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ELCDismissedPetition dated 18th June 2019, amended 25th October 2019· [2021] KEELC 1237 (KLR)

Erastus Riungu Mutiga & another v Nairobi City County Government & 2 others; National Environmental Management Authority (Interested Party) [2021] KEELC 1237 (KLR)

Environment and Land Court
21 October 2021
5,937 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court dismissed residents' challenge to a petrol station approval because they skipped the statutory appeal routes before going to court.

What this practically means

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Executive summary

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Two residents of Mukuyu Court, Thome Estate, petitioned against the approval granted to the 2nd Respondent to change the user of plot L.R. No. Nairobi/Block 110/172 from residential to commercial use for a petrol station, seeking declarations of violation of Articles 10, 42, 47 and 69 and Section 4(1) of the Fair Administrative Action Act, certiorari to quash the approvals, injunctions, a demolition order, mandamus and general damages. The 1st Respondent (Nairobi City County) filed no response. The 2nd Respondent justified the development on the strength of NEMA, county, KURA, NCA and ERC approvals, and alleged the petitioners acted from personal vendetta. KURA and NEMA defended their respective approvals, NEMA asserting that the EIA process met public participation requirements. The court framed three issues: jurisdiction, infringement of rights, and entitlement to reliefs. It held that the Physical Planning Act and EMCA provide elaborate dispute resolution mechanisms (liaison committees and the National Environment Tribunal) which the petitioners, aware of the project since 2015, never exhausted; the petition was therefore premature and the court lacked original jurisdiction. On the merits, the court found sufficient public participation was conducted before the EIA licence issued, no violation of Article 47 occurred since notices were published in the newspapers and on the land, and the petitioners failed the Anarita Karimi Njeru pleading threshold and the standard of proof under Section 107 of the Evidence Act. The petition was dismissed with costs to the Respondents/Interested Party.

Key legal issues

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01

Whether the court had jurisdiction given the statutory dispute resolution mechanisms

Holding

The court lacked original jurisdiction because the petitioners bypassed the appeal mechanisms in Section 13 of the Physical Planning Act and Section 129 of EMCA

Reasoning

The Physical Planning Act establishes liaison committees to hear appeals from aggrieved persons on development decisions, and EMCA establishes the National Environment Tribunal for appeals against NEMA decisions. The petitioners, aware of the proposed petrol station since 2015, adduced no evidence of ever pursuing either avenue, rendering the petition premature.

p. 7
02

Whether public participation was conducted before issuance of the EIA licence

Holding

Sufficient public participation was conducted; residents were consulted and seven filled questionnaires, and these averments were not controverted

Reasoning

Relying on Nairobi Metropolitan PSV Sacco Union, the court held that what matters is a reasonable opportunity for participation. John Ndirangu Kuria deponed that residents were consulted, seven residents filled questionnaires, and a notice was placed in the newspaper and on the land. The petitioners did not controvert these averments.

p. 8
03

Whether Articles 42, 47 and 69 rights were violated

Holding

No violation established; petitioners failed to prove allegations and the petition failed the Anarita Karimi Njeru pleading threshold

Reasoning

The court held that a notice of change of user was published in the newspapers and placed on the land, satisfying fair administrative action requirements. On environmental rights, the petitioners squandered their opportunity by failing to go to the NET, which is better equipped with experts. The allegations were not proved to the standard under Section 107(1) of the Evidence Act.

p. 8

Legal principles established

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  • A petitioner must exhaust the statutory dispute resolution mechanisms under the Physical Planning Act and the Environmental Management and Co-ordination Act before approaching the court; failure renders the petition premature and robs the court of original jurisdiction
  • Public participation is sufficient where a reasonable opportunity is accorded to the public and interested parties to know of and have a say on an issue, depending on the circumstances
  • Constitutional petitions must plead with particularity the provisions violated and the manner of violation

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents/Interested Party

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 35, 42, 47, 69(1)(a),(d),(f)
  • Fair Administrative Action ActSections 4(1), 4(3)
  • Physical Planning ActSections 7, 13(1), 29
  • Environmental Management and Co-ordination Act, No. 8 of 1999Sections 125, 129
  • Environment and Land Court ActSection 13
  • Access to Information Act
  • Evidence ActSection 107(1)

Cases cited (11)

  • Katiba Institute V. President's Delivery Unit & 3 Others
    [2017] eKLR
  • Muslims for Human Rights (MUHURI) and Another v Inspector-General of Police and 5 others
    [2015] eKLR
  • Gregory Kitonga Wambua & 2 Others v County Government of Kiambu
    (2019) eKLR
  • John Kabukuru Kibicho & another v County Government of Nakuru & 2 others
    [2016] eKLR
  • Runda Gardens Association v NEMA & Anor
    ELC Case No. 76 of 2020
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Republic v Karisa Chengo & 2 Others
    [2017] eKLR
  • Nairobi Metropolitan PSV Sacco Union Ltd & 25 Others v County Government of Nairobi & 3 Others
    [2013] eKLR
  • Minister of Health vs New Clicks South Africa (Pty) Ltd
  • Kibos Distillers & 4 Others v Benson Ambuti Adega & 3 Others
    [2020] eKLR
  • Anarita Karimi Njeru vs Republic
    [1979] 1 KLR 154
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Section 13 of the Environment and Land Court Act and Article 162(2) of the Constitution; the court found it lacked original jurisdiction on the facts

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, "Erastus Riungu Mutiga & another v Nairobi City County Government & 2 others; National Environmental Management Authority (Interested Party) [2021] KEELC 1237 (KLR)", Case Analysis (2021). Petition dated 18th June 2019, amended 25th October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1237/eng@2021-10-21

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