Julius Nyagah Kithome v Janton Investment Limited & another [2021] KEELC 4446 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ELC lacks jurisdiction at first instance in favour of NEMA and the National Environment Tribunal under EMCA
The preliminary objection was dismissed; the court held it has jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act to hear the suit at first instance.
The court distinguished Bridge Gate Holding, noting that the judge there never held the ELC lacked jurisdiction. Section 13(1) of the ELC Act confers original and appellate jurisdiction over all disputes relating to environment and land. Article 70(1) allows a person alleging violation of the right to a clean and healthy environment to apply to a court for redress in addition to any other legal remedies, and Article 70(3) removes the need to demonstrate loss or injury. Both EMCA and the ELC Act embrace the precautionary principle, and declining jurisdiction would amount to dereliction of duty.
Whether the suit is premature, bad in law, incompetent and an abuse of court process
The objection failed; the court found the suit properly before it since the plaintiff invoked constitutional remedies in addition to the statutory ones.
The court noted that although the institutions established under EMCA are capable of handling the matters raised, the plaintiff's claim falls within Article 70(1)'s phrase 'in addition to any other legal remedies that are available to the same matter'. The 2010 Constitution broadens locus standi, and the plaintiff need not demonstrate loss or injury. The reliefs sought, though framed as orders to remove contaminated soil, amount to environmental conservation and restoration orders which a court may grant under Section 112(1) of EMCA.
Legal principles established
#- The Environment and Land Court has original and appellate jurisdiction to hear and determine all disputes relating to environment and land under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, and it would be a dereliction of duty for the court to decline jurisdiction over weighty environmental issues merely because EMCA institutions could also handle them.
Court orders
#- 1.The Notice of Preliminary Objection dated 8th July, 2020 is dismissed
- 2.The plaintiff should fully comply with the provisions of Order 11, CPR, within 14 days of today
- 3.The defendants should fully comply with the provisions of Order 11, CPR, within 14 days after receipt of the plaintiff's compliance documents
- 4.Costs regarding this Notice of Preliminary Objection shall be in the cause
- 5.Parties will come to court for directions on 15th March, 2021
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Nyagah Kithome v Janton Investment Limited & another [2021] KEELC 4446 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 22nd June, 2020; objection dated 8th July, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4446/eng@2021-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.