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ELCStruck OutConstitutional Petition (as per judgment; petition dated 9th September 2018)· [2021] KEELC 4763 (KLR)

Job Otieno & 2 others v Sukari Industries Ltd & 2 others [2021] KEELC 4763 (KLR)

Environment and Land Court of Kenya
21 September 2021
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The court struck out an anti-pollution petition because the residents first had to complain to Kenya's environmental agencies, not go straight to court.

What this practically means

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Executive summary

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The three petitioners, residents of South Kanyikela Ward in Ndhiwa Constituency along River Kuja, petitioned in September 2018 against Sukari Industries Limited and regulatory respondents, alleging that the 1st respondent breached an Environmental Impact Assessment report by discharging raw waste into the river, polluting their water source. They sought injunctions, mandatory orders for clean waste disposal and water, removal of effluent, compensation for local residents, and an audit of prior complaints. The 1st respondent filed a preliminary objection and a replying affidavit opposing the petition; the preliminary objection was overruled by JR Karanja J in March 2019 as 'hybrid' and the petition transferred to the Environment and Land Court. The court framed two issues: its jurisdiction over the petition and, if so, whether the petition was merited. Applying the Pullman abstention doctrine from the Supreme Court's decision in Benson Ambuti Adega v Kibos Distillers, and the principle in Speaker of National Assembly v Karume that a clear statutory procedure for redress must first be followed, Ongondo J held that the petitioners should first have sought relief from NEMA, the National Environmental Complaints Committee and the National Environmental Tribunal under EMCA before filing a constitutional petition. Nothing showed they had done so. The court therefore declined jurisdiction, reserved all issues raised in the petition pending the outcome of the statutory processes, struck out the petition, and ordered each party to bear its own costs. The merits of the alleged rights violations were not determined.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the petition

Holding

The court declined jurisdiction because the petitioners bypassed the statutory dispute-resolution mechanisms under EMCA

Reasoning

The court relied on the Supreme Court's Pullman abstention doctrine in Benson Ambuti Adega v Kibos Distillers, holding that where legislation establishes institutions (NEMA, NECC, NET) with a clear mandate and procedure to hear environmental complaints, petitioners must first present their grievances there before approaching a constitutional court. The petitioners showed no attempt to seek relief in those institutions.

p. 4
02

Whether the petition was merited

Holding

Not determined on the merits; the court reserved all issues pending the petitioners' recourse to the statutory bodies

Reasoning

Having found that the petitioners should first approach NEMA under sections 7 and 108 of EMCA, NECC under sections 31 and 32, and NET under sections 125, 126(2), 127(1) and 129, the court did not assess the alleged rights violations on the merits. It reserved all issues raised in the petition pending the outcome of the statutory processes, noting appeals from NET lie to this court.

p. 4

Legal principles established

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  • Where there is a clear procedure of redress for a particular grievance, that procedure should be adhered to before resorting to a constitutional petition
  • A court cannot arrogate itself jurisdiction in cases where there are proper institutions mandated to hear and determine the issues (Pullman abstention doctrine)

Court orders

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  1. 1.Jurisdiction declined over the petition and all issues raised reserved pending the outcome of decisions of NEMA, NECC and NET
  2. 2.The petition is struck out
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Preamble; Articles 6(3), 22, 48, 50, 258
  • Fair Administrative Action ActNo. 4 of 2015 (generally)
  • Environmental Management and Co-ordination Act, 1999 (EMCA)Sections 7, 29, 31, 32, 108, 125, 126(2), 127(1), 129, 130
  • Environment and Land Court ActSection 13(3)
  • Competition Actnot specified (as cited in Governor of Kericho County case)

Cases cited (17)

  • Mumo Matemu =vs= Trusted Society of Human Rights Alliance and 5 others
    (2013)
  • Kibwezi Water Resources Users Association and 4 others =vs= Attorney General and 5 others
    (2019) eKLR
  • Gabriel Mutava and 2 others =vs= Managing Director Kenya Ports Authority and another
    (2016) eKLR
  • Gitobu Imanyara and 2 others =vs= Attorney General
    (2016) eKLR
  • Samwel Kamau Macharia and another =vs= Kenya Commercial Bank Ltd and others
    (2012) eKLR
  • Desai =vs= Warsame
    (1967) EA 351
  • Republic =vs= Karisa Chengo and 2 others
    (2017) eKLR
  • Benjamin Leonard Macfoy v United Africa Co. Ltd
    (1962) AC 152
  • Owners of Motor Vessel Lilian “S” =vs= Caltex Oil Kenya Ltd
    (1989) KLR 1
  • Leisure Ltd =vs= Commissioner of Lands and another
    (2016) eKLR
  • James Francis Angalia =vs= Masinde Muliro University and others
    (2012) eKLR
  • Speaker of National Assembly =vs= Karume
    (1992) 1 KLR 425
  • Republic =vs= Jubilee Party and another exparte Wanjiku Mulwa and another
    (2017) eKLR
  • Governor of Kericho County =vs= Kenya Tea Development Agency and 30 others
    (2016) eKLR
  • Daniel N. Mugendi =vs= Kenyatta University and 3 others
    (2013) eKLR
  • Benson Ambuti Adega and 2 others =vs= Kibos Distillers Limited and 5 others
    (2020) eKLR
  • Halsbury's Laws of England 4th Edition volume 9
    page 350
Jurisdiction invoked
Constitution of Kenya, 2010 and Environment and Land Court Act, 2015, section 13(3)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Job Otieno & 2 others v Sukari Industries Ltd & 2 others [2021] KEELC 4763 (KLR)", Case Analysis (2021). Constitutional Petition (as per judgment; petition dated 9th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4763/eng@2021-09-21

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