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ELCStruck OutELC Case, Kisii (plaint dated 19th October 2021)· [2022] KEELC 968 (KLR)

Calvin Orina Obwogo v Nehemiah Angwenyi Ongeri & 3 others [2022] KEELC 968 (KLR)

Environment and Land Court
9 March 2022
2,903 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a neighbour's suit to stop hospital construction because he skipped mandatory appeal channels for environmental and planning decisions.

What this practically means

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Executive summary

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The Plaintiff, owner of parcel CENTRAL KITUTU/MWABUNDUSI/2088 adjacent to the suit property, sued to stop construction of a Kshs. 40 million hospital on CENTRAL KITUTU/MWABUNDUSI/2690 and moved the court by Notice of Motion dated 19th October 2021 seeking a temporary injunction or maintenance of status quo. He alleged the construction lacked public participation, commenced before approval by the 3rd Defendant, was proceeding at night, and threatened his house. The 1st and 2nd Defendants replied that they obtained all requisite approvals, an EIA licence from the 3rd Respondent following public participation, a second EIA certificate for two additional floors, and a structural engineer's certification; they also challenged the Plaintiff's locus standi and asserted he had not exhausted statutory remedies. The 4th Respondent filed grounds of opposition claiming it was wrongfully joined, approvals being a County Government function. The court framed three issues: jurisdiction, the injunction threshold, and wrongful joinder of the 4th Defendant. Relying on Owners of the Motor Vessel 'Lillian S' and the authorities cited by the 1st and 2nd Respondents, the court held that the challenge to the EIA licence lay before the National Environment Tribunal under section 129 EMCA, and complaints over approvals and change of user lay before the County Physical and Land Use Planning Liaison Committee under section 72(3) PLUPA, the court exercising only appellate jurisdiction under section 72(4). The remaining issues were not considered. The application was dismissed and the suit struck out for lack of jurisdiction, with costs to the Plaintiff/Applicant.

Key legal issues

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01

Whether the ELC has jurisdiction over challenges to an EIA licence and building approvals where statutory appeal mechanisms exist

Holding

The court has no jurisdiction; the Applicant should first have gone to the National Environment Tribunal under section 129 EMCA and the County Liaison Committee under section 72(3) PLUPA

Reasoning

The main complaint concerned the process leading to issuance of the EIA licence by the 3rd Respondent and approval of construction by the Physical Planning Regulator. EMCA establishes the National Environment Tribunal (sections 125, 126, 129) to hear appeals from such decisions, while section 72(3) and (4) PLUPA vests original jurisdiction over enforcement and approval disputes in the County Liaison Committee, with the court hearing only appeals on matters of law. Following Speaker v Karume, the prescribed procedure must be strictly followed, so the court downed its tools.

p. 4
02

Whether the Applicant met the Giella v Cassman Brown threshold for an injunction

Holding

Not considered; the jurisdictional finding disposed of the matter

Reasoning

Having found that the court lacked jurisdiction, the judge declined to address the injunction threshold or the wrongful joinder of the 4th Defendant, holding that neither issue required determination once jurisdiction failed. The injunction conditions in Giella v Cassman Brown were argued by the parties but never adjudicated upon.

p. 4
03

Whether the 4th Defendant was wrongfully sued

Holding

Not determined

Reasoning

The 4th Respondent filed grounds of opposition contending it was wrongfully joined and that approval of construction projects is undertaken by the County Government, it only registering works and ensuring quality assurance. Because the suit was struck out for want of jurisdiction, this issue was not decided.

p. 4

Legal principles established

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  • Where a statute prescribes a specific procedure for redress of a grievance, that procedure must be strictly followed before approaching the court
  • Section 72(3) and (4) of PLUPA vests original jurisdiction over disputes relating to approval of structures and change of user in the County Physical and Land Use Planning Liaison Committee, with the ELC exercising only appellate jurisdiction on matters of law
  • A court without jurisdiction must cease proceedings immediately

Court orders

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  1. 1.The application dated 19th October 2021 is dismissed
  2. 2.The suit is struck out for lack of jurisdiction
  3. 3.The costs of the application shall be borne by the Plaintiff/Applicant

Authorities

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Legislation

  • Environmental Management and Co-ordination Act (EMCA)sections 125, 126, 129, 130
  • Physical and Land Use Planning Act, 2019 (PLUPA)Section 72(3) and (4)
  • Physical Planning Actsection 38
  • Constitution of KenyaArticle 165(3)

Cases cited (6)

  • Giella versus Cassman Brown & Company Ltd
    (1973) E.A 358
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Michael Moragia Nyachae & another v Buddies Kisii Limited & 2 others
    [2016] eKLR
  • Joseph Ojwang' Oundo vs National Environment Management Authority and 8 others
    [2015] eKLR
  • Jeremiah Nyandusi Abuga & 17 others vs City Council of Nairobi
    ELC Case No. 145 of 2012
  • Speaker of the National Assembly vs The Hon. James Njenga Karume
    (2008) 1 KLR 425
Jurisdiction invoked
Jurisdiction challenged under the Environmental Management and Co-ordination Act (EMCA), sections 125, 126, 129 and 130, and Section 72(3) and (4) of the Physical and Land Use Planning Act, 2019 (PLUPA)

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, "Calvin Orina Obwogo v Nehemiah Angwenyi Ongeri & 3 others [2022] KEELC 968 (KLR)", Case Analysis (2022). ELC Case, Kisii (plaint dated 19th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/968/eng@2022-03-09

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