Michael Kiswili (on his own behalf of 65 others) v Base Titanium Limited & 3 others [2022] KEELC 465 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed residents can sue mining companies directly over environmental harm, without first going through tribunals.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over constitutional environmental claims despite statutory remedies under the Mining Act and EMCA
The court has jurisdiction; where environmental and developmental issues span multiple tribunals and cannot be severed, only the ELC can deal with all of them, and section 13(3) preserves petitions for redress of environmental rights
Guided by Owners of Motor Vessel 'Lillian's v Caltex Oil, the court addressed jurisdiction first. It found the dominant prayer was enforcement of Article 42/70 rights, which section 13(3) of the ELC Act reserves to the court. Following Taib Investment and Peter Nzeki, mining disputes and environmental-rights claims fall within section 13(2)(a). The existence of alternative remedies under sections 129 EMCA and 155 of the Mining Act would merely render the court's jurisdiction appellate where issues can be separated; here they cannot.
Whether section 108 of EMCA bars the court from issuing an environmental restoration order
No – the discretionary 'may' empowers NEMA but does not oust the court's power to issue restoration orders
The court read section 108 as conferring a discretion on NEMA to issue restoration orders where necessary. It noted precedent of courts issuing such orders and held the provision does not remove the ELC's own power to grant restoration orders under section 13(7) of the ELC Act.
Legal principles established
#- The ELC has exclusive original jurisdiction to redress denial, violation or infringement of the right to a clean and healthy environment under Articles 42, 69 and 70, which cannot be ousted by tribunal processes
- The word 'may' in section 108 of EMCA confers a discretion on NEMA and does not oust the ELC's jurisdiction to issue environmental restoration orders
- The ELC's jurisdiction under section 13(2)(a) of the ELC Act expressly extends to disputes relating to mining and minerals
Court orders
#- 1.The Notice of Motion application dated 28/4/2021 is hereby dismissed
- 2.Costs shall be borne by the 1st Respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with sections 12 and 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kiswili (on his own behalf of 65 others) v Base Titanium Limited & 3 others [2022] KEELC 465 (KLR)", Case Analysis (2022). ELC Petition (Mombasa) – Notice of Motion dated 28/4/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/465/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.