Buku v National Environmental Authority & 3 others (Environment & Land Case E289 of 2021) [2021] KEELC 4752 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of alternative statutory dispute resolution mechanisms
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.
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.
Whether the ELC has jurisdiction over the dispute
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.
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.
Whether the court should assume jurisdiction notwithstanding the exhaustion doctrine
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.
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated September 23, 2021 is allowed
- 2.The Plaint dated August 3, 2021 is struck out
- 3.Costs awarded to the 3rd Defendant only, to be borne by the Plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.