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ELCPartially AllowedPetition dated 13/08/2021 (Dagoretti/Kangemi/712)· [2021] KEELC 490 (KLR)

Anthony Mwangi Ng’ang’a & 35 others v Kenya Urban Roads Authority & 6 others [2021] KEELC 490 (KLR)

Environment and Land Court
7 December 2021
7,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kangemi residents can pursue their environmental rights claim in court, but their electricity dispute with Kenya Power must go through the energy regulator first.

What this practically means

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Executive summary

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The Petitioners, residents holding leases on parcel DAGORETTI/KANGEMI/712 in Kangemi, Nairobi, petitioned over the encroachment of an adjoining 10-metre public road and reserve by illegal structures, alleging denial of access, threats to life and property from fires (including one on 3/08/2021) impeding emergency access, and degradation of the Kangemi Dam and its feeder stream. They sought declarations that a public road exists and that they have been denied its use, permanent injunctions against Kenya Power reconnection and for removal of structures on the road and riparian land, and interim conservatory orders against Kenya Power, KURA and the Ministry of Interior. The 5th Respondent (Kenya Power) raised a preliminary objection on jurisdiction, arguing the dispute falls under the Energy Act, 2019 and the Energy and Petroleum Tribunal; the 1st, 2nd and 7th Respondents (KURA and national government entities) asserted the road is a county road outside their mandate; the 3rd Respondent denied any breach and sought striking out. The court applied the exhaustion doctrine (Lillian S, Karume, Mutanga Tea) and struck out the 5th Respondent as improperly joined, holding the electricity reconnection dispute belongs to the energy statutory regime. However, because the gravamen of the petition is enforcement of the Article 42 right to a clean environment, a matter reserved to the High Court and courts of equal status, the court retained jurisdiction over the remaining respondents. On the interim relief, applying Munya and Nubian Rights Forum principles, only a prima facie case was shown; real danger of prejudice, nugatory-ness and public interest were not demonstrated, so conservatory orders were declined and deferred prayers reserved to the full hearing of the petition.

Key legal issues

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01

Jurisdiction over the electricity reconnection dispute against the 5th Respondent

Holding

Suit against the 5th Respondent struck out; the dispute is a preserve of the Energy Regulatory Commission/Energy and Petroleum Tribunal under the Energy Act, 2019

Reasoning

The court found the dispute between petitioners and KPLC concerned reconnection of electricity, which sections 3, 6 and 61(3) of the Energy Act reserve to the Energy Regulatory Commission. Applying the exhaustion doctrine per Lillian S, Karume and Mutanga Tea, the suit against the 5th Respondent was improperly before the court and was struck out.

p. 9
02

Jurisdiction over the remainder of the petition

Holding

The Environment and Land Court has jurisdiction to hear the petition against the 1st-4th, 6th and 7th Respondents as it concerns enforcement of Article 42 environmental rights

Reasoning

The gravamen of the petition is enforcement of fundamental rights, particularly the right to a clean and healthy environment under Article 42. Tribunals cannot enforce the Bill of Rights; only the High Court and courts of equal status may. The court therefore found the petition properly before it against the remaining respondents.

p. 9
03

Entitlement to interim conservatory orders

Holding

Conservatory orders declined as only a prima facie case, not the other required principles, was demonstrated

Reasoning

Applying Gatirau Peter Munya and Nubian Rights Forum principles, the applicant must show prima facie case, prejudice, that the petition would be rendered nugatory, and public interest. Only the prima facie case limb was satisfied; the court was not satisfied public interest would be jeopardized by refusal.

p. 11

Legal principles established

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  • Where there is a clear procedure for redress prescribed by statute, that procedure should be strictly followed
  • Only the High Court and courts of equal status may enforce the Bill of Rights; tribunals lack jurisdiction to enforce fundamental rights

Court orders

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  1. 1.The 5th Respondent is struck out of the Petition
  2. 2.Prayer 2 in the Chamber Summons dated 13/08/2021 and prayers 3 and 4 in the Notice of Motion dated 13/08/2021 shall be determined together with the Petition
  3. 3.Conservatory reliefs sought in the application declined
Jurisdiction invoked
Articles 22, 23, 42 and 162(2)(b) of the Constitution; Environment and Land Court Act section 13

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, "Anthony Mwangi Ng’ang’a & 35 others v Kenya Urban Roads Authority & 6 others [2021] KEELC 490 (KLR)", Case Analysis (2021). Petition dated 13/08/2021 (Dagoretti/Kangemi/712). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/490/eng@2021-12-07

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