng Amalla & 2 others [2019] KEELC 1896 (KLR)

Environment and Land Court
26 July 2019
OAO. A. Angote
2,179 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed residents can sue over environmental harm without proving injury, even when other tribunals exist.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O.A. Angote, J) determined a Notice of Preliminary Objection dated 27th September 2017 filed by the 1st Respondent in a Petition dated 4th September 2017. The 1st Respondent objected that the court lacked jurisdiction because the Application was pending before the National Environment Tribunal as NET Appeal No. 207 of 2017 and did not satisfy Sections 7(1) and 9(2) of the Fair Administrative Action Act; that the Petitioners lacked locus standi to sue in public interest; and that the Petition was vexatious, frivolous and an abuse of process. Counsel for the 1st Respondent relied on the Physical Planning Act's dispute-resolution mechanism, including appeals to the Liaison Committee, and on the Karume principle that prescribed procedures must be strictly followed. The Petitioners, residents of Syokimau complaining of construction of multiple dwelling units in a single-dwelling zone, environmental, health and sanitation hazards, irregular issuance of the EIA licence and disregard of court orders, argued that their claims traversed the tribunals' mandates and that Articles 22, 23, 70 and 258 conferred expansive standing. The court held that the Liaison Committees and the National Environmental Tribunal have limited, time-bound jurisdictions (60 days) and could not comprehensively determine the multiple cross-cutting issues raised; consolidating them before the Environment and Land Court avoided forum shopping and conflicting decisions. On standing, Article 70(3) requires no demonstration of loss or injury, and Article 22 permits suits in the public interest. The preliminary objection was dismissed with costs.

Key legal issues

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01

Whether alternative remedies before the Liaison Committee and National Environment Tribunal oust the court's jurisdiction

Holding

No - the issues raised in the Petition are multiple and cross-cutting and exceed the limited, time-bound mandates of those tribunals

Reasoning

The Liaison Committee's jurisdiction is restricted to appeals over physical development decisions, and the National Environmental Tribunal only hears appeals on EIA licences, both within 60 days. The Petition raises zoning, environmental, health, sanitation and contempt issues. Forcing the Petitioners to litigate before different tribunals would cause forum shopping and conflicting decisions, which the establishment of the Environment and Land Court was meant to resolve.

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02

Whether the Petitioners have locus standi to bring the Petition in public interest

Holding

Yes - under Articles 22, 70 and 258 of the Constitution no demonstration of loss or injury is required

Reasoning

The Petition alleges infringement or threat of the right to a clean and healthy environment. Article 70(3) removes the requirement to demonstrate loss or injury, and Article 22 permits filing in individual capacities, in the interest of a group or class of persons, or in the public interest. The objection on standing was therefore unfounded.

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Legal principles established

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  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • The Environment and Land Court is the only court with comprehensive jurisdiction over cross-cutting environment and land issues that specialized tribunals with limited, time-bound mandates cannot handle
  • Under Article 70(3) of the Constitution, a person alleging a threat to the right to a clean and healthy environment need not demonstrate loss or injury

Court orders

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  1. 1.The Notice of Preliminary Objection dated 27th September, 2017 is dismissed with costs

Authorities

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Legislation

  • Fair Administrative Action ActSections 7(1) and 9(2)
  • Physical Planning ActSections 7, 10(2)(e), 13(1), 33 and 38
  • Environmental Management and Co-ordination ActSection 129
  • Environmental (Impact Assessment and Audit) Regulations
  • Constitution of KenyaArticles 10, 22, 23, 42, 43, 47, 48, 69, 70 and 258

Cases cited (1)

  • Speaker of the National Assembly vs. Hon. James Njenga Karume
    (2008) 1 KLR, 425
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (read with Articles 22, 23, 70 and 258 as invoked in the submissions)

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, "Justus Kalii Makau & 3 others v Linnet Achieng Amalla & 2 others [2019] KEELC 1896 (KLR)", Case Analysis (2019). Not stated in the excerpt (Petition dated 4th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1896/eng@2019-07-26

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