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ELCStruck OutThika ELC Petition No 17 of 2018 (transferred to this court)· [2022] KEELC 1896 (KLR)

Daniel Kariuki Mbugua & 8 others v Joseph Njenga Wachaiyu & 4 others [2022] KEELC 1896 (KLR)

Environment and Land Court
19 January 2022
BEB M Eboso
3,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a challenge to a Safaricom mast because the neighbours skipped mandatory tribunals and went straight to court.

What this practically means

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Executive summary

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Nine petitioners, beneficial owners of land neighbouring L.R No Dagoretti/Ruthimitu/833, petitioned against the erection of a telecommunications mast by the 2nd respondent, alleging violation of their rights to a safe, clean and healthy environment and threatened violation of property rights. They sought declarations, suspension of mast operations, an independent public survey, cancellation of the EIA licence, telecommunications licence and development permission, dismantling of the mast, and general damages. The 2nd respondent filed a notice of preliminary objection contending the petition was res judicata and that the court lacked jurisdiction under Section 129 of the EMCA, grievances lying first with the National Environment Tribunal. The 4th respondent similarly objected that the petitioners should have pursued mechanisms under the Physical and Land Use Planning Act, 2019. The court held that the petition was not res judicata because the earlier Kikuyu suit was struck out for want of jurisdiction without the issues being heard and finally decided. However, on exhaustion of statutory remedies, the court held that the National Environment Tribunal is the primary adjudicatory body for EIA licensing disputes under Section 129 EMCA, and the County Physical and Land Use Planning Liaison Committee the primary body for planning disputes under Section 61(3) PLUPA, with the ELC vested only with appellate jurisdiction. As both bodies were functioning, invoking the court's original jurisdiction was premature. The petition was struck out, with each party bearing their own costs, the court noting that the approvals exhibited by the 2nd respondent had not been availed to the petitioners before filing.

Key legal issues

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01

Whether the petition is res judicata

Holding

The petition is not res judicata because the prior Kikuyu suit was struck out for lack of jurisdiction without hearing and determining the issues

Reasoning

For res judicata to apply, the issues in the former suit must have been raised, heard and finally decided. The Kikuyu Magistrate Court struck out the suit for lack of jurisdiction without determining the issues, so the elements of res judicata, which are conjunctive, were not satisfied.

p. 3
02

Whether this court is the proper primary adjudicatory body

Holding

The court is not the primary adjudicatory body; the NET and the County Physical and Land Use Planning Liaison Committee are the primary bodies, with the ELC vested with appellate jurisdiction

Reasoning

Disputes on EIA licensing must first go to the NET under Section 129 EMCA, and physical planning disputes to the County Physical and Land Use Planning Liaison Committee under Section 61(3) PLUPA. Both bodies were functioning, so invoking the court's original jurisdiction was premature and the exhaustion doctrine applies.

p. 4

Legal principles established

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  • Where Parliament has established primary dispute adjudication bodies and mechanisms, those mechanisms must be exhausted before the jurisdiction of superior courts is invoked
  • Original jurisdiction of the ELC does not operate to oust the jurisdiction of other competent organs mandated to hear a dispute

Court orders

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  1. 1.The petition herein is struck out on the ground that the jurisdiction of this court has been invoked prematurely
  2. 2.Parties shall bear their respective costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 42, 43(1), 69(1)(e), (f) & (g), 162(2)(b)
  • Environmental Management and Co-ordination ActSections 125, 129, 130
  • Physical and Land Use Planning Act, 2019Sections 61(3), 61(4)
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSection 7

Cases cited (7)

  • Pop-In (Kenya) Ltd & 3 Others v Habib Bank Ali Zurich
    (1990) KLR 609; Civil Appeal No 80 of 1988
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Ken Kasing'a v Daniel Kiplagat Kirui & 5 others
    [2015] eKLR
  • 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
  • Benson Ambuti Adega v Kibos Distillers Ltd & 5 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Kariuki Mbugua & 8 others v Joseph Njenga Wachaiyu & 4 others [2022] KEELC 1896 (KLR)", Case Analysis (2022). Thika ELC Petition No 17 of 2018 (transferred to this court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1896/eng@2022-01-19

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