Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2020] KEELC 3449 (KLR)

Gedion Kibindu & 20 others v Kenya Ports Authority & 3 others [2020] KEELC 3449 (KLR)

Environment and Land Court
23 January 2020
1,405 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

#

Kenya's Environment and Land Court can hear environmental rights petitions directly — you don't have to go to the National Environmental Tribunal first.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determined a preliminary objection dated 22nd October 2019 by the 1st Respondent challenging the court's original jurisdiction. The 1st Respondent argued that the petition, which concerns the procurement and validity of Environmental Impact Assessment License No. 0001206 issued by NEMA on 7th August 2007, ought first to have gone to the National Environmental Tribunal under Sections 129 and 130 of EMCA, and that the petition violated the exhaustion doctrine. Counsel relied on Owners of Motor Vessel 'Lilian S', the Speaker v Karume line of authority, and Mutanga Tea on exhaustion. The 2nd and 4th Respondents supported the objection. The Petitioners, relying on Mohamed Ali Baadi, contended that the dispute raised constitutional issues transcending NET's statutory mandate, including violation of the Article 42 right to a clean and healthy environment. The court held that while NET is established under Section 125(1) of EMCA to hear appeals from NEMA decisions, the ELC has original and appellate jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act over all disputes relating to environment and land, and is the only court mandated to hear constitutional petitions on environmental rights. NET does not hear constitutional petitions. The preliminary objection was accordingly dismissed with no order as to costs, allowing the petition to proceed.

Key legal issues

#
01

Whether the ELC lacks original jurisdiction over a constitutional petition concerning an EIA license absent a prior appeal to NET

Holding

The preliminary objection is without merit; the ELC has original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act to hear environmental rights petitions

Reasoning

The court reasoned that while EMCA establishes NET under Section 125(1) and Section 129 provides an appeal route for persons aggrieved by NEMA licensing decisions, the ELC's jurisdiction under Article 162(2)(b) and Section 13(1) of the ELC Act covers all disputes relating to environment and land, including original petitions alleging violation of Article 42 rights. Section 13(2)(e) is non-exhaustive. The petition raises constitutional issues transcending NET's statutory mandate.

p. 2
02

Whether the exhaustion doctrine bars the petitioners from approaching the court directly

Holding

The exhaustion doctrine argument fails because the constitutional claims raised fall outside NET's mandate

Reasoning

The 1st Respondent argued, relying on Owners of Motor Vessel 'Lilian S' and exhaustion-doctrine authorities, that petitioners should have first gone to NET under Section 129 of EMCA. The court held that NET's mandate is limited to appeals on NEMA decisions and it cannot entertain constitutional petitions alleging violations of Article 42, 69 and 70 rights, so direct resort to the ELC was proper.

Legal principles established

#
  • The Environment and Land Court, unlike the National Environmental Tribunal, is mandated to hear applications for redress for denial, violation or infringement of, or threats to, rights relating to the environment and land in the first instance
  • The National Environmental Tribunal only hears appeals on NEMA decisions and does not have jurisdiction over constitutional petitions

Court orders

#
  1. 1.The preliminary objection dated 22nd October 2019 by the 1st Respondent is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Environmental Management and Coordination Act (EMCA)Section 58
  • Environmental Management and Coordination Act (EMCA)Section 60
  • Environmental Management and Coordination Act (EMCA)Section 125(1)
  • Environmental Management and Coordination Act (EMCA)Section 126
  • Environmental Management and Coordination Act (EMCA)Section 129
  • Environmental Management and Coordination Act (EMCA)Section 130
  • Environmental Management and Coordination Act (EMCA)Section 7
  • Environmental Management and Coordination Act (EMCA)Section 9
  • Environmental (Impact Assessment and Audit) Regulations2003
  • Environment and Land Court ActSection 13(1), 13(2)(a), 13(2)(e)
  • Constitution of KenyaArticle 42, 69, 70, 159(2)(d), 162(2)(b)

Cases cited (12)

  • Owners of Motor Vessel "Lilian S" –v- Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • International Centre for Policy and Conflict & 5 Others –v- Attorney General & 4 Others
    (2015) eKLR
  • Papinder Kaur Atwal –v- Manjit Singh Amrit
    Nairobi Petition No.236 of 2011
  • Re Application by Bahadar
    (1986) LRC (const)
  • Minister of Home Affairs –v- Bickle & Others
    (1985) LCR (const)
  • COD & Another –v- Nairobi City Water & Sewarage Company Limited
    (2015) eKLR
  • Speaker of National Assembly –v- Njenga Karume
    (1992) KLR
  • Geoffrey Muthinja & Another –v- Samuel Muguna Henry & 1756 Others
    (2015) eKLR
  • Taib Investments Limited –v- Fahim Salim Said & 5 Others
    (2016) eKLR
  • Godfrey Paul Okutoyi –v- Habil Olaka & Central Bank of Kenya
    (2015) eKLR
  • Mutanga Tea & Coffee Company Ltd –v- Shikara Limited & Municipal Council of Mombasa
    (2015) eKLR
  • Mohamed Ali Baadi and Others –v- Attorney General & 11 Others
    (2018) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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, "Gedion Kibindu & 20 others v Kenya Ports Authority & 3 others [2020] KEELC 3449 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3449/eng@2020-01-23

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