Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in the judgment· [2019] KEELC 2599 (KLR)

Orata International Limited v National Environment Management Authority [2019] KEELC 2599 (KLR)

Environment and Land Court
2 July 2019
COChristine Ochieng
1,610 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kajiado court struck out a company's bid to challenge a NEMA closure order, ruling it must first appeal to the National Environment Tribunal.

What this practically means

#

Executive summary

#
The Applicant's Chamber Summons dated 12th March 2019 sought leave to institute judicial review proceedings to quash an environmental restoration order issued by NEMA (the Respondent) on 5th March 2019, directing closure within 24 hours of the Applicant's Limestone-Terrazo Products Crushing Factory at Kitengela until it was relocated and compliant with sections 143(a) and (b) of EMCA. The Applicant complained that it was not accorded a hearing contrary to the Fair Administrative Action Act. The Respondent filed a Notice of Preliminary Objection on 26th March 2019 contending the suit was barred, defective and offended section 129 of EMCA, which channels appeals against restoration and improvement orders to the National Environment Tribunal within sixty days. The court framed two issues. Relying on section 129 of EMCA, section 13 of the Environment and Land Court Act, and authorities including the Motor Vessel Lilian 'S', Matanga Tea & Coffee, Joseph Owino v NEMA and the Court of Appeal decision in National Environmental Tribunal v Overlook Management, the court held that although the ELC has original and appellate jurisdiction over environment and land matters, the Applicant must first pursue the established statutory appeal to the Tribunal. The court noted the Applicant had been aware of the complaints since a 2016 improvement order and had undertaken to relocate to Athi River. The second issue on leave was not reached. The court upheld the preliminary objection, struck out the application dated 12th March 2019, directed the Applicant to lodge an appeal with the NET, and ordered costs to be in the cause.

Key legal issues

#
01

Whether the preliminary objection on section 129 of EMCA is sustainable

Holding

Upheld - the Applicant must first appeal to the National Environment Tribunal before an appeal lies to the ELC

Reasoning

Section 129(1)(e) of EMCA grants a person aggrieved by an environmental restoration order a right of appeal to the Tribunal within sixty days. Section 13 of the ELC Act, though conferring original and appellate jurisdiction on environment and land matters, does not displace the statutory appeal mechanism. The Applicant, aware of the complaints since 2016 and granted relocation time, cannot bypass the Tribunal. Authorities confirm constitutional redress is only available where statutory remedies are inadequate.

p. 3
02

Whether leave should be granted to institute judicial review proceedings

Holding

Refused - the court declined to determine this issue after upholding the preliminary objection

Reasoning

Having found the application barred by the statutory appeal route to the NET, the court found it unnecessary to address the second framed issue on whether leave to institute judicial review should be granted. The application was struck out on jurisdictional grounds alone.

p. 3

Legal principles established

#
  • Where a statute establishes a specialized tribunal for a dispute, a party must exhaust that remedy before resorting to the court or constitutional redress
  • Jurisdiction must be raised at the earliest opportunity and determines the court's power to proceed
  • A person aggrieved by an environmental restoration or improvement order imposed by NEMA has a right of appeal to the National Environment Tribunal within sixty days

Court orders

#
  1. 1.The Preliminary Objection dated 26th March 2019 is upheld
  2. 2.The application dated 12th March 2019 is struck out
  3. 3.Costs will be in the cause

Authorities

#

Legislation

  • Environmental Management and Coordination ActSection 129(1)(e)
  • Environmental Management and Coordination ActSection 129(2)
  • Environmental Management and Coordination ActSection 143(a) & (b)
  • Environment and Land Court ActSection 13(1)
  • Environment and Land Court ActSection 13(2)(c) & (d)
  • Fair Administrative Action ActNot specified
  • Constitution of KenyaArticle 162(2)(b); Article 165

Cases cited (10)

  • PRAVIN GALOT V CHIEF MAGISTRATES COURT AT MILIMANI LAW COURTS
    Judicial Review No. 622 of 2017
  • TAIB A. TAIB VS THE MINISTER FOR LOCAL GOVERNMENT & OTHERS
    Mombasa HC Misc A No. 158 of 2006
  • JOSEPH OWINO & ANOTHER VS NEMA & AFRICA PLYSACK LTD
    (2014) eKLR
  • ISAAC NGUGI VS NAIROBI HOSPITAL & ANOTHER
    (2013) eKLR
  • RICH PRODUCTIONS LTD KENYA PIPELINE LIMITED AND PUBLIC PROCUREMENT OVERSIGHT AUTHORITY
    (2014) eKLR
  • DAMIAN BELFONTE VS THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
    CA No. 84 of 2004
  • THE SPEAKER OF THE NATIONAL ASSEMBLY Vs JAMES NJENGA KARUME
    CA Civil Appeal No. 92 of 1992 (NBI)
  • The Owners of the Motor Vessel Lilian 'S' Vs. Caltex Kenya Limited
    (1989) KLR 1
  • Matanga Tea & Coffee Company Limited Vs. Shikara Limited & Anor
    (2015) eKLR
  • National Environmental Tribunal v Overlook Management Limited & 5 others
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Orata International Limited v National Environment Management Authority [2019] KEELC 2599 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2599/eng@2019-07-02

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