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ELCPartially Allowed· [2020] KEELC 748 (KLR)

Lydia Kaguna Japheth & 2 others v Mbesa Investments Limited & 2 others [2020] KEELC 748 (KLR)

Environment and Land Court
19 October 2020
CYC.K. Yano
6,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out a residents' environmental petition, keeping constitutional claims alive while sending the EIA licence challenge to the environmental tribunal.

What this practically means

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Executive summary

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The 1st Respondent, Mbesa Investment Limited, raised a preliminary objection dated 22nd July 2020 against a constitutional petition filed by neighbouring property owners challenging its development project on properties LR. NO.MN/I/5503, MN/1/5504 and MN/1/3412 in Mombasa. The Respondent argued that the Environment and Land Court lacked jurisdiction because the issues, particularly the challenge to the Environmental Impact Assessment (EIA) licences, fell within the original jurisdiction of the National Environment Tribunal (NET) under Sections 129 and 130 of EMCA, and sought a strike-out or stay. The petitioners countered that most issues - constitutional violations of the rights to a clean and healthy environment, fair administrative action, equal protection, and public participation - were outside the NET's mandate and reserved for the High Court and courts of equal status under Articles 165 and 162(2)(b) of the Constitution. They relied on the Supreme Court's decision in Benson Ambuti Adega v Kibos Distillers to argue that even if the EIA licence issue belonged to the NET, the remedy was referral of that issue only, not strike-out of the whole petition. The court first held that the objection's reference to a 'plaint' rather than a 'petition' was a curable technicality under Article 159(2)(d). Guided by the binding Supreme Court decision in Kibos Distillers, the court found the petition multifaceted: it retained jurisdiction over the constitutional issues but referred the EIA licence dispute to the NET. The preliminary objection seeking strike-out was dismissed with no order as to costs, delivered electronically at Mombasa on 19th October 2020 due to the COVID-19 pandemic.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over the petition given the existence of the National Environment Tribunal

Holding

The court has jurisdiction over the constitutional issues raised (clean environment, fair administrative action, equal protection, public participation), but the EIA licence issue belongs to the NET

Reasoning

Guided by the binding Supreme Court decision in Benson Ambuti Adega v Kibos Distillers, the court found the petition multifaceted: some issues are properly for the ELC under Article 162(2)(b) and Sections 4 and 13 of the ELC Act, while the challenge to the EIA licence falls within the NET's original jurisdiction under Section 129 of EMCA. The appropriate relief is a partial referral, not a strike-out.

p. 6
02

Whether the preliminary objection fails because it referred to a 'plaint' instead of a 'petition'

Holding

No - the mis-description is a procedural technicality that does not go to the substance of the matter

Reasoning

The court acknowledged the 1st Respondent's counsel made a technical mistake in referring to a plaint when proceedings were commenced by petition. However, under Article 159(2)(d) of the Constitution, courts must not be blindly enslaved by procedural technicalities; the reference to a plaint was technical and did not affect the substance of the jurisdictional objection.

p. 4

Legal principles established

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  • Jurisdiction is everything; a court without jurisdiction must down its tools
  • Where a petition is multifaceted, the court should reserve constitutional issues pending determination of EIA licence issues by the Tribunal rather than strike out the petition
  • Courts should not have undue regard to procedural technicalities

Court orders

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  1. 1.The preliminary objection raised by the 1st Respondent seeking to strike out the suit is dismissed with no order as to costs
  2. 2.The dispute touching on the legality of the EIA license is referred to the National Environment Tribunal
  3. 3.The rest of the issues are retained for determination by this court alongside any matter that may be appealed, if at all

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 169(1)(d)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Articles 42 and 70
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Articles 165(3)(b) and 165(5)(b)
  • Constitution of Kenya, 2010Article 50
  • Environmental Management and Coordination Act, 1999 (EMCA)Sections 3(1), 3(3), 12(1), 58, 59, 125, 129, 130
  • Environment and Land Court Act, No. 19 of 2011Sections 4 and 13
  • Physical Planning ActSections 15, 19 and 38
  • Physical and Land Use Planning Act, 2019Not specified
  • Environmental (Impact and Audit) Regulations, 2013Regulations 17(1) & (2) and 21
  • Integrated National Land Use GuidelinesNot specified

Cases cited (16)

  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Ltd
    (1969) EA
  • County Government of Migori –v- I.N. B Management IT Consulting Limited
    (2019) eKLR
  • Hon. (Lady) Justice Kalpana H. Rawal –v- Judicial Service Commission & Others
    Supreme Court of Kenya Civil Application No.11 of 2016
  • Ocheja Emmanuel Dangama –v- Hon. Atai Aidoko Aliuswan & 4 Others
    Supreme Case No. 11 of 2012
  • Owners of the Motor Vessel “Lillian S” –v- Caltex Oil (Kenya) Ltd
    (1989) I KLR
  • Samuel Kamau Macharia & Another –v- Kenya Commercial Bank & 2 Others
    Application No.2 of 2011
  • Speaker of the National Assembly –v- James Njenga Karume
    (1992) eKLR
  • Benard Murage –v- Fine Serve Africa Ltd & 3 Others
    (2015) eKLR
  • Kibos Distillers Ltd & 4 Others –v- Benson Ambuti Adega & 3 Others
    (2020) eKLR
  • Ken Kasinga –v- Daniel Kiplagat Kirui & 5 Others
    (2015) eKLR
  • Benson Ambuti Adega & 2 Others –v- Kibos Distillers Limited & 5 Others
    (2020) eKLR
  • Getrude Mukoya Mwenda & Others –v- Cabinet Secretary Ministry of Infrastructure Housing & Urban Development
    (2020) eKLR
  • Gedion Kibundu & 2 Others –v- Kenya Ports Authority & 3 Others
    (2020) eKLR
  • Dominic G. Nganga & Another –v- Director General National Environment Management Authority & 4 Others
    (2020) eKLR
  • KM & 9 Others –v- Attorney General & 7 Others
    (2020) eKLR
  • Patrick J. O. Otieno –v- Lake Victoria South Water Services Board
    (2020) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 4 and 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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

Cite this brief

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Cite this brief

Caselaw, "Lydia Kaguna Japheth & 2 others v Mbesa Investments Limited & 2 others [2020] KEELC 748 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/748/eng@2020-10-19

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