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ELCStruck OutPetition dated 15th October 2020, filed 21st October 2020 (Malindi)· [2021] KEELC 2390 (KLR)

Omar Salim Mwakweli & 3 others v Vipingo Development Limited & 2 others [2021] KEELC 2390 (KLR)

Environment and Land Court
30 July 2021
JOJ.O. Olola
4,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kilifi residents lost their court challenge to an LPG facility because Kenya's environment law requires EIA licence disputes to go to the National Environment Tribunal first.

What this practically means

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Executive summary

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The four Petitioners challenged the proposed construction of a 22,000 MT LPG storage facility by Vipingo Development Limited on LR No. 4393/III/MN at Vipingo, Kilifi County, seeking declarations that the project breached Article 42 of the Constitution, that a Strategic Environmental Assessment was required, that NEMA and the County Government of Kilifi failed in their environmental oversight duties, and prohibitory, mandamus and restoration orders. The 1st Respondent filed a Replying Affidavit showing it had obtained an EIA Licence from NEMA on 10th December 2019 after gazettement and newspaper notices inviting public comments, ERC inspection, and approval of building plans by the County Government, and lodged a Preliminary Objection dated 18th January 2021 contending that the Court lacked jurisdiction because EMCA channels challenges to EIA Licences to the National Environment Tribunal or National Environmental Complaints Committee. Justice J.O. Olola upheld the objection. Relying on the Lillian S doctrine, Sound Equipment, Samson Chembe Vuko and Patrick Musimba, the Court held that Section 129 of EMCA requires aggrieved persons to appeal to the NET within 60 days, with appeals thereafter lying to the ELC under Section 30, and that peripheral constitutional references cannot confer jurisdiction where a statute prescribes the redress channel. The Petition was struck out, with each party bearing their own costs in recognition of the Petitioners' public-spiritedness.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over challenges to an EIA Licence

Holding

The Court lacks jurisdiction; challenges to EIA Licences must be made to the National Environment Tribunal under Section 125/129 of EMCA, with appeals lying to the ELC under Section 30.

Reasoning

NEMA issues EIA Licences under Sections 58 and 63 of EMCA. Section 125 establishes the NET, and Section 129 gives any person aggrieved by the grant of a licence 60 days to appeal to the Tribunal. Section 30 permits appeal from the Tribunal to the ELC. The Petitioners' complaints arose directly from the issuance of the EIA Licence yet they never participated in the public participation process. Following Lillian S and Sound Equipment, the specialized Tribunal must be given the first opportunity; the alleged constitutional infringements stem from the Petitioners' failure to follow the prescribed procedure.

p. 5
02

Whether constitutional framing of a dispute ousts the statutory forum

Holding

No - peripheral references to the Constitution do not confer jurisdiction where substantive statutory provisions govern and prescribe the channel of redress.

Reasoning

The Court relied on Samson Chembe Vuko and Patrick Musimba for the principle that where a specific dispute-resolution mechanism is prescribed by statute, it must be pursued first before invoking the High Court's inherent jurisdiction, per Article 159(2)(c) of the Constitution promoting alternative dispute resolution. The Constitutional and Human Rights Division had similarly held in Musimba that where redress is available elsewhere, it must be pursued within that rubric.

p. 6

Legal principles established

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  • Where a statute provides a clear dispute-resolution mechanism, an aggrieved party must resort to it before invoking the High Court's/ELC's jurisdiction; peripheral constitutional references do not confer jurisdiction

Court orders

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  1. 1.The Petition dated 15th October 2020 and filed on 21st October 2020 is struck out
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 42, 69, 70, 159(2)(c), 165(3)(a)
  • Environmental Management and Coordination Act, No. 8 of 1999 (EMCA)Sections 30, 58(1), 59(1), 63, 125, 129(1)

Cases cited (7)

  • Owners of the Motor Vessel "Lillian S" –vs- Caltex Oil (Kenya) Ltd
    (1989) 1 KLR 1
  • Karisa Chengo & 2 Others –vs- Republic
    Criminal Appeal Nos. 44, 45 and 76 of 2014 (2015) eKLR
  • Republic –vs- NEMA Ex-Parte Sound Equipment Ltd
    CACA No. 84 of 2010 (2011) eKLR
  • Samson Chembe Vuko –vs- Nelson Kilimo & 2 Others
    (2016) eKLR
  • Patrick Musimba –vs- National Land Commission & 4 Others
    (2016) eKLR
  • Speaker of the National Assembly –vs- Karume
    (2008) 1 KLR 426
  • Narok County Council –vs- Trans Mara County Council & Another
    Civil Appeal No. 25 of 2000
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act read with EMCA; the court held it lacked jurisdiction in favour of the National Environment Tribunal under Section 129 of EMCA

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, "Omar Salim Mwakweli & 3 others v Vipingo Development Limited & 2 others [2021] KEELC 2390 (KLR)", Case Analysis (2021). Petition dated 15th October 2020, filed 21st October 2020 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2390/eng@2021-07-30

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