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ELCStruck OutJudicial Review Application No. E1158 of 2020 (Notice of Motion dated 23rd December 2020)· [2021] KEELC 3673 (KLR)

One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others [2021] KEELC 3673 (KLR)

High Court of Kenya
15 April 2021
4,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ex parte Applicants sought judicial review orders of certiorari to quash an Environmental Impact Assessment Licence issued by NEMA to the 3rd respondent, the underlying EIA report, and a Form PPA2 development permission issued by Nairobi City County, together with declarations of violation of Article 47 and the Fair Administrative Action Act, prohibition against continued construction, and general damages. The 1st and 3rd respondents raised preliminary objections contending that the High Court lacked jurisdiction because the applicants had not exhausted statutory remedies under sections 125 and 129 of the Environmental Management and Co-ordination Act (appeals to the National Environment Tribunal) and sections 13 and 15 of the Physical Planning Act (appeals to liaison committees), that the 2nd applicant was an unincorporated body without capacity to sue, and that the suit was res judicata given earlier JR E1158 of 2020. The court upheld the exhaustion objection, holding that challenges to EIA licences belong to the National Environment Tribunal and development-permission disputes to the statutory liaison committees, and that no exceptional circumstances justified bypassing those forums. However, the court rejected the res judicata objection, finding the earlier application was withdrawn and never determined on the merits. It also held the 2nd applicant lacked locus standi absent evidence of registration. The Notice of Motion and entire proceedings were struck out with costs to the respondents.

Key legal issues

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01

Exhaustion of alternative statutory remedies

Holding

The High Court should not entertain judicial review where EMCA and the Physical Planning Act provide specialized appeal mechanisms, absent exceptional circumstances

Reasoning

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.

p. 6
02

Res judicata

Holding

The suit is not res judicata because the earlier JR E1158 of 2020 was withdrawn and never heard and determined on the merits

Reasoning

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.

p. 6
03

Locus standi of unincorporated association

Holding

The 2nd applicant, an association in formation with no evidence of registration, lacks capacity to sue

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The preliminary objections by the 1st and 3rd respondents are upheld
  2. 2.The Notice of Motion dated 23rd December 2020 and the entire proceedings are struck out
  3. 3.Costs of the proceedings are awarded to the respondents

Authorities

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Legislation

  • Environmental Management and Co-ordination ActSections 125, 129(1)-(4)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 17, 21, 22
  • Physical Planning ActSections 13(1)-(3), 15(1)-(3)
  • Fair Administrative Action ActSections 9(2) and (3); Article 47
  • Law Reform ActRule 9(3)
  • Societies ActSection 41
  • Constitution of Kenya, 2010Articles 22, 47, 258

Cases cited (26)

  • Kibos Distillers Ltd and 4 Others vs Benson Ambuti Adega and 3 Others
    [2020] eKLR
  • KO Holdings Ltd vs County Government of Kiambu and Another
    (2019) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA 696
  • County Government of Migori vs INB Management IT Consulting Ltd
    [2019] eKLR
  • Ocheja Emmanuel Dangana vs Hon. Atai Aidoko Aliusman & 4 Others
    Supreme Case No II of 2012
  • Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others
    [2013] eKLR
  • Samuel Kamau Macharia & Another vs KCB Ltd & Others
    [2012] eKLR
  • White Horse Investment's Ltd vs Nairobi City County
    [2019] eKLR
  • Charles Ngigi Ndung'u & 2 Others vs County Government of Kiambu & 7 Others
    [2019] eKLR
  • Speaker of National Assembly vs Hon. James Njenga Karume
    [2008] 1KLR 425
  • Koome Mwambia & 3 Others vs Deshun Properties Company Ltd & 4 Others
    [2014] eKLR
  • Symon Wangombe Gathua & 6 Others vs A.G & 6 Others
    [2020] eKLR
  • Sagal Investment Ltd & Another vs Gulf African Bank Ltd & Another
    [2020] eKLR
  • Republic vs Chairman Evurore Land Disputes Tribunal & 2 Others Ex parte Njeru Kirimo
    [2014] eKLR
  • Political Parties Forum Coalition & 3 Others vs Registrar of Political Parties & 8 Others
    [2016] eKLR
  • Albert Mumma in his capacity as Chairman Karen-Langata District Association (KLDA) vs Director General (NEMA) & 2 Others
    [2019] eKLR
  • David Awori & 2 Others on behalf Gigiri Village Association vs Director General (NEMA) & 2 Others
    [2019] eKLR
  • Micah Mutoko & 4 Others vs Director General (NEMA) & 2 Others
    [2018] eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others
    [2014] eKLR
  • Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & Another
    [2014] eKLR
  • George Kamau Kimani & 4 others vs County Government of Trans Nzoia & Another
    [2014] eKLR
  • Beljing Industrial Designing & Research Institute vs Lagoon Development Ltd
    [2015] eKLR
  • Patrick Musumba vs National Commission & 4 others
    Nairobi [2016] eKLR
  • Republic vs NEMA Ex parte Sound Equipment Ltd
    [2011] eKLR
  • Republic vs NEMA
    Civil Appeal No 84 of 2010
  • Director of Planning and Architecture County Government of Mombasa vs Makupa Transit Shade Ltd
    [2019] eKLR
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

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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, "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.