Erastus Riungu Mutiga & another v Nairobi City County Government & 2 others; National Environmental Management Authority (Interested Party) [2021] KEELC 1237 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court had jurisdiction given the statutory dispute resolution mechanisms
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
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.
Whether public participation was conducted before issuance of the EIA licence
Sufficient public participation was conducted; residents were consulted and seven filled questionnaires, and these averments were not controverted
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.
Whether Articles 42, 47 and 69 rights were violated
No violation established; petitioners failed to prove allegations and the petition failed the Anarita Karimi Njeru pleading threshold
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.
Legal principles established
#- 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
#- 1.The Petition is dismissed with costs to the Respondents/Interested Party
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.