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ELCStruck Out· [2021] KEELC 2858 (KLR)
Runda Gardens Residents Association v National Environment Management Authority (NEMA) & another [2021] KEELC 2858 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The plaintiff, through its Chairman Vincent Kioko, filed a Notice of Motion dated 19th May 2020 under Order 40 rules 1 and 2 of the Civil Procedure Rules seeking to restrain the 2nd defendant from constructing a church on land parcel L.R No. 27397 (formerly LR No. 12672/152) in Runda Gardens Estate, and an order for demolition of the proposed church developments, contending that the 1st defendant had granted a licence for construction in a residential area without responding to residents' concerns. The 2nd defendant raised a Preliminary Objection dated 7th July 2020 arguing that the court lacked jurisdiction because the plaintiff had not exhausted the statutory dispute resolution mechanisms under Section 129 of the Environmental Management and Co-ordination Act, and that the suit was premature. The court heard the Preliminary Objection together with the Motion, with written submissions. Relying on Section 129 EMCA, Sections 9(2) and 9(3) of the Fair Administrative Action Act, and authorities including the Mumma, Awori, Musumba, Karume and Kibos Distillers decisions, the court held that challenges to licences and EIA approvals belong first to the National Environment Tribunal, and that the ELC could not usurp the Tribunal's original jurisdiction. Finding no exceptional circumstances to justify bypassing the statutory mechanisms, the court upheld the Preliminary Objection, declined to consider the merits of the Motion, and struck out the Notice of Motion and the entire suit with costs to the defendants/respondents. Judgment was delivered in Nairobi on 17th June 2021 by L. Komingoi, Judge.
Key legal issues
#01
Whether the plaintiff was required to exhaust the statutory dispute resolution mechanisms under the Environmental Management and Co-ordination Act and the Physical Planning Act before filing suit
Holding
Yes - the plaintiff ought to have first invoked the National Environment Tribunal, and the court lacks jurisdiction over the dispute
Reasoning
The plaintiff's grievance concerned the grant of a licence/approvals to construct a church in a residential area. Section 129 of EMCA channels appeals against licensing decisions to the National Environment Tribunal, and Section 9(2) and (3) of the Fair Administrative Action Act requires exhaustion of alternative mechanisms. Relying on Mumma, Awori, Musumba and Kibos Distillers, the court held the Tribunal is the specialized body to scrutinize EIA reports and licences, and no exceptional circumstances justified bypassing it.
p. 3
Legal principles established
#- Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
- Challenges to Environmental Impact Assessment study reports and/or EIA licences must first be made to the National Environment Tribunal under EMCA
- Jurisdiction cannot be conferred by the craft of counsel or a litigant drawing pleadings so as to oust the jurisdiction conferred on a Tribunal or other institution by the Constitution or statute
Court orders
#- 1.The Preliminary Objection dated 7th July 2020 is upheld
- 2.The Notice of Motion dated 19th May 2020 is struck out
- 3.The entire suit is struck out with costs to the defendants/respondents
- Jurisdiction invoked
- Order 40 rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act; jurisdiction contested under Section 129 of the Environmental Management and Co-ordination Act and the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Runda Gardens Residents Association v National Environment Management Authority (NEMA) & another [2021] KEELC 2858 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2858/eng@2021-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.