Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Thika ELC suit, Plaint dated 7th January 2019)· [2019] KEELC 2426 (KLR)

Patrick Njenga Mburu & 98 others v National Environmental Management Authority & 6 others [2019] KEELC 2426 (KLR)

Environment and Land Court
12 July 2019
3,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed it can hear environmental claims despite the tribunal option, dismissing all preliminary objections with costs.

What this practically means

#

Executive summary

#
The 99 Plaintiffs sued various Defendants, seeking a declaration that their right to a clean and healthy environment had been infringed, an environmental restoration order under Section 111(1) of EMCA, a permanent injunction and general damages. The 3rd, 4th, 6th and 7th Defendants filed Notices of Preliminary Objection contending that the Court lacked jurisdiction because challenges to the adequacy of an Environmental Impact Assessment and the issuance of an EIA licence lie with the National Environment Tribunal under EMCA; that only 29 of the 99 Plaintiffs signed the authority to plead; and that no reasonable cause of action was disclosed against some Defendants, warranting striking out under Order 2 Rule 15. The Court first applied the Mukisa Biscuits definition and held that only the jurisdictional issue was a pure point of law; the objections on the authority to plead and cause of action required ascertaining facts and were improperly raised as preliminary objections. On jurisdiction, the Court held that under Section 3(3) of EMCA and Article 162(2)(b), claims for infringement of the entitlement to a clean environment lie before the High Court-status ELC; Section 129 of EMCA does not confer NET jurisdiction over public challenges to the grant of licences; and the multi-issue dispute, which cannot be fragmented among tribunals, falls within the ELC's original jurisdiction. All the preliminary objections were dismissed entirely with costs to the Plaintiffs.

Key legal issues

#
01

Definition of a preliminary objection

Holding

Only the jurisdictional objection qualified; the objections on the authority to plead and cause of action did not, as they require ascertaining facts

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, a preliminary objection must raise a pure point of law on the assumption that all facts pleaded are correct. Jurisdiction satisfies this test. Whether the authority to plead was signed by all 99 Plaintiffs, and whether a reasonable cause of action is disclosed against particular defendants, depend on factual interrogation and evidence, and therefore cannot be raised by way of preliminary objection.

p. 2
02

Whether the ELC or the National Environment Tribunal has jurisdiction over the dispute

Holding

The suit is properly before the ELC in its original jurisdiction; the objections were dismissed

Reasoning

Section 3(3) of EMCA directs persons alleging infringement of the entitlement to a clean and healthy environment to the High Court, and the ELC has the same status under Article 162(2)(b). Section 129 of EMCA covers appeals by licence holders against refusal, conditions or revocation, not public challenges to the grant of licences. The suit raises multiple issues beyond the EIA licence, which the NET cannot determine, so the ELC's original jurisdiction is engaged.

p. 5

Legal principles established

#
  • Jurisdiction is a pure point of law that must be determined first; a court without jurisdiction must down its tools
  • The ELC, having the status of the High Court under Article 162(2)(b), has jurisdiction over claims for infringement of the right to a clean environment and environmental restoration orders under EMCA, notwithstanding the existence of the NET
  • Section 129 of EMCA does not confer on the NET jurisdiction over public challenges to the granting of EIA licences

Court orders

#
  1. 1.All the Defendants' Notices of Preliminary Objection are dismissed entirely
  2. 2.Costs of the Preliminary Objections to the Plaintiffs

Authorities

#

Legislation

  • Environment Management and Coordination Act (EMCA)Section 111(1)
  • Environment Management and Coordination Act (EMCA)Section 3(3)
  • Environment Management and Coordination Act (EMCA)Section 129(1)
  • Environment Management and Coordination Act (EMCA)Sections 1, 2, 3 (Part II)
  • Environment Management and Coordination Act (EMCA)Section 63 (as referenced in Hosea Kiplagat quote)
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 162(3)
  • Civil Procedure RulesOrder 2 Rule 15

Cases cited (11)

  • DT Dobie & Company (Kenya) Limited vs Muchina
    (1982) K.L.R 1
  • Corporate Insurance Company Limited vs Nyali Beach Hotel Ltd
    CA No. 270 of 1996
  • Speaker of the National Assembly vs Njenga Karume
    (1992) eKLR
  • Mukisa Biscuits Manufacturers Ltd. vs West End Distributors Ltd.
    [1969] E.A. 696
  • Avatar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Quick Enterprises Ltd. vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Oraro vs Mbaja
    (2005) 1 KLR 141
  • The Owners of the Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Ndimu vs Ndimu & Another
    (2007) 1 EA 269
  • Hosea Kiplagat & 6 Others vs National Environment Management Authority (Nema) & 2 Others
    (2015)
  • TAIB Investment Limited vs Fahim Salim Said & 5 Others
    (2016) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 3(3) and 111(1) of the Environmental Management and Coordination Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patrick Njenga Mburu & 98 others v National Environmental Management Authority & 6 others [2019] KEELC 2426 (KLR)", Case Analysis (2019). Not stated in judgment (Thika ELC suit, Plaint dated 7th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2426/eng@2019-07-12

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