Calvin Orina Obwogo v Nehemiah Angwenyi Ongeri & 3 others [2022] KEELC 968 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over challenges to an EIA licence and building approvals where statutory appeal mechanisms exist
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
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.
Whether the Applicant met the Giella v Cassman Brown threshold for an injunction
Not considered; the jurisdictional finding disposed of the matter
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.
Whether the 4th Defendant was wrongfully sued
Not determined
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.
Legal principles established
#- 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
#- 1.The application dated 19th October 2021 is dismissed
- 2.The suit is struck out for lack of jurisdiction
- 3.The costs of the application shall be borne by the Plaintiff/Applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.