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ELCStruck OutPetition at Thika (Notice of Motion dated 6th October 2020)· [2021] KEELC 2241 (KLR)

Kenneth Ngure Mwaura & another v Rubis Energy Kenya & 2 others [2021] KEELC 2241 (KLR)

Environment and Land Court
29 July 2021
LGL. GACHERU
3,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Residents who objected to a petrol station in Ruiru lost their entire case because they skipped mandatory appeals to NEMA's tribunal and the county planning committee before going to court.

What this practically means

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Executive summary

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The Petitioners, residents of Ruiru Sunrise Estate, moved the Court by Notice of Motion dated 6th October 2020 under Articles 27(1), 47(1) and 50(1) of the Constitution and the Fair Administrative Actions Act, seeking interim conservatory orders to stop construction of a petrol filling station on L.R No. Ruiru East Block/1/118 along the Eastern Bypass, and orders compelling the Respondents to disclose EIA study reports, strategic impact assessment reports, the panel evaluation report, lead agency comments and public hearing records relating to EIA Licence NEMA/EIA/PSI/9173 and the change of user from agricultural to light industrial use. The 2nd Respondent filed a preliminary objection on jurisdiction under section 61(3) of the Physical and Land Use Planning Act 2019, arguing the Petitioners had not exhausted the statutory appeal to the County Liaison Committee; the 3rd Respondent (NEMA) maintained it had complied with the law in issuing the licence. The Court framed two issues: jurisdiction and the merit of the application. Applying the Mukisa Biscuits test, it found the jurisdictional challenge a pure point of law. Relying on section 129(1) of EMCA, the Court held the Petitioners ought to have appealed to the National Environmental Tribunal within 60 days, and under the Physical and Land Use Planning Act, to the County Liaison Committee first. Following Kibos Distillers and KO Holding Ltd, the Court upheld the preliminary objection, found the application unmerited, struck out the entire Petition, and made no orders as to costs.

Key legal issues

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01

Whether the jurisdictional challenge qualifies as a preliminary objection

Holding

It does - the issue of jurisdiction is a pure point of law within the Mukisa Biscuits rubric

Reasoning

The Court applied the classic definition of a preliminary objection: a pure point of law argued on the assumption that all facts pleaded are correct, with no facts to be ascertained. Since all Respondents collectively raised lack of jurisdiction as a pure point of law, the objection fell within the Mukisa Biscuits category and could be determined without ascertainment of facts.

p. 3
02

Whether the Court has jurisdiction over the Petition

Holding

No - the Petitioners were required to appeal to the National Environmental Tribunal under section 129(1) of EMCA and to the County Liaison Committee under section 61(3) of the Physical and Land Use Planning Act 2019 before coming to Court

Reasoning

The Petitioners' grievance was against the grant of EIA licences and change of user approvals. Section 129(1) of EMCA provides a 60-day appeal window to the Tribunal for persons aggrieved by licensing decisions, and section 61(3) of the Physical and Land Use Planning Act 2019 requires challenges to planning decisions to go first to the Liaison Committee. Having failed to pursue these statutory remedies, the Petitioners invoked the Court's jurisdiction prematurely. The Court was bound by Kibos Distillers.

p. 4
03

Whether the Notice of Motion dated 6th October 2020 is merited

Holding

Not merited, as the Court lacks jurisdiction and there are statutory alternative dispute resolution mechanisms

Reasoning

Having found the preliminary objection merited, the Court held its hands tied: without jurisdiction it could not entertain the application for conservatory orders or disclosure of documents. Any action taken without jurisdiction is null and void, and consequently the entire suit could not stand.

p. 5

Legal principles established

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  • Jurisdiction must be determined first; a court without jurisdiction must down its tools
  • Where statute provides an alternative dispute resolution forum, a party must exhaust it before invoking the Court's jurisdiction

Court orders

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  1. 1.Upheld the Preliminary Objection as raised by the Respondents
  2. 2.Found the Petitioners/Applicants' Application dated 6th October 2020 not merited
  3. 3.Struck out the entire Petition or suit with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 27(1), 47(1), 50(1)
  • Fair Administrative Actions Act No. 4 of 2015Sections 8 and 11
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4, 19, 23, 24
  • Environmental Management and Coordination Act No. 8 of 1999Sections 57A, 58, 129(1); 2nd Schedule Part 1 and 2(c)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 16, 17, 18, 20, 21, 22
  • Physical and Land Use Planning Act 2019Sections 61(3)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Mukisa Biscuits Manufacturers Ltd. Vs West End Distributors Ltd.
    [1969] E.A. 696
  • Avatar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Quick Enterprises Ltd. Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • The Owners of the Motor Vessel 'Lillian S' Vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Ndimu Vs Ndimu & Another
    (2007) 1 EA 269
  • Kibos Distillers Ltd & 4 others Vs Benson Ambuti Adega & 3 others
    (2020) eKLR
  • KO Holding Ltd vs County Government of Kiambu & Another
    Petition No. 117 of 2019
Jurisdiction invoked
Articles 27(1), 47(1) and 50(1) of the Constitution of Kenya; Sections 8 and 11 of the Fair Administrative Actions Act No. 4 of 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Kenneth Ngure Mwaura & another v Rubis Energy Kenya & 2 others [2021] KEELC 2241 (KLR)", Case Analysis (2021). Petition at Thika (Notice of Motion dated 6th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2241/eng@2021-07-29

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