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ELCStruck OutPetition dated 22/10/2020 (Thika ELC)· [2022] KEELC 956 (KLR)

James Mungai Munene (Chairman) & another v Joseph Githinji Kamau & 3 others [2022] KEELC 956 (KLR)

Environment and Land Court
1 March 2022
BEB M Eboso
4,117 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out residents' petition against a Ruiru building because they skipped the statutory appeal bodies they were required to approach first.

What this practically means

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Executive summary

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The petitioners, officials of Varsityville Residents Association, sued on their own behalf and on behalf of the Association, challenging a mixed-use commercial complex erected by the 1st respondent on Plot No. Ruiru/Ruiru East Block 7/329 within Varsityville Estate, a controlled low-density residential area. They alleged encroachment on an 18-metre buffer zone, and sought declarations, revocation of the EIA licence, change-of-user approval and development permissions, permanent injunctions, a restoration (demolition) order, damages and costs, contending breaches of Articles 10, 31, 35, 42, 47, 50 and 70 of the Constitution and non-compliance with the EMCA and the Physical and Land Use Planning Act, 2019. The 1st and 2nd respondents filed preliminary objections on locus standi and jurisdiction. The court disposed of the objections first. On locus standi, it held the petitioners, suing in their individual capacity, had standing under Article 70. On jurisdiction, it held that the PLUPA vests primary adjudicatory mandate over development permission disputes in the County Physical and Land Use Planning Liaison Committee, and that the EMCA vests primary jurisdiction over EIA licensing disputes in the National Environment Tribunal, with the Environment and Land Court having only appellate jurisdiction in both. The limbs based on the National Construction Authority Act and the Government Proceedings Act failed. Applying the exhaustion doctrine, the court struck out the petition, granted the petitioners liberty to pursue the primary adjudicatory bodies, made no pronouncement on the merits, and declined to award costs since the approvals had not been shown to have been availed to the petitioners before filing.

Key legal issues

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01

Locus standi of the petitioners

Holding

The objection failed; the petitioners sued in their individual capacity and had standing under Article 70

Reasoning

The respondents argued that a society registered under the Societies Act may only sue through its registered officials, which the court accepted as correct law. However, the petition expressly stated the petitioners were suing on their own behalf and on behalf of the Association, not in the Association's name. Individuals have standing under Article 70 to enforce environmental rights, so the limb failed.

p. 3
02

Jurisdiction over development permission disputes

Holding

The PLUPA vests primary jurisdiction in the County Physical and Land Use Planning Liaison Committee; the ELC has only appellate jurisdiction; this limb of the objection was upheld

Reasoning

Sections 61(3) and 61(4) of the PLUPA provide an appeal route from the County Executive Committee Member's decision to the Liaison Committee, and thence to the Environment and Land Court. Since the petition challenged the development permission granted by the 2nd respondent, the primary forum was the Liaison Committee and the court's jurisdiction was invoked prematurely.

p. 3
03

Jurisdiction over EIA licence disputes

Holding

The EMCA vests primary jurisdiction in the National Environment Tribunal; the court's jurisdiction was invoked prematurely to the extent the petition challenged the EIA licence

Reasoning

Sections 129 and 130 of the EMCA provide appeals from licensing decisions to the NET, and from the NET to the Environment and Land Court. A proper reading shows the NET is the primary adjudicatory body and this court is appellate. The objection was accordingly upheld on this limb.

p. 5
04

National Construction Authority Act objection

Holding

This limb failed because the framework applies to aggrieved contractors, which the petitioners are not

Reasoning

Sections 26(4) and 27 of the National Construction Authority Act create an appeal route for contractors aggrieved by the Board's decisions to refuse registration, delete a name, or suspend a contractor. The petitioners are not aggrieved contractors, so this statutory exhaustion framework did not apply to them.

p. 5
05

Government Proceedings Act objection

Holding

This limb failed; the presence of three injunctory prayers out of fifteen was not a basis for striking out the whole petition

Reasoning

Section 16 of the Government Proceedings Act bars injunctions against the Government in lieu of declarations. The court noted only three of the fifteen prayers sought injunctions and held that their inclusion could not justify striking out the entire petition.

p. 6

Legal principles established

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  • Jurisdiction must be raised and decided at the earliest opportunity; without jurisdiction a court has no power to take any further step
  • Where Parliament establishes primary dispute adjudication bodies, those mechanisms must be exhausted before the jurisdiction of superior courts is invoked
  • The PLUPA vests primary adjudicatory mandate over development permission disputes in the County Physical and Land Use Planning Liaison Committee, with the ELC retaining only appellate jurisdiction
  • The EMCA vests primary adjudicatory mandate over EIA licensing disputes in the National Environment Tribunal, with the ELC as appellate forum
  • An individual has locus standi under Article 70 of the Constitution to initiate proceedings to enforce environmental rights in their own capacity

Court orders

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  1. 1.The preliminary objections anchored on the provisions of the EMCA and the PLUPA were upheld
  2. 2.The petition was struck out on the grounds of failure to exhaust the statutory dispute-resolution mechanisms
  3. 3.The petitioners were at liberty to ventilate their grievances in the relevant primary dispute adjudication bodies in accordance with the relevant procedures
  4. 4.No award of costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 31(c), 35(1)(a),(b), 42, 47(1),(2), 50, 70
  • Environmental Management and Co-ordination ActSections 125, 129, 130
  • Physical and Land Use Planning Act, No. 13 of 2019Sections 61(3), 61(4)
  • National Construction Authority Act, No. 41 of 2011Sections 26(4), 27(3),(4)
  • Government Proceedings ActSection 16
  • Societies Actnull

Cases cited (4)

  • Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd
    (1989) 1 KLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] Civil Application No Nai 92 Of 1992 (Nai 40/92 UR) eKLR
  • Benard Murage v Fine Serve Africa Limited & 3 others
    [2015] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti & 3 others
    [2020] eKLR
Jurisdiction invoked
Article 70 of the Constitution invoked by petitioners; court's jurisdiction under the Environment and Land Court Act read with Sections 129-130 EMCA and Section 61 Physical and Land Use Planning Act, 2019

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, "James Mungai Munene (Chairman) & another v Joseph Githinji Kamau & 3 others [2022] KEELC 956 (KLR)", Case Analysis (2022). Petition dated 22/10/2020 (Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/956/eng@2022-03-01

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