Gedion Kibindu & 20 others v Kenya Ports Authority & 3 others [2020] KEELC 3449 (KLR)
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
#Key legal issues
#Whether the ELC lacks original jurisdiction over a constitutional petition concerning an EIA license absent a prior appeal to NET
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
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.
Whether the exhaustion doctrine bars the petitioners from approaching the court directly
The exhaustion doctrine argument fails because the constitutional claims raised fall outside NET's mandate
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.The preliminary objection dated 22nd October 2019 by the 1st Respondent is dismissed
- 2.No order as to costs
- 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.