Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (application dated 22nd June, 2020; objection dated 8th July, 2020)· [2021] KEELC 4446 (KLR)

Julius Nyagah Kithome v Janton Investment Limited & another [2021] KEELC 4446 (KLR)

Environment and Land Court
10 February 2021
6,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The 2nd defendant filed a Notice of Preliminary Objection dated 8th July, 2020, contending that the Environment and Land Court lacked jurisdiction at first instance over the plaintiff's suit concerning alleged use and burial of contaminated soil (including medical waste) in upgrading the stadium at Kathwana Primary School. The 2nd defendant relied on Article 159(2)(c) of the Constitution and sections 125, 126, 127, 129 and 130 of the Environment Management and Co-ordination Act (EMCA), submitting that the plaintiff should first have gone to NEMA's Public Complaints Committee and then the National Environment Tribunal, with appeals lying to this Court under section 130. It further argued the suit was premature, incompetent and an abuse of process, and that the plaintiff had not pleaded constitutional violations with the precision required. The plaintiff countered that the Tribunal's jurisdiction under section 129 is limited to appeals from NEMA decisions; his claim concerned violation of the right to a clean and healthy environment under Articles 42, 69 and 70, which section 13 of the ELC Act reserves for this Court. The Court (Dr. P. M. Njoroje, ELC Judge) held that section 13(1) of the ELC Act and Article 162(2)(b) confer original and appellate jurisdiction over all environment and land disputes; that Article 70(1) permits redress in addition to other remedies and Article 70(3) dispenses with proof of loss; that the reliefs sought amounted to environmental conservation/restoration orders under section 112(1) of EMCA; and that it would be a dereliction of duty to decline jurisdiction. It distinguished Bridge Gate Holding. The preliminary objection was dismissed, with directions on Order 11 compliance and costs in the cause.

Key legal issues

#
01

Whether the ELC lacks jurisdiction at first instance in favour of NEMA and the National Environment Tribunal under EMCA

Holding

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.

Reasoning

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.

p. 9
02

Whether the suit is premature, bad in law, incompetent and an abuse of court process

Holding

The objection failed; the court found the suit properly before it since the plaintiff invoked constitutional remedies in addition to the statutory ones.

Reasoning

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.

p. 9

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. 1.The Notice of Preliminary Objection dated 8th July, 2020 is dismissed
  2. 2.The plaintiff should fully comply with the provisions of Order 11, CPR, within 14 days of today
  3. 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. 4.Costs regarding this Notice of Preliminary Objection shall be in the cause
  5. 5.Parties will come to court for directions on 15th March, 2021

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159(2)(c); Article 159(2)(d); Article 162(2)(b); Article 42; Article 69; Article 70(1); Article 70(3); Article 22
  • Environment Management and Co-ordination Act, Chapter 387Sections 3(3), 31, 32, 33, 33(2) and (3), 108, 112(1), 125, 125(1), 126, 127, 127(2)(e), 129, 129(1), 129(2), 130
  • Environment and Land Court ActSections 4, 13(1), 13(2), 13(2)(a), 13(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4(1), 10(2)
  • Civil Procedure RulesOrder 11

Cases cited (14)

  • Republic -vs- Karisa Chengo & 2 others
    (2017) eKLR
  • Samuel Kamau Macharia -vs- Kenya Commercial Bank & 2 Others
    (2012) eKLR
  • The Owners of Motor Vessel Lilian “S” vs- Caltex Oil Kenya Ltd
    [1989] KLR 1
  • County Government of Nyeri -vs- National Environment Management Authority
    [2014] eKLR
  • Bridge Gate Holding Ltd -vs- National Environment Management Authority & another
    [2015] eKLR
  • Josephat Muchiri Muiruri & Another vs. Yusuf Abdi Adan
    Civil Appeal No. 715 of 2006
  • Kakuta Maimai Hamisi vs. Peris Pesi Tobiko & 2 Others
    [2013] eKLR
  • Trusted Society of Human Rights Alliance -vs- Attorney General and others
    [2012] eKLR
  • Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Anarita Karimi Njeru
    (1) 1979 KLR 154
  • A.K.M.M -vs- E.M.K.K & 2 others
    [2014] eKLR
  • Francis Kirima M'ikunyua -vs- Inspector General of Police & 3 others
    [2016] eKLR
  • Willis Evans Otieno -vs- Law Society of Kenya & 2 others
    [2011] eKLR
  • Getrude Mukoya Mwenda & Others vs CS Infrastructure & Housing Urban Development
    (2020) eKLR / Mombasa ELC 22 of 2019
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.