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 OutPetition dated 18th May 2020 (ELC, Nairobi)· [2020] KEELC 1741 (KLR)

Symon Wangombe Gathua & 6 other v Attorney General & 6 others [2020] KEELC 1741 (KLR)

Environment and Land Court
8 July 2020
BEB M Eboso
3,590 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out residents' petition against a Kileleshwa petrol station because they had to first use statutory appeal channels like the environment tribunal.

What this practically means

#

Executive summary

#
The petitioners filed a constitutional petition challenging the authorization and development of a petrol station on LR No 209/7233 in Kileleshwa, Nairobi, alleging lack of public participation, failure to respond to objections, and threats to rights under Articles 26, 27, 42, 43, 47, 50 and 53, including the right to a clean and healthy environment. They sought declaratory orders, certiorari quashing the NEMA EIA licence, KURA, NCA and EPRA approvals and the county's change of user, an injunction stopping construction or demolition, and restoration of the plot. The 7th respondent (Lempiras Limited) raised a preliminary objection contending the petitioners had failed to exhaust statutory remedies under sections 129 and 130 of EMCA (appeal to the National Environment Tribunal) and section 61(3) of the Physical and Land Use Planning Act (appeal to the County Physical and Land Use Liaison Committee), and that Article 159 favoured alternative dispute resolution. The Attorney General supported the objection. The petitioners argued that the respondents' secrecy denied them a fair hearing, limitation periods had expired, and that the multifaceted petition warranted the court's jurisdiction under the predominant purpose test. Holding that Kibos Distillers was directly on point and binding, the court (B M Eboso, J) held the primary forums were the NET and the Liaison Committee, declined to exercise original jurisdiction, upheld the preliminary objection, struck out the petition, and directed each party to bear its own costs, noting the petition raised fundamental environmental issues on which the law had only recently been clarified.

Key legal issues

#
01

Whether the court could exercise original jurisdiction over a petition challenging NEMA and county approvals for a petrol station

Holding

No - the petitioners had not exhausted statutory remedies before the NET and the County Physical and Land Use Liaison Committee; the preliminary objection was upheld and the petition struck out

Reasoning

The court held the petition in substance challenged the EIA licence and development approvals. EMCA vests jurisdiction over NEMA decisions in the NET, with appellate jurisdiction in the ELC; the Physical and Land Use Planning Act vests land use dispute jurisdiction in the Liaison Committee. Relying on Kibos Distillers and Okal v Telkom, multifaceted drafting cannot confer jurisdiction, and statutory mechanisms must be exhausted. No distinction from binding precedent was available.

p. 5

Legal principles established

#
  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before invoking the court's jurisdiction
  • A multifaceted petition does not confer jurisdiction on a court where a specialized tribunal has statutory jurisdiction
  • A party must exhaust statutory dispute resolution mechanisms before resorting to a constitutional petition
  • Lack of knowledge of a licensing decision does not divest a tribunal of jurisdiction

Court orders

#
  1. 1.The 7th Respondent's Preliminary Objection dated 5/6/2020 is upheld and the petition herein is struck out.
  2. 2.Parties shall bear their respective costs of the petition.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 26, 27, 42, 43, 47, 50, 53, 159(1), 159(2)(c), 48, 50
  • Environmental Management and Co-ordination Act (EMCA)Sections 129, 129(2), 129(3), 130(1), 130(5)
  • Environment (Impact Assessment and Audit) Regulations, 2003Regulation 46
  • Physical Planning Act (2019) / Physical and Land Use Planning ActSections 61(3), 61(4), 75(2)(d), 15, 19, 38

Cases cited (10)

  • Mutanga Tea & Coffee Co Ltd v Shikara Ltd & Another
  • Orange Democratic Movement v Yusuf Ali Mohamed & 5 Others
    [2018] eKLR
  • Deepak Harakch & another v Anamol Ltd & 4 Others
    [2018] eKLR
  • R v National Environment Management Authority ex-parte Sound Equipment Limited
    [2011] eKLR
  • Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others
    [2020] eKLR
  • Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others
    [2017] eKLR
  • David Mereka & another v Director General - Nema & 2 others
    [2020] eKLR
  • Ken Kasinga v Daniel Kiplagat Kirui & 5 others
    [2015] eKLR
  • Samuel Kamau Macharia and another v Kenya Commercial Bank Ltd and 2 Others
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution; court declined to exercise it on exhaustion grounds

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Symon Wangombe Gathua & 6 other v Attorney General & 6 others [2020] KEELC 1741 (KLR)", Case Analysis (2020). Petition dated 18th May 2020 (ELC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1741/eng@2020-07-08

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