Mahmood Shariff Ali & 10 others v Safaricom Limited [2019] KEELC 2080 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC has original jurisdiction over a complaint regarding authorization by NEMA and the Communications Authority of a base trans-receiver station
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
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.
Whether a suit ignoring statutory alternative dispute resolution mechanisms is an abuse of court process fit for striking out
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
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.
Legal principles established
#- 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
#- 1.The Defendant's Notice of Motion dated 3rd August 2018 is merited and allowed
- 2.The Plaintiffs' suit is struck out
- 3.Costs of the suit and the application awarded to the Defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.