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ELCStruck OutPetition No. 7 of 2019 (as styled in the judgment; parties as listed in the petition)· [2021] KEELC 4495 (KLR)

Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) [2021] KEELC 4495 (KLR)

Environment and Land Court
2 February 2021
AOAntony Ombwayo
3,207 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out this environmental petition because the petitioner skipped mandatory complaint channels like the Energy Authority and NEMA before going to court.

What this practically means

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Executive summary

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The petitioner, owner of LR Nos. Siaya/Ramba/719 and 720 in Siaya County, petitioned against eight respondents, alleging unlicensed and unpermitted mining and gold processing by the 2nd and 3rd Respondents causing environmental pollution, failure by state respondents to provide information on the mining, violation of the Ramba community's rights to a clean and healthy environment, fair administrative action and property, and trespass by the 8th Respondent (a electricity supplier) which erected power poles on his land without consent. Two preliminary objections were raised: the 8th Respondent argued the court lacked jurisdiction, the Energy Act 2019 and the Energy (Complaints and Disputes Resolution) Regulations 2012 reserving such complaints to the Energy Authority and the Energy and Petroleum Tribunal, with Section 9(2) and (3) of the Fair Administrative Action Act barring court proceedings; the 2nd Respondent argued the environmental claims fell within NEMA's and the National Environmental Tribunal's mandate under EMCA, whose appeals lie to the ELC under Section 130. Ombwayo J accepted both objections. Applying Samuel Kamau Macharia, Benard Murage and Kibos Distillers, he held that although the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, original jurisdiction does not oust jurisdiction of legislatively mandated organs, and the petitioner had not exhausted statutory remedies. The petition against the 8th Respondent was struck out, the second preliminary objection was allowed and the entire petition was struck out for want of jurisdiction. No order as to costs was made, the court noting the matter was a public interest litigation. The ruling was delivered electronically due to COVID-19 court operational restrictions.

Key legal issues

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01

Jurisdiction over the dispute with the 8th Respondent (electricity poles/way leaves)

Holding

The complaint concerns way leaves/easements in the distribution and supply of electricity, a matter reserved to the Energy Authority and on appeal the Energy and Petroleum Tribunal; Section 9(2) and (3) of the Fair Administrative Action Act removes such disputes from the court

Reasoning

The Energy (Complaints and Disputes Resolution) Regulations 2012 cover complaints on way leaves, easements and rights-of-way. The petitioner's grievance against the 8th Respondent falls squarely within those regulations, and the Fair Administrative Action Act bars court proceedings where an administrative appeal or review exists. The petitioner must first pursue the Authority and, if dissatisfied, the Tribunal.

p. 4
02

Jurisdiction over the environmental/mining claims

Holding

Although the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act over environment and land disputes including mining, the petitioner was required to first exhaust the EMCA mechanisms - NEMA's licensing and enforcement powers and the National Environmental Tribunal - with appeals lying to the ELC under Section 130 of EMCA

Reasoning

The dispute concerns mining, gold processing and resultant pollution, which falls within NEMA's mandate including EIA licensing under Sections 58 and 63 of EMCA. Parliament provided administrative and judicial mechanisms that must be exhausted before approaching the court. Relying on Samuel Kamau Macharia, Murage and Kibos Distillers, the court held its jurisdiction is restricted to appeals from the tribunal on such matters.

p. 6

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and cannot be expanded by judicial craft or innovation
  • Where an alternative statutory remedy exists, it should be pursued before invoking the constitutional jurisdiction
  • Original jurisdiction does not oust the jurisdiction of other legislatively mandated competent organs; where a clear statutory procedure exists it must be strictly followed
  • The Energy Act prevails over other Acts but not over the Constitution

Court orders

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  1. 1.The 1st preliminary objection by the 8th Respondent succeeds and the petition against the 8th Respondent is struck out
  2. 2.The 2nd preliminary objection by the 2nd Respondent is allowed and the petition is struck out for want of jurisdiction
  3. 3.No order as to costs, this being a public interest litigation

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 22, 23(1), 35(1), 40, 42, 69, 70, 159(2), 162(2)(b), 169(1)(d), 157(2)(c)
  • Energy Act 2019Sections 3, 10, 11, 23, 24, 40, 46, 47, 48, 224(2)
  • Energy (Complaints and Disputes Resolution) Regulations 2012Regulations 2, 4, 7, 9
  • Fair Administrative Action Act 2015Sections 9(2) and 9(3)
  • Environment Management and Co-ordination Act (EMCA) (Cap 387)Sections 7, 9, 58, 63, 125, 129(1)-(4), 130
  • Environment and Land Court ActSection 13(1), (2)
  • Physical Planning ActSections 15, 19, 38 (referred to in Kibos Distillers quote)
  • Access to Information Actnot specified

Cases cited (5)

  • Mukisa Biscuits vs West End Distributors Ltd
    (1969) ELR 696
  • Samuel Kamau Macharia and another -v- Kenya Commercial Bank and 2 Others
    Application No. 2 of 2011
  • Benard Murage -v- Fine Serve Africa Limited & 3 others
    [2015] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 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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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) [2021] KEELC 4495 (KLR)", Case Analysis (2021). Petition No. 7 of 2019 (as styled in the judgment; parties as listed in the petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4495/eng@2021-02-02

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