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ELCPartially AllowedPetition dated 26th August 2020 (case number not stated)· [2021] KEELC 2891 (KLR)

Lucy Kinuthia & 47 others (Magoko Ladies Group) v George Mwangi Munyua & 2 others [2021] KEELC 2891 (KLR)

Environment and Land Court
17 June 2021
LGL. GACHERU
3,322 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed two attempts to throw out residents' environmental petition, but sent the EIA licence question to the National Environmental Tribunal.

What this practically means

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Executive summary

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The 47 Petitioners filed a Petition dated 26th August 2020 alleging violation of their constitutional rights arising from a change of user and EIA license granted to the 1st Respondent by the 2nd Respondent, including alleged violations of the right to a clean and healthy environment, inadequate public participation and failure to notify the public. Two preliminary objections were raised: the 1st Respondent/Objector contended the Petition was fatally defective and incompetent for want of a resolution/authority authorizing the 1st Petitioner to act for the 47 Petitioners under Order 1 Rule 13 of the Civil Procedure Rules, and was an abuse of process; the 3rd Respondent (County Government entity, through its Director of Litigation Keziah Mbugua) contended the court lacked jurisdiction because the Petitioners had failed to exhaust the appeal mechanism in Section 61 of the Physical and Land Use Planning Act 2019, which routes development-permission grievances to the County Physical and Land Use Planning Liaison Committee and then to this Court. Applying Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd, the court found the abuse-of-process ground was not a pure point of law, but the defectiveness and jurisdictional grounds were properly raised. The 1st Respondent's objection was dismissed: standing in public law litigation has been relaxed, and per Insignia Limited v Zaddock failure to file authority at filing does not invalidate a suit. On the 3rd Respondent's objection, the court held it has jurisdiction under Article 162(2)(b) of the Constitution and Sections 4 and 13 of the Environment and Land Court Act over constitutional petitions concerning environment and land. Bound by the Supreme Court's decision in Benson Ambuti Adega v Kibos Distillers, and following Lydia Kaguna Japheth v Mbesa Investments, the court found the Petition multifaceted, referred the dispute on the legality of the EIA license to the National Environmental Tribunal, and retained the constitutional issues for its own determination. Both preliminary objections were dismissed entirely and the rest of the issues retained. The ruling was delivered virtually at Thika on 17th June 2021.

Key legal issues

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01

Whether the 1st Respondent's preliminary objection on want of authority to file the Petition is merited

Holding

Not merited; the Petition cannot be struck out for want of a filed authority since the 1st Petitioner can file suit on behalf of the other Petitioners under the constitutional right to petition

Reasoning

The court held that constitutional petitions do not require authority to be filed at the time of filing, and standing in public interest litigation has been relaxed. Following Insignia Limited v Zaddock, a resolution or authority may be filed any time before the suit is fixed for hearing, so its absence does not invalidate the Petition. The court however cautioned that a petition cannot be filed in another's name without express permission.

p. 3
02

Whether the 3rd Respondent's preliminary objection on lack of jurisdiction for failure to exhaust statutory appeal mechanisms under Section 61 of the Physical and Land Use Planning Act 2019 is merited

Holding

Not merited; the court has jurisdiction over the multifaceted constitutional petition, but the EIA license issue is referred to NET and the rest retained

Reasoning

The court found the Petition multifaceted, alleging violation of the right to a clean and healthy environment, inadequate public participation and non-notification of change of user. It held it has jurisdiction under Article 162(2)(b) and the ELC Act to hear constitutional petitions relating to environment and land. Bound by the Supreme Court's decision in Benson Ambuti Adega, it reserved constitutional issues and referred the EIA license dispute to NET, following Lydia Kaguna Japheth.

p. 4
03

Whether the matters raised amount to properly raised preliminary objections

Holding

The 1st Respondent's ground on Order 1 Rule 13 was a pure point of law properly raised, but the abuse of process ground required ascertainment of facts; the 3rd Respondent's jurisdictional objection was a pure point of law

Reasoning

Applying Mukisa Biscuit, the court distinguished between grounds requiring pure points of law and those requiring ascertainment of facts or exercise of judicial discretion. The defectiveness ground under Order 1 Rule 13 and the jurisdictional challenge were properly raised; the abuse-of-process ground was not, as facts would have to be probed.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law; if facts must be ascertained it is not properly raised
  • Jurisdiction is a pure point of law properly raised by preliminary objection
  • Standing in public law litigation has been greatly relaxed under the Constitution
  • Failure to file an authority to sue at filing does not invalidate the suit; it may be filed before the suit is fixed for hearing
  • Following the Supreme Court's decision in Benson Ambuti Adega, where a petition is multifaceted, constitutional environmental issues should be reserved pending determination of EIA licensing issues by the NET

Court orders

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  1. 1.Both Notices of Preliminary Objections are found not merited and are dismissed entirely
  2. 2.The dispute touching on the legality of the Environmental Impact Assessment (EIA) license is referred to the National Environmental Tribunal (NET)
  3. 3.The Court retains the rest of the issues for determination by the Court
  4. 4.It is so ordered

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 Rule 13(1) & (2)
  • Civil Procedure Rules 2010Order 21 rule 1
  • Physical and Land Use Planning Act 2019Section 61(3)
  • Physical and Land Use Planning Act 2019Section 61(4)
  • Physical Planning Act 1996Section 57(5) (as cited by the 3rd Respondent)
  • Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Overriding objective
  • Constitution of KenyaArticle 3(1)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSections 4 and 13
  • Environmental Management and Coordination Act (EMCA)Section 125(1)
  • Environmental Management and Coordination Act (EMCA)Section 130

Cases cited (7)

  • Abdulla Abshir & 38 others Vs Yasmin Farah Mohamed (2015) eKLR
    (2015) eKLR
  • Mukisa Biscuit Manufacturer Ltd Vs Westend Distributers Ltd (1969) E A 696
    (1969) E A 696
  • Sollo Nzuki Vs Salaries and Remuneration Commission & 2 others [2019] eKLR
    [2019] eKLR
  • Insignia Limited versus Zaddock & 3 others (2012)
    (2012)
  • Republic versus Registrar General and 13 others Misc. Application No. 67 of 2005 (2005) eKLR
    Misc. Application No. 67 of 2005 (2005) eKLR
  • Benson Ambuti Adega & 2 Others Vs Kibos Distillers Limited & 5 Others (2020) eKLR
    (2020) eKLR
  • Lydia Kaguna Japheth & 2 others v Mbesa Investments Limited & 2 others [2020] eKLR
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 4 and 13 of the Environment and Land Court 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, "Lucy Kinuthia & 47 others (Magoko Ladies Group) v George Mwangi Munyua & 2 others [2021] KEELC 2891 (KLR)", Case Analysis (2021). Petition dated 26th August 2020 (case number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2891/eng@2021-06-17

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