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ELCStruck OutNot stated in the judgment extract· [2021] KEELC 4752 (KLR)

Buku v National Environmental Authority & 3 others (Environment & Land Case E289 of 2021) [2021] KEELC 4752 (KLR)

Environment and Land Court
14 October 2021
6,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out an environmental lawsuit because the plaintiff had to first use cheaper, faster statutory appeal channels before going to court.

What this practically means

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Executive summary

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The Plaintiff filed a suit dated August 3, 2021 against four Defendants concerning a proposed development on LR No 3734/357, Othaya Road, seeking declarations of violation of environmental rights under Articles 42, 69 and 35 of the Constitution and EMCA, quashing of a change-of-user approval, revocation of an environmental impact assessment licence, injunctions, re-design orders and damages. Contemporaneously, she sought temporary injunctions; on August 5, 2021, Justice K Bor ordered maintenance of the status quo. The 3rd Defendant raised a preliminary objection contending the court lacked jurisdiction by dint of Section 129(1)(a) EMCA, regulation 46(1)(f) of the EIA Regulations 2003, and Section 78(b) of the Physical and Land Use Planning Act 2019 - invoking the doctrines of exhaustion and avoidance. The 1st, 2nd and 4th Defendants supported the objection; the Plaintiff relied on Section 13 ELC Act and Section 3(3) EMCA and ELC decisions. The court framed three issues and held that although the ELC has original and appellate jurisdiction over environmental disputes, statutory remedies (the National Environmental Tribunal and the County Physical and Land Use Planning Liaison Committee) existed and had not been exhausted. Relying on Kibos Distillers, Muthinja Kabiru and related authority, it held that courts should be fora of last resort and that multifaceted claims cannot confer jurisdiction. The preliminary objection was allowed, the Plaint was struck out, and costs were awarded to the 3rd Defendant only, to be borne by the Plaintiff.

Key legal issues

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01

Existence of alternative statutory dispute resolution mechanisms

Holding

Statutory mechanisms exist: appeals on the EIA licence lie to the National Environmental Tribunal under Section 129 EMCA, and challenges to change-of-user and development approvals lie with the County Physical and Land Use Planning Liaison Committee under Section 78 of the Physical and Land Use Planning Act, 2019. Neither was exhausted.

Reasoning

The court examined Section 129 EMCA and Section 78 PLUPA and matched the reliefs sought to the respective statutory fora. Reliefs (c), (d), (g), (h) and (j) fall to the NET; reliefs (e), (f), (i) and (j) fall within the liaison committee's remit. The Plaint disclosed no effort to approach either forum.

p. 10
02

Whether the ELC has jurisdiction over the dispute

Holding

Yes - the court is clothed with original and appellate jurisdiction under Article 162(2)(b), Section 13 ELC Act and Section 3(3) EMCA, but jurisdiction does not mean it must be exercised at first instance.

Reasoning

Section 13(3) ELC Act expressly preserves the court's power to hear redress of violations of environmental rights under Articles 42, 69 and 70. No party disputed jurisdiction. The real question was whether the court should assume jurisdiction where alternative mechanisms exist, which it answered in the negative under the exhaustion and avoidance doctrines.

p. 10
03

Whether the court should assume jurisdiction notwithstanding the exhaustion doctrine

Holding

No. Following Kibos Distillers and Muthinja Kabiru, the court must exercise judicial restraint, defer to statutory bodies, and preserve the right of appeal; courts are fora of last resort.

Reasoning

Assuming original jurisdiction would deprive aggrieved parties of the appellate route and diminish the right of appeal under Article 48. Harmonious constitutional interpretation (per KNCHR reference) reconciles access-to-justice rights with Article 159(2)(c) ADR. Constitutional petitions cannot be used to bypass statutory organs.

p. 12

Legal principles established

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  • Where a statutory dispute resolution mechanism exists, a litigant must exhaust it before invoking the court's jurisdiction; the court should exercise restraint and defer to statutory bodies even where it has concurrent jurisdiction
  • A court with both original and appellate jurisdiction cannot exercise both simultaneously; assuming original jurisdiction where an appellate route exists would deprive aggrieved parties of the right of appeal and restrict access to justice
  • A multifaceted claim cannot confer jurisdiction on a court where the fulcrum of the complaint lies in a statutorily established body

Court orders

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  1. 1.The Preliminary Objection dated September 23, 2021 is allowed
  2. 2.The Plaint dated August 3, 2021 is struck out
  3. 3.Costs awarded to the 3rd Defendant only, to be borne by the Plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 35, 42, 48, 69, 70, 159(2)(c), 162(2)(b), 258
  • Environmental Management and Co-ordination Act, 1999 (2015)Sections 3(3), 3(5), 13, 17(1) (regulations), 42(1)(b), 52, 55, 58(2), 64(1), 125, 129(1), 129(2), 129(3), 130
  • Environment and Land Court Act, No 19 of 2011Section 13(1)-(7)
  • Physical and Land Use Planning Act, 2019Sections 55(a, d, f & g), 78(b)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 46(1)(f)
  • Fair Administrative Actions ActSection 9(2)
  • Urban Areas and Cities Act, No 13 of 2011Nairobi County zoning guidelines

Cases cited (21)

  • Mutanga Tea & Coffee Company Limited v Shikara Limited & Another
    [2012] eKLR
  • Deepak Harakch & Another v Anmol Limited & 4 Others
    [2018] eKLR
  • Samson Chembe Vuko v Nelson Kilumo & 2 Others
    [2016] eKLR
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • Angela Mbugua & 4 Others v K O Holdings Limited & 2 Others
    [2020] eKLR
  • Zoa Limited v Arvind Money & 2 Others
    [2020] eKLR
  • Kibos Distillers Limited & 4 Others v Benson Ambuti & 3 Others
    (2020) eKLR
  • David Merika & Another v Director General Nema & 2 Others
    [2020] eKLR
  • Julias Nyaga Kithome v Janton Investment Limited & Another
    [2021] eKLR
  • Getrude Mukoya Mwenda & Others v Cabinet Secretary, Ministry of Infrastructure Housing & Urban Development
    [2020] eKLR
  • Ken Kasinga v Daniel Kiplagat Kirui & 5 Others
    [2015] eKLR
  • John Kabukuru Kibicho & Another v County Government of Nakuru & Another
    [2016] eKLR
  • Taib Investment Limited v Fahim Salim Said & 5 Others
    [2016] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Esther Gachambi Mwangi v Samuel Mwangi Mbiri
    [2013] eKLR
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No 2 of 2011
  • Re The Matter of Kenya National Commission of Human Rights
    Supreme Court Ref. No 1 of 2012 [2014] eKLR
  • Bethwel Allan Omondi Okal v Telcom (K) Limited (founder) & 9 Others
    [2017] eKLR
  • International Centre for Policy and Conflict & 4 others v The Hon Uhuru Kenyatta and others
    Petition No 552 of 2012
  • Speaker of National Assembly v Njenga Karume
    [2008] 1 KLR 425
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Buku v National Environmental Authority & 3 others (Environment & Land Case E289 of 2021) [2021] KEELC 4752 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4752/eng@2021-10-14

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