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ELCOtherELC Case (Nyeri), plaint dated 4th February 2021· [2021] KEELC 2397 (KLR)

Laikipia North Natural Resources Suppliers & Builders Limited v Loata Sand Dealers Sacco Society Limited & another [2021] KEELC 2397 (KLR)

Environment and Land Court
28 July 2021
YAY. M. Angima
1,481 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a preliminary objection can't be used to kick a case out when it depends on facts nobody actually pleaded.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants by plaint dated 4th February 2021 seeking a declaration that the weighbridge erected at Ilpolei by the 1st Defendant with the authority of the 2nd Defendant was illegal and be removed, and a permanent injunction restraining the Defendants from operating the weighbridge, levying cess, or issuing stickers or receipts to sand dealers lacking a valid licence. The gist of the claim was that the 2nd Defendant had unlawfully authorized the 1st Defendant to supervise sand harvesting and collect levies in Laikipia North sub-county, to the exclusion of the lawful Naibor weighbridge run by the County Government of Laikipia. Before the suit could proceed, the 1st Defendant raised a preliminary objection dated 9th March 2021 contending that the court lacked jurisdiction because the Plaintiff, allegedly aggrieved by refusal of a licence by NEMA, ought first to have appealed to the National Environment Tribunal under Section 129 of EMCA, with a further appeal lying to this court under Section 130. The Plaintiff countered that no evidence showed it had ever applied for or been refused a licence, and that the objection rested on disputed facts. The court framed a sole issue: whether the preliminary objection was well founded. Applying the Mukisa Biscuits definition, it held the objection was not a pure point of law; neither the plaint nor the defence pleaded any refusal of a licence, and being unlicensed is not the same as being denied a licence. The objection was overruled with costs in the cause. The main suit now proceeds to hearing.

Key legal issues

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01

Whether the 1st Defendant's preliminary objection on exhaustion of remedies under Section 129 of EMCA was well founded

Holding

The preliminary objection was not well taken because neither party pleaded that the Plaintiff applied for and was refused a licence, the factual predicate for an appeal to NET

Reasoning

Section 129(1) of EMCA confers a right of appeal to NET on a person aggrieved by a refusal to grant a licence. The court examined the plaint, defence and replying affidavit and found no averment that the Plaintiff applied for or was denied a licence by NEMA. Being unlicensed is not the same as being refused a licence. The objection therefore rested on disputed and unproven facts and could not form a pure point of law.

p. 3
02

Whether the matters raised qualified as a preliminary objection in law

Holding

They did not, since a preliminary objection must be a pure point of law argued on assumed pleaded facts

Reasoning

Adopting the classic formulation in Mukisa Biscuits, the court held that the objection required factual ascertaining - whether the Plaintiff had applied for and been refused a licence - and hence was improperly raised. No pleading brought the suit within Section 129(1) of EMCA.

p. 3

Legal principles established

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  • A preliminary objection raising a pure point of law cannot be raised where facts must be ascertained or where it rests on factual foundations not pleaded
  • An unlicensed dealer who has never applied for a licence cannot appeal to the National Environment Tribunal under Section 129(1) of EMCA, since that provision requires a refusal of a licence as the triggering event

Court orders

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  1. 1.The 1st Defendant's notice of preliminary objection dated 9th March 2021 is overruled
  2. 2.Costs of the preliminary objection shall be in the cause

Authorities

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Legislation

  • Environmental Management and Co-ordination ActSection 129(1)
  • Environmental Management and Co-ordination ActSection 130

Cases cited (5)

  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited
    [1969] EA 696
  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    [1989] KLR 1
  • Angela Mbugua and 4 Others v KQ Holdings Limited and 2 Others
    [2020] eKLR
  • Oraro v Ombaja
    [2005] 1 KLR 141
  • George Kamau Kimani and 4 Others v County Government of Transnzoia and Another
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the plaint; preliminary objection on exhaustion under Section 129 of the Environmental Management and Co-ordination Act

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, "Laikipia North Natural Resources Suppliers & Builders Limited v Loata Sand Dealers Sacco Society Limited & another [2021] KEELC 2397 (KLR)", Case Analysis (2021). ELC Case (Nyeri), plaint dated 4th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2397/eng@2021-07-28

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