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ELCStruck OutNot stated in the judgment (Notice of Motion dated 3rd August 2018 in the plaint dated 15th September 2017)· [2019] KEELC 2080 (KLR)

Mahmood Shariff Ali & 10 others v Safaricom Limited [2019] KEELC 2080 (KLR)

Environment and Land Court of Kenya
29 July 2019
2,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa's Environment and Land Court threw out residents' suit against a phone mast because they skipped the tribunals meant to hear such complaints first.

What this practically means

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Executive summary

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The Defendant applied by Notice of Motion dated 3rd August 2018 to strike out the Plaintiffs' suit filed 15th September 2017, which sought a permanent injunction restraining erection of a base trans-receiver station on MOMBASA/BLOCK XX/139 at Mwembe Tayari, Mombasa, plus general damages. The Defendant, through Mr. Kongere, argued that the Plaintiffs' real grievance was the authorization granted by the Communications Authority of Kenya and NEMA, and that Section 102A of the Kenya Information and Communications Act and Section 129 of EMCA required such grievances to be lodged with the Communications and Multimedia Appeals Tribunal and the National Environment Tribunal respectively, leaving the Environment and Land Court only appellate jurisdiction. He relied on Mutanga Tea & Coffee Company Ltd v Shikara Limited. The Plaintiffs, through Ms. Maiga, opposed via Grounds of Opposition and submissions, arguing the court had original and exclusive jurisdiction under Section 13(3) of the Environment and Land Court Act, that Section 102A KICA confines complaints to journalists, and that the Plaintiffs faced health risks from radiation. Citing Owners of Motor Vessel 'Lilian S' v Caltex Oil on jurisdiction, and adopting the Court of Appeal's holding in Mutanga Tea (which itself endorsed Speaker of National Assembly v Karume) that statutorily prescribed dispute resolution mechanisms must be strictly followed, the court held the suit was improperly before it. The Notice of Motion was allowed and the Plaintiffs' suit was struck out with costs to the Defendant, on 29th July 2019.

Key legal issues

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01

Whether the ELC has original jurisdiction over a complaint regarding authorization by NEMA and the Communications Authority of a base trans-receiver station

Holding

The ELC lacks original jurisdiction; the Plaintiffs should have gone to the National Environment Tribunal under Section 129 EMCA and/or the Communications and Multimedia Appeals Tribunal under Section 102A KICA, with appeals lying to this court

Reasoning

The dispute centred on safety concerns over radiation from an installation licensed by NEMA after an EIA. Section 129(2) EMCA gives an aggrieved person a right of appeal to the National Environment Tribunal, whose decision is appealable to the ELC under Section 130. Section 102A KICA similarly requires complaints against CA decisions to go to the Communications and Multimedia Appeals Tribunal. Following Mutanga Tea, binding on the court, where a statute prescribes a specific dispute resolution mechanism it must be strictly followed, so the suit bypassing the tribunals was improperly before the court.

p. 3
02

Whether a suit ignoring statutory alternative dispute resolution mechanisms is an abuse of court process fit for striking out

Holding

Yes; the suit was struck out under Order 2 Rule 15(1)(b) and (d) as improperly invoking the court's original jurisdiction where statutory mechanisms existed

Reasoning

The Court of Appeal in Mutanga Tea approved striking out suits that invoke the High Court's original jurisdiction where relevant statutes prescribe alternative mechanisms and afford the aggrieved party access to the High Court by way of appeal. To hold otherwise would defeat the constitutional objective behind Article 159(2)(c) and the raison d'etre of the statutory mechanisms. The Defendant's application was brought under Order 2 Rule 15 and, the court being minded to strike out on jurisdiction, no supporting affidavit was required.

p. 3

Legal principles established

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  • Where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, an aggrieved party must resort to that mechanism first before invoking the inherent jurisdiction of the High Court
  • A court without jurisdiction must terminate the proceedings forthwith

Court orders

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  1. 1.The Defendant's Notice of Motion dated 3rd August 2018 is merited and allowed
  2. 2.The Plaintiffs' suit is struck out
  3. 3.Costs of the suit and the application awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure Rules (Act)Sections 1A, 1B, 3 & 3A
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(b) and (d); Order 2 Rule 15(3); Order 51 Rule 4
  • Kenya Information & Communications Act No. 2 of 1998Sections 102, 102A
  • Environmental Management and Co-ordination Act, 1999Sections 58 (and Second Schedule), 125, 129 (including 129(2)), 130; Section 3(3) as cited by Plaintiffs
  • Environmental (Impact Assessment and Audit) Regulations, 2003consultation requirements
  • Environment and Land Court ActSection 13(3)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (5)

  • Mutanga Tea & Coffee Company Ltd –v- Shikara Limited & Another
    (2015) eKLR
  • Republic –v- National Environmental Management Authority
    (2011) eKLR
  • Owners of Motor Vessel “Lilian S” –v- Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Speaker of the National Assembly –v- Karume
    null
  • Kones –v- Republic & Another ex-parte Kimani Wa Nyoike & 4 Others
    (2008) 3 KLR (ER) 296
Jurisdiction invoked
Environment and Land Court Act, Section 13 (as argued); Civil Procedure Rules Sections 1A, 1B, 3 & 3A and Order 2 Rule 15(1)(b) and (d)

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, "Mahmood Shariff Ali & 10 others v Safaricom Limited [2019] KEELC 2080 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 3rd August 2018 in the plaint dated 15th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2080/eng@2019-07-29

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