One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others [2021] KEELC 3673 (KLR)
The bottom line
#The High Court struck out Peponi Road residents' challenge to a building project because they skipped the specialised appeals available under Kenya's environmental and planning laws.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of alternative statutory remedies
The High Court should not entertain judicial review where EMCA and the Physical Planning Act provide specialized appeal mechanisms, absent exceptional circumstances
The court relied on sections 129 of EMCA and 13 and 15 of the Physical Planning Act, and on Speaker of National Assembly vs Karume, Kibos Distillers and Makupa Transit Shade, holding the applicants had to take their grievances to the National Environment Tribunal and the liaison committees first, and had not shown exceptional circumstances justifying bypassing those forums.
Res judicata
The suit is not res judicata because the earlier JR E1158 of 2020 was withdrawn and never heard and determined on the merits
The court accepted the applicants' submission that the earlier application was transferred and withdrawn via a Notice of Withdrawal on 18th December 2020, and therefore was not heard and determined on the merits, an essential limb of res judicata.
Locus standi of unincorporated association
The 2nd applicant, an association in formation with no evidence of registration, lacks capacity to sue
The court found that Peponi Road Residents Association (In Formation) had no evidence of registration, distinguishing public-interest standing under Articles 22 and 258 from capacity to sue as an unincorporated body which ought to sue through representatives under section 41 of the Societies Act.
Legal principles established
#- Where a statute prescribes an alternative remedy or appeal procedure, that procedure must be exhausted before resort to judicial review, save in exceptional circumstances
- Challenges to EIA study reports and EIA licences lie before the National Environment Tribunal under section 125 of EMCA
- Jurisdiction cannot be conferred by the craft of pleadings or counsel
Court orders
#- 1.The preliminary objections by the 1st and 3rd respondents are upheld
- 2.The Notice of Motion dated 23rd December 2020 and the entire proceedings are struck out
- 3.Costs of the proceedings are awarded to the respondents
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (Fair Administrative Action Act and Law Reform Act); contested on exhaustion of statutory remedies under sections 125 and 129 of the Environmental Management and Co-ordination Act and sections 13 and 15 of the Physical Planning Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others [2021] KEELC 3673 (KLR)", Case Analysis (2021). Judicial Review Application No. E1158 of 2020 (Notice of Motion dated 23rd December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3673/eng@2021-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.