Justice and Environment Foundation & 124 others v Perry Patel Mansukhlal Kansagra & others [2020] KEELC 3480 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over the petition
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
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.
Whether the ordinary damages claims should proceed by petition or plaint
Claims for compensation for death, injury and property loss should be pursued in ordinary suits in the proper forum
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.
Whether respondents' participation precludes the jurisdictional objection
Submission to jurisdiction cannot confer jurisdiction
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.
Remedy for the out-of-jurisdiction claims
Striking out specific prayers rather than the whole petition
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.
Legal principles established
#- 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
#- 1.Prayers 3 to 15 of the amended petition are struck out
- 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.Costs of the objection are awarded to the respondents
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.