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ELCPartially AllowedNot stated in the ruling (Solai Dam tragedy petition, Nakuru)· [2020] KEELC 3480 (KLR)

Justice and Environment Foundation & 124 others v Perry Patel Mansukhlal Kansagra & others [2020] KEELC 3480 (KLR)

Environment and Land Court
27 February 2020
4,037 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court kept the Solai Dam victims' environmental rights claim alive but struck out compensation and other non-environmental claims.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo J of the Environment and Land Court at Nakuru, delivered on 27 February 2020, determines the 1st to 5th respondents' preliminary objection against the petitioners' amended petition arising from the 9 May 2018 Solai (Milmet) Dam tragedy in Nakuru County. The petition, brought as a class action by the Justice and Environment Foundation and others, alleged violations of Articles 26, 27, 28, 29, 39, 42, 43, 47, 54, 57, 69 and 70 and sought eighteen categories of damages for deaths, personal injuries, property loss, lost earnings, medical expenses, relocation and related heads. The respondents objected that the court lacked jurisdiction and that the claim was an ordinary running-down action to be brought by plaint in the magistrate's courts under the Law Reform Act and Fatal Accidents Act. Applying Mukisa Biscuit, the court confirmed its jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act, including over environmental rights claims under Articles 42, 69 and 70, but held that the claims under Articles 26, 27, 28, 29, 39 and 43 belong to the High Court and that the compensation claims should proceed through ordinary suits, applying the doctrine of constitutional avoidance. Jurisdiction could not be conferred by the respondents' earlier submission to it. Declining to strike out the whole petition as a draconian remedy, the court struck out prayers 3 to 15 and the aspects of prayer 2 concerning Articles 26, 27, 28, 29, 39 and 43, awarded costs of the objection to the respondents, and left the environmental-rights claim alive before the ELC.

Key legal issues

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01

Whether the ELC has jurisdiction over the petition

Holding

The court has jurisdiction over the environmental (Articles 42, 69, 70) aspects of the petition, but not over the claims under Articles 26, 27, 28, 29, 39 and 43 or the ordinary damages claims

Reasoning

The court traced its jurisdiction to Article 162(2)(b) and section 13 of the ELC Act, which includes redress for violations of the right to a clean and healthy environment under Articles 42, 69 and 70. The claim under those articles falls squarely within jurisdiction. However, jurisdiction must not be stretched unnecessarily; claims for death, personal injury, property loss and like compensation are statutory/common law claims belonging to ordinary courts, and the other rights claims belong to the High Court.

p. 4
02

Whether the ordinary damages claims should proceed by petition or plaint

Holding

Claims for compensation for death, injury and property loss should be pursued in ordinary suits in the proper forum

Reasoning

Relying on constitutional avoidance as articulated by the Supreme Court in Communications Commission of Kenya v Royal Media Services, the court held that where a dispute may properly be decided on another basis, the constitutional route should not be used. The 18 categories of damages claims are statute- and common-law-based, and the petitioners may fashion appropriate cases in the correct courts, being within limitation periods.

p. 5
03

Whether respondents' participation precludes the jurisdictional objection

Holding

Submission to jurisdiction cannot confer jurisdiction

Reasoning

The petitioners argued that respondents had submitted to the court's jurisdiction by participating, citing Astra Exito Navegacion SA v Hsu. The court rejected this, holding that jurisdiction flows only from the Constitution or legislation, per Samuel Kamau Macharia v Kenya Commercial Bank, and cannot be conferred by consent or submission.

p. 4
04

Remedy for the out-of-jurisdiction claims

Holding

Striking out specific prayers rather than the whole petition

Reasoning

Weighing that striking out is draconian and the offending claims are intertwined in a 65-page amended petition, the court opted for surgical striking out of the specific prayers outside its jurisdiction, holding the petitioners suffer no prejudice as they may still sue in the proper forums within limitation periods.

p. 5

Legal principles established

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  • Jurisdiction flows from the Constitution or legislation and cannot be conferred by consent or submission
  • A preliminary objection must be on a pure point of law argued on the assumption that the facts pleaded are correct
  • The constitutional avoidance doctrine discourages bringing ordinary disputes as constitutional petitions

Court orders

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  1. 1.Prayers 3 to 15 of the amended petition are struck out
  2. 2.All aspects of prayer 2 of the amended petition that deal with Articles 26, 27, 28, 29, 39 and 43 of the Constitution are struck out
  3. 3.Costs of the objection are awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(4) & (5), 10, 19, 20, 21, 22(1), 23(3), 25, 26, 27(1) & (2), 28, 29(c), 39(3), 40(1), 42, 43, 47(1), 48, 53, 54, 57, 69, 70, 162(2)(b), 162(3), 258
  • Environment and Land Court Act, 2011Section 13
  • Civil Procedure ActCAP 21
  • Civil Procedure Rules, 2010
  • Fatal Accidents ActSection 3
  • Law Reform Act
  • Public Benefit Organizations Act, 2013
  • Environmental Management and Co-ordination Act
  • Water Act No. 43 of 2016
  • National Construction Authority Act, No. 41 of 2011

Cases cited (15)

  • Patrick Musimba vs National Land Commission & 4 Others
    [2015] eKLR
  • Jorum Kabiru Mwangi & 2 Others v Co-Operative Bank of Kenya, Kawangware Branch
    [2016] eKLR
  • Hon. Uhuru Kenyatta -vs- The Nairobi Star Limited
    High Court Petition No. 187 of 2012
  • Minister of Home Affairs vs Bickle & Others
    (1985) LRC Const. 755
  • Mohammed Said v County Council of Nandi
    [2013] eKLR
  • Rylands v Fletcher
  • Astra Exito Navegacion SA v Hsu
    [1984] 1 Lloyds Rep 266
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Uchumi Supermarkets Limited & another v Sidhi Investments Limited
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act, 2011

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, "Justice and Environment Foundation & 124 others v Perry Patel Mansukhlal Kansagra & others [2020] KEELC 3480 (KLR)", Case Analysis (2020). Not stated in the ruling (Solai Dam tragedy petition, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3480/eng@2020-02-27

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