Getrude Mukoya Mwenda & others v Cabinet Secretary Ministry of Infrastructure, Housing & Urban Development [2020] KEELC 3466 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed communities can challenge sand harvesting and EIA licences directly in the ELC rather than first going to the National Environment Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC lacks original jurisdiction over a constitutional petition alleging violation of the right to a clean and healthy environment where an EIA license was issued and EMCA provides an appeal mechanism to the National Environment Tribunal
The preliminary objection is not merited. The ELC has original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act to hear the petition, as it is a matter relating to environment and land, and the NET cannot entertain constitutional petitions.
The court found the petition alleges violations of Articles 42 and 69 of the Constitution. While NET is established under Section 125(1) of EMCA with jurisdiction under Section 129 to hear appeals from NEMA decisions, its mandate does not extend to constitutional petitions. Section 13(1) of the ELC Act confers both original and appellate jurisdiction over all environment and land disputes, and Section 13(2)(a) and (e) make the list of disputes non-exhaustive. Consequently the ELC is the only forum mandated to hear redress for threats to environmental rights, and the exhaustion argument fails on the facts of this petition.
Legal principles established
#- The National Environment Tribunal does not have jurisdiction to hear constitutional petitions; its mandate is confined to hearing appeals on NEMA decisions, while the Environment and Land Court alone is mandated to hear and determine applications for redress for denial, violation or infringement of, or threats to, rights relating to environment and land.
- Under Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act, the ELC has both original and appellate jurisdiction to hear all disputes relating to the environment and land.
Court orders
#- 1.The preliminary objection dated 13th September 2019 by the 2nd 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
#Cite this brief
#Cite this brief
Caselaw, "Getrude Mukoya Mwenda & others v Cabinet Secretary Ministry of Infrastructure, Housing & Urban Development [2020] KEELC 3466 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3466/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.