Patrick Njenga Mburu & 98 others v National Environmental Management Authority & 6 others [2019] KEELC 2426 (KLR)
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
#Key legal issues
#Definition of a preliminary objection
Only the jurisdictional objection qualified; the objections on the authority to plead and cause of action did not, as they require ascertaining facts
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.
Whether the ELC or the National Environment Tribunal has jurisdiction over the dispute
The suit is properly before the ELC in its original jurisdiction; the objections were dismissed
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.
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.All the Defendants' Notices of Preliminary Objection are dismissed entirely
- 2.Costs of the Preliminary Objections to the Plaintiffs
- 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.