Philip Kiptanui Rugut & 2 others v National Environment Management Authority & 3 others [2019] KEELC 2402 (KLR)

The court considered the reliefs sought, including declarations of constitutional violations and cancellation of licences, and found they cannot all be granted by the Tribunal. The EIA licence was issued in March 2017, so the 60-day period to appeal to the Tribunal under section 129 EMCA had lapsed, and rule 7 of the NET procedure rules prohibits extension of time. EMCA therefore could not provide an adequate and efficacious remedy, and the proper forum is the ELC with unlimited original and appellate jurisdiction over environment and land matters.

Relying on Nyandoche Ibere Cooperative Society v County Government of Kisii, which cited Kenya Bus Service Ltd, the court adopted Majanja J's finding that section 13A of the GPA was enacted when there was only one national government and was never amended to conform with the 2010 Constitution; it diminishes the citizen's ability to seek relief against the Government and violates article 48. The court fully associated itself with those decisions and held non-compliance does not render the Petition incurably defective.

The court adopted the classic Mukisa Biscuit formulation: a preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if the exercise of judicial discretion is sought. Viewed against that definition, only two of the grounds in the Notice of Preliminary Objection qualified: the question of jurisdiction and whether failure to comply with section 13A of the Government Proceedings Act renders the Petition fatally defective.