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ELCDismissedNot stated in the judgment· [2020] KEELC 3466 (KLR)

Getrude Mukoya Mwenda & others v Cabinet Secretary Ministry of Infrastructure, Housing & Urban Development [2020] KEELC 3466 (KLR)

Environment and Land Court
23 January 2020
1,971 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 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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determines a preliminary objection dated 13th September 2019 by the 2nd Respondent, supported by the 3rd Respondent, contending that the court lacks original jurisdiction to hear a constitutional petition challenging sand harvesting activities along the southern coast of Kenya and the validity of an Environmental Impact Assessment License No. 0001206 issued on 7th August 2007. The respondents invoked Section 129 of EMCA and Rule 3 of the National Environment Tribunal Rules, arguing that the National Environment Tribunal is the proper first-instance forum for disputes concerning NEMA licensing decisions and that the petition violates the exhaustion doctrine, citing among others the Owners of Motor Vessel 'Lillian s' case and Speaker of National Assembly v Njenga Karume. The petitioners opposed, relying on Article 42 and 69 of the Constitution, Articles 70 and 162(2)(b), and Sections 13(2) and 13(3) of the Environment and Land Court Act, submitting that the NET cannot grant the constitutional remedies sought. The court framed the sole issue as whether it lacks jurisdiction. It held that the ELC, under Article 162(2)(b) and Section 13 of the ELC Act, has both original and appellate jurisdiction over all environment and land disputes, and that the NET's mandate is confined to hearing appeals on NEMA decisions and does not extend to constitutional petitions. The court found the preliminary objection unmerited, dismissed it, and made no order as to costs.

Key legal issues

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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

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 13th September 2019 by the 2nd Respondent is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Environmental Management and Coordination Act (EMCA)Section 129
  • Environmental Management and Coordination Act (EMCA)Section 58
  • Environmental Management and Coordination Act (EMCA)Section 60
  • Environmental Management and Coordination Act (EMCA)Section 126
  • Environmental Management and Coordination Act (EMCA)Section 130
  • Environmental Management and Coordination Act (EMCA)Section 125(1)
  • Environmental Management and Coordination Act (EMCA)Section 7
  • Environmental Management and Coordination Act (EMCA)Section 9
  • Environmental Management and Coordination Act (EMCA)Section 3
  • National Environment Tribunal RulesRule 3
  • Environmental (Impact Assessment and Audit) RegulationsNot specified
  • Environment and Land Court ActSection 13(2)(a)
  • Environment and Land Court ActSection 13(3)
  • Environment and Land Court ActSection 13(1)
  • Environment and Land Court ActSection 13(2)(e)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 42
  • Constitution of KenyaArticle 69
  • Constitution of KenyaArticle 70
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (23)

  • Owners of Motor Vessel "Lillian s" –v- Caltex Oil (Kenya) Ltd
    (1989) KLR
  • International Centre for Policy & Conflict & 5 Others –v- Attorney General & 4 Others
    (2013) eKLR
  • Papinder Kaur Atwal –v- Manjit Singh Amrit
    Nairobi Petition No.236 of 2011
  • Re Application by Bahadur
    (1986)(const)
  • Minister of Home Affairs –v- Bickle & Others
    (1985) LRC const
  • COD & Another –v- Nairobi City Water & Sewerage Company Limited
    (2015) eKLR
  • Speaker of National Assembly –v- Njenga Karume
    (1992) eKLR
  • Geoffrey Muthinja & Another –v- Samuel Muguna Henry & 1756 Others
    (2015) eKLR
  • Taib Investment 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
  • Joseph Owino & Another –v- NEMA & Africa Plysack Ltd
    (2014) eKLR
  • Isaac Ngugi –v- Nairobi Hospital & Another
    (2013) eKLR
  • Rich Productions Ltd –v- Kenya Pipeline Limited & Public Procurement Oversight Authority
    (2014) eKLR
  • Damian Befonte –v- The Attorney General of Trinidad and Tobago
    C.A No. 84 of 2004
  • Kones –v- Republic and Another Ex Parte Kimani Wanyoike & Others
    (2008) 3 KLR
  • Rodgers Muema Nziaka –v- AG
    Nairobi Petition No.613 of 2006
  • David Ramogi & 4 Others –v- The Cabinet Secretary Ministry of Energy & Petroleum & 7 Others
    (2017) eKLR
  • Eric Wambua Muli & Another –v- Prime Bank Limited & 3 Others
    (2017) eKLR
  • Patrik Njenga Mburu & 98 Others –v- National Environmental Management Authority & 6 Others
    (2019) eKLR
  • Peter Karuing'o –v- Hijaz Development Ltd & 4 Others
    (2018) eKLR
  • John Kabukuru Kibichu & Another –v- County Government of Nakuru & 2 Others
    (2016) eKLR
  • Ken Kasing'a –v- Daniel Kiplagat Kirui & 5 Others
    (2015) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.