Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2021] KEELC 1674 (KLR)

Paolo Di Maria & 5 others v Alice M. Kuria & 5 others [2021] KEELC 1674 (KLR)

Environment and Land Court of Kenya
7 October 2021
MOM. A. Odeny
4,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed it can hear base station disputes itself, rejecting arguments that complainants must first exhaust tribunal remedies.

What this practically means

#

Executive summary

#
The plaintiffs moved the Environment and Land Court at Malindi by a Notice of Motion dated 13th May 2021 seeking temporary and permanent injunctions restraining the 1st to 3rd defendants from constructing a Base Transceiver Station tower on L.R. No. 2917 Malindi, and orders compelling the 3rd defendant to suspend the station's operations. Before the motion could be heard, the 3rd defendant raised a preliminary objection contending that the court lacked jurisdiction because the Physical and Land Use Planning Act, 2019 establishes the County Physical and Land Use Planning Liaison Committee and EMCA establishes the National Environment Tribunal to determine such disputes, the court's jurisdiction being only appellate, and because the plaintiffs had not exhausted those remedies. The 4th defendant supported the objection. The plaintiffs, through counsel Metto and Ndungu, countered that under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act the ELC has original and expansive jurisdiction over environmental and land disputes, including enforcement of Article 42 rights, and relied on authority holding that ELC jurisdiction over EIA licensing matters is not displaced by the existence of NET. The court applied the Mukhisa Biscuit test, observing that the objection turned on an unresolved factual question - whether EIA licences were in fact issued - with counsel contradicting each other from the bar, and noting NEMA's replying affidavit indicating construction commenced without licensing. Following Taib Investments and West Kenya Sugar, the court held the ELC is the proper forum for the combined environmental, land-use and constitutional claims, which the tribunals cannot fully determine, and that without a licence decision there is nothing to appeal. The preliminary objection was dismissed with costs on 7th October 2021, the ruling being delivered online under the Covid-19 public orders.

Key legal issues

#
01

Whether the ELC lacks jurisdiction because the dispute should be heard by the CPLUPLC and NET

Holding

The objection fails; the ELC has original jurisdiction under Article 162(2)(b) and section 13 of the ELCA to hear the entire dispute, including the alleged constitutional violation of the right to a clean and healthy environment.

Reasoning

The court noted the plaintiffs seek reliefs relating to environment, land use and development, plus a claim of violation of the right to a clean and healthy environment under Article 42, which tribunals cannot determine. Further, the record suggested the defendants commenced construction without licences, so there was no licence decision to appeal to NET or the CPLUPLC. Splitting the claims across tribunals would be impractical where the ELC can determine all issues together.

p. 6
02

Whether the preliminary objection is a proper pure point of law

Holding

The objection was improper because it depended on facts requiring ascertainment - namely whether EIA licences were actually issued.

Reasoning

Counsel for the 6th plaintiff submitted from the bar that no licences were issued, while counsel for the 3rd defendant asserted EIA licences were issued. The court held this conflicting information required factual ascertainment and was the gist of the jurisdictional objection, making it unsuitable for determination as a preliminary objection.

p. 4

Legal principles established

#
  • The ELC has original jurisdiction over environmental and land-use disputes, including where multiple tribunals would each handle only part of the dispute; exhaustion of tribunal remedies applies only where the relief sought is within a tribunal's mandate.
  • A preliminary objection must be a pure point of law and cannot succeed where facts require ascertainment.

Court orders

#
  1. 1.The preliminary objection dated 16th June 2021 is dismissed with costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Articles 42, 69, 70
  • Environment and Land Court Act (ELCA)Section 13(1), (2)(a), (2)(e), (3), (4)
  • Environment Management and Coordination Act (EMCA), 1999Sections 7, 9, 58, 125(1), 129, 130
  • Physical and Land Use Planning Act, No. 13 of 2019 (PLUPA)Sections 2, 76, 78
  • County Government ActNot specified
  • Civil Procedure RulesOrder 21(1)

Cases cited (8)

  • Ken Kasing’a v Daniel Kiplagat Kirui & 5 others
    [2015] eKLR
  • Benson Ambuti Adega & 2 others v Kibos Sugar and Allied Industries Limited & 4 others; Kenya Union of Sugar Plantation and Allied Workers (Interested Party)
    [2019] eKLR
  • Mohammed Said vs County Council of Nandi, Eldoret E & L Petition No. 2 of 2013
    (2013) eKLR
  • Mukhisa Biscuit Manufacturers Ltd. vs. West End Distributors Ltd.
    [1969] E.A.
  • Independent Electoral & Boundaries Commission –v- Jane Cheperenger & 2 Others
    [2015] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • TAIB Investments Limited v Fahim Salim Said & 5 others
    [2016] eKLR
  • West Kenya Sugar Co. Limited – v- Busia Sugar Industries Limited & 2 others
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (9)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Paolo Di Maria & 5 others v Alice M. Kuria & 5 others [2021] KEELC 1674 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1674/eng@2021-10-07

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