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ELCDismissedNot stated in the extract (suit filed 4/7/2019 at Murang'a)· [2020] KEELC 3902 (KLR)

David Mereka & another v Director General, Nema & 2 others [2020] KEELC 3902 (KLR)

Environment and Land Court
27 January 2020
JKJ G Kemei
4,082 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 it can hear constitutional environmental claims directly, dismissing NEMA and operators' bid to force the case to the Tribunal.

What this practically means

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Executive summary

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The Plaintiffs sued NEMA (1st Defendant), the operator of a charcoal briquette plant (2nd Defendant) and the preparer of the EIA report (3rd Defendant) on LR NO NGINDA/SAMAR/BLOCK11/955, Murang'a, seeking declarations that their right to a clean and healthy environment had been violated, that the EIA report was obtained without public participation and was null and void, and that the EIA licence No PR/1239/0054554 issued on 6/2/2019 be cancelled and revoked, the plant stopped and decommissioned. NEMA and the 2nd and 3rd Defendants raised preliminary objections contending the Court lacked jurisdiction: disputes arising from NEMA's licensing decisions fall exclusively to the National Environmental Tribunal under Section 129 EMCA, with appeals thereafter to the ELC; and change-of-user issues lie with the Physical Planning Liaison Committee. The Plaintiffs argued the Court has original jurisdiction under Article 162(2)(b), Section 13 of the ELC Act and Section 3(3) EMCA to determine constitutional environmental claims. Applying the predominant purpose test and relying on Taib Investments, the Court held the declaratory reliefs for violation of the Article 42 right cannot be granted by NET and that NET's remedies were not adequate redress under Article 70. The change-of-user objection failed as it required factual investigation, and the abuse-of-process objection was premature. Both preliminary objections were dismissed with costs to the Plaintiffs. The substantive suit and the Notice of Motion dated 3/7/19 remain for hearing.

Key legal issues

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01

Jurisdiction of ELC vis-à-vis NET under Section 129 EMCA

Holding

The ELC has jurisdiction because the Plaintiffs seek declaratory relief for violation of the constitutional right to a clean and healthy environment, which NET cannot grant; the predominant purpose of the suit is environmental/constitutional.

Reasoning

Applying the predominant purpose test, the court found the declaratory reliefs under Articles 42, 69 and 70 cannot be granted by NET. Section 3(3) EMCA empowers the Court to determine threats to the right to a clean and healthy environment. Article 70 provides redress in addition to other remedies, and NET's remedies were not adequate or efficacious.

p. 6
02

Whether change-of-user approval objection is a proper preliminary objection

Holding

It fails as a preliminary objection because it requires factual investigation.

Reasoning

The court held the question whether the 2nd Defendant obtained approvals for change of user requires investigation by the Court; a preliminary objection must be a pure point of law not blurred by factual details calling for evidence.

p. 6
03

Abuse of process objection regarding the application dated 3/7/19

Holding

Not determined as the application is yet to be heard.

Reasoning

The court declined to deal with this objection in the ruling because the Notice of Motion dated 3/7/19 had not been heard; it would be premature to rule on abuse of process.

p. 6

Legal principles established

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  • Where reliefs sought are hybrid, the predominant purpose test applies - the most substantial question in controversy determines the forum.
  • The ELC has jurisdiction under Articles 42, 69 and 70 to determine claims of violation of the right to a clean and healthy environment, and NET's remedies are not adequate redress for such constitutional claims.
  • An objection requiring factual investigation cannot succeed as a preliminary objection.

Court orders

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  1. 1.The two Preliminary Objections dated 18/7/19 and 16/9/19 are dismissed
  2. 2.Costs of the Preliminary Objections awarded to the Plaintiffs

Authorities

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Legislation

  • Environment Management and Coordination Act (EMCA)Sections 3(3)-(5), 125, 129(1),(2),(3), 130, 162(2)
  • Constitution of Kenya 2010Articles 42, 69, 70, 162(2)(b)
  • Environment and Land Court Act No. 19 of 2011Section 13(1)-(5)
  • Physical Planning Act No. 6 of 1996Section 13

Cases cited (7)

  • Mukisa Biscuits Manufacturers Ltd vs West End Distributors Ltd
    [1969] E.A. 696
  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil Kenya Limited
    [1989] KLR
  • Samuel Kamau Macharia vs Kenya Commercial Bank & 2 others
    CA No 2 of 2011
  • Hosea Kiplagat & 6 others vs NEMA & 2 others
    (2015)
  • Patrick Njenga Mburu & 98 others vs NEMA & 6 others
    (2019) EKLR
  • Taib Investment Limited vs Fahim Salim Said & 5 others
    (2016) EKLR
  • Joseph Umino & Anor vs NEMA and Africa Plysack Limited
    (2014) EKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13 and 3(3) of the Environment and Land Court Act; Section 3(3) EMCA

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Mereka & another v Director General, Nema & 2 others [2020] KEELC 3902 (KLR)", Case Analysis (2020). Not stated in the extract (suit filed 4/7/2019 at Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3902/eng@2020-01-27

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