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ELCStruck OutNot stated in the judgment as reproduced· [2021] KEELC 266 (KLR)

Jason Edward Matus & another v Summit Gehlot & another; National Environment Authority & 2 others (Interested Parties) [2021] KEELC 266 (KLR)

Environment and Land Court
20 December 2021
OMOguttu Mboya
8,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a neighbours' petition challenging a Nairobi development because they skipped mandatory appeal steps and filed defective documents.

What this practically means

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Executive summary

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The Petitioners challenged a proposed development on L.R. No. 7158/148, Bendera Lane, Upper Spring Valley, Nairobi, contending it proceeded without compliance with EMCA, the Physical Planning Act and county ordinances, and sought a declaration, injunctive and conservatory orders, certiorari quashing of approvals and demolition. The Respondents and the 2nd interested party opposed, asserting that approvals and licences were duly obtained and that the Court lacked jurisdiction at first instance, the statutory appeal mechanisms under Section 61 of the Physical and Land Use Planning Act, 2019 and Section 129 of EMCA not having been exhausted. The court first held that the Petition was incompetent: the supporting affidavit sworn on behalf of the 2nd Petitioner lacked a written authority under Order 1 Rule 13, the affidavit sworn in Maryland, USA was not authenticated as required by Section 88 of the Evidence Act, and its annexures were not sealed by the commissioning officer, and were expunged. The Petition thereby became bare, invalid and a nullity ab initio. On jurisdiction, the court found that the earlier Ruling of 11 May 2021 did not dispose of the jurisdictional question, its silence conferring no jurisdiction. Although the Court held it possessed jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, it declined to exercise original jurisdiction, applying the exhaustion doctrine and Kibos Distillers: statutory organs must first be engaged, and courts are fora of last resort. The conservatory reliefs were held misconceived, being interlocutory in nature and already disposed of. The court struck out the further amended Petition, awarded costs to the Respondents and 2nd interested party only, and vacated the conservatory orders issued on 11 May 2021.

Key legal issues

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01

Competence of the further amended Petition and its supporting affidavit

Holding

The Petition on behalf of the 2nd Petitioner was incompetent, a nullity ab initio, as no written authority was filed; the supporting affidavit sworn in Maryland, USA was unauthenticated; annexures not sealed by the commissioning officer were expunged, leaving the Petition bare

Reasoning

Order 1 Rule 13 of the Civil Procedure Rules requires written, filed authority where one plaintiff acts for another, applicable to constitutional petitions. Section 88 of the Evidence Act requires authentication of documents sworn outside the Commonwealth, the USA not being one. Rule 9 of the Oaths and Statutory Declarations Rules requires exhibits to be sealed by the commissioner before whom the affidavit is sworn. Non-compliance rendered the affidavit invalid, the annexures incompetent, and the petition bare and void.

p. 5
02

Whether the jurisdictional question was res judicata having been raised at the interlocutory stage

Holding

The Court in the 11 May 2021 Ruling mentioned but did not determine jurisdiction; its silence neither disposed of the issue nor conferred jurisdiction

Reasoning

The court perused the earlier Ruling and found that although jurisdiction was reproduced from the Respondents' submissions, the Court did not render itself on the question. Following Francis Ndahebwa Twala v Ben Nganyi, jurisdiction cannot be conferred by a court's silence or the parties' ignorance, and the issue remained alive and deserving of determination.

p. 7
03

Whether the ELC should exercise original or appellate jurisdiction / exhaustion doctrine

Holding

Although the Court has jurisdiction under Section 13 ELC Act and Section 3(3) EMCA, it declined to exercise original jurisdiction; aggrieved parties must first exhaust statutory appeal mechanisms under Section 61 of the Physical and Land Use Planning Act, 2019 and Section 129 of EMCA

Reasoning

Relying on Kibos Distillers, the court held that a court with both original and appellate jurisdiction cannot usurp the original jurisdiction of statutory organs simply because a claim is multifaceted or alleges constitutional violations. Exhaustion of alternative dispute mechanisms, anchored in Article 159, requires courts to be fora of last resort, preserving the right of appeal under Article 48.

p. 10
04

Entitlement to the reliefs sought

Holding

The declaratory and certiorari reliefs were premature as statutory appeals had not been pursued; conservatory orders are interlocutory remedies already disposed of and could not be granted at the plenary stage

Reasoning

Reliefs (i) and (iii) map onto Section 61(3) and (4) of the Physical and Land Use Planning Act and Section 129 of EMCA, which provide the appellate route to the Liaison Committee, the National Environment Tribunal and then the ELC. Following Gitareu Peter Monya, conservatory orders bear a public-law connotation and are granted at the interlocutory stage; the 11 May 2021 Ruling had already disposed of that claim.

p. 11

Legal principles established

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  • A petition on behalf of one of several petitioners requires a written authority signed by that petitioner and filed with the pleadings; without it the petition is a nullity ab initio
  • Affidavits sworn outside the Commonwealth must be authenticated; the notary public's signature must be verified or legalized under Section 88 of the Evidence Act
  • Exhibits to affidavits must be securely sealed under the seal of the commissioner before whom the affidavit is sworn; a different advocate cannot seal the annexures
  • A court's silence on a jurisdictional issue at the interlocutory stage does not dispose of it, nor does it confer jurisdiction
  • Where a court holds both original and appellate jurisdiction, it should exercise judicial restraint and not assume original jurisdiction so as to deprive litigants of the statutory right of appeal; statutory dispute resolution organs must first be exhausted

Court orders

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  1. 1.The further amended Petition dated the 22nd of June 2021 be and is hereby Struck out
  2. 2.Costs of the Petition be and are hereby awarded to the Respondents and the 2nd interested party only
  3. 3.The conservatory orders of injunction which were issued vide the ruling dated the 11th of May 2021 be and are hereby Vacated and or Discharged

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 258, 42, 48, 69, 70, 159(2), 162(2)(b)
  • Environment and Land Court ActSection 13(1) and (3)
  • Environmental Management and Coordination Act, 1999 (2015)Sections 3(3), 3(5), 58, 129
  • Physical Planning Act (repealed)Part VI; Sections 15, 19, 38
  • Physical and Land Use Planning Act, 2019Section 61(1), (3) and (4)
  • Civil Procedure Rules, 2010Order 1 Rule 13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013not specified
  • Evidence Act, Chapter 80Section 88
  • Oaths and Statutory Declarations Act, Chapter 15Rule 9 of the Oaths and Statutory Declarations Rules
  • Nairobi City Development Ordinances and Zones Regulations, 2004not specified
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Appellate Jurisdiction Act (Cap 9)Sections 3A and 3B
  • Environment Act (as cited by Petitioners)Sections 13(1) and (3)

Cases cited (28)

  • Ahmed Bashir Abdi & Another versus The County Government of Wajir and 2 others
    (2020) eKLR
  • West Kenya Sugar Company Limited versus Busia Sugar Company Limited and 2 others
    (2017) eKLR
  • Nakuru Constitutional Petition No. 13 of 2015 (Honorable Justice Munyao)
  • J. S. Muriu versus Tigoni Treasures Limited
    (2014) eKLR
  • Michael Moragia Nyachae & Another versus Buddies Kisii Limited and 2 others
    (2016) eKLR
  • Shiloah Investment Limited versus National Environment Tribunal and 7 others
    (2018) eKLR
  • Kenneth Ngure Mwaura & Another versus Rubis Energy Kenya and 2 others
    (2021) eKLR
  • Zoa Limited versus Arvind Mani and 2 others
    (2020) eKLR
  • Republic versus The Attorney General & Another ex-parte Eart Konza Ranching and Farming Cooperative Society Limited
    (2018) eKLR
  • Owners of Motor Vessel Lilian S versus Caltex Oil Kenya limited
    (1989) eKLR
  • Equity Bank Limited versus Bruce Mutie Mutuku T/A Diani Tour Travels
    (2016) eKLR
  • Phoenix of EA Assurance Company Limited versus S.M Thiga T/A Newspaper Service
    (2019) eKLR
  • Techno Service Ltd vs Nokia International Oy-Kenya & 3 others
    [2020] eKLR
  • Pasatificio Lucio Garofalo SPA v Security & Fire Equipment Co & Another
    (2001) eKLR
  • Bosongo Medical Hospital & Another versus Mainstream Welfare Association and others
    [2016] eKLR
  • Mumo Matemu Vs. Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No. 290 of 2012
    [2013] eKLR
  • Francis Ndahebwa Twala versus Ben Nganyi
    [2018] eKLR
  • Kakuta Maimai Hamisi versus Peris Pesi Tobiko and two others
    [2013] eKLR
  • Samuel Kamau Macharia vs Kenya Commercial Bank
    (2012) eKLR
  • Esther Gachambi Mwangi vs Samuel Mwangi Mbiri
    (2013) eKLR
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution, Constitutional Application No. 2 of 2011
  • Kibos Distillers Limited & 4 Others vs Benson Ambuti & 3 Others
    (2020) eKLR
  • Geoffrey Muthinja Kabiro v Samuel Muguna Henry
    (2015) eKLR
  • Re The Matter of Kenya National Commission of Human Rights, Supreme Court Ref. No. 1 of 2012
    [2014] eKLR
  • Bethwel Allan Omondi Okal vs Telcom (K) Limited (founder) & 9 Others
    (2017) eKLR
  • International Centre for Policy and Conflict & 4 others vs The Hon. Uhuru Kenyatta and others, Petition No. 552 of 2012
  • Speaker of National Assembly vs Njenga Karume
    [2008] 1 KLR 425
  • Gitareu Peter Monya versus Dickson Mwenda Kithinji
    [2014] eKLR
Jurisdiction invoked
Articles 22, 23, 42, 69, 70 and 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, 2011; Section 3(3) and 3(5) of the Environmental Management and Coordination Act, 1999

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Jason Edward Matus & another v Summit Gehlot & another; National Environment Authority & 2 others (Interested Parties) [2021] KEELC 266 (KLR)", Case Analysis (2021). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/266/eng@2021-12-20

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