Prisca Aluoch Odongo & 7 others v National Irrigation Authority & 3 others [2021] KEELC 199 (KLR)
The bottom line
#The Environment and Land Court struck out a family's flood-damage petition because they had to first challenge the irrigation project's licence at the National Environment Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over the constitutional petition
The court lacked jurisdiction; the petition was struck out
The court's jurisdiction flows from Article 162(2)(b) and the ELC Act, but the petition raised issues of environmental licensing and project-affected person grievances that fall squarely within the statutory mandates of NEMA, the National Environment Tribunal and the NECC. Since these properly constituted institutions exist, the court cannot arrogate itself jurisdiction, and the petitioners were bound to exhaust the prescribed remedies first. Judicial deference, abstention and exhaustion doctrines applied.
Exhaustion of administrative remedies under section 9(4) of the Fair Administrative Action Act and section 129 of EMCA
Petitioners did not exhaust the available statutory avenue of appeal to NET against the ESIA licence; no leave for exemption had been sought
The 1st Respondent contended the proper forum for challenging the ESIA licence issued by NEMA is the National Environment Tribunal under section 129 of EMCA and rule 46(1)(f) of the EIA/A Regulations, 2003, which possesses the requisite technical expertise. The court agreed, holding the exhaustion principle applicable and reserving the constitutional environmental issues pending determination by the statutory bodies.
Legal principles established
#- Where a statute establishes specialised bodies with mandate to determine issues (NET, NEMA, NECC), a court cannot arrogate itself jurisdiction over those issues; the exhaustion principle applies
- Assumed jurisdiction is a nullity; nothing can divest a court of jurisdiction it possesses under the law, and a court cannot confer jurisdiction upon itself
- Where jurisdiction is wanting, all other issues are immaterial
Court orders
#- 1.The petition dated 25th September 2020 and amended on 2nd February 2021 is struck out
- 2.Petitioners at liberty to seek appropriate remedies in statutorily established organs (NET, NEMA, NECC)
- 3.Constitutional issues under Articles 42 and 70 reserved pending the outcome of the decision on licensing issues
- 4.Each party to bear its own costs of the petition
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and sections 4 and 13 of the Environment and Land Court Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prisca Aluoch Odongo & 7 others v National Irrigation Authority & 3 others [2021] KEELC 199 (KLR)", Case Analysis (2021). Petition dated 25th September 2020, amended 2nd February 2021 (Homa Bay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/199/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.