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ELCDismissedPetition dated 22nd November 2021 (Garissa ELC)· [2022] KEELC 1918 (KLR)

Salat Aden Mohamed & another v Noor Aden Abdullahi & 4 others [2022] KEELC 1918 (KLR)

Environment and Land Court
28 January 2022
ECE.C Cherono
2,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The two petitioners filed a petition dated 22nd November 2021 seeking a declaration that the respondents violated their right to a safe and healthy environment, cancellation of the Environmental Impact Assessment licence and development permit issued for the construction of a base transmitter tower on the 1st and 2nd Respondents' property, and orders suspending the construction. Together with a notice of motion seeking a permanent injunction and suspension of operations, the petitioners alleged forgery of public participation forms, lack of a change of user approval from the County Government of Garissa, and the absence of a valid licence. The 4th Respondent raised a preliminary objection contending that the court's jurisdiction had not been properly invoked under Sections 125, 126 and 129 of EMCA and that the dispute belonged before the National Environment Tribunal at first instance, citing Kibos Distillers. The 3rd Respondent opposed in reliance on the Giella principles and argued the petition was vexatious. The court framed the question as when a party may invoke the jurisdiction of the National Environment Tribunal vis-à-vis the ELC. Noting that neither the licence nor the EIA had been attached by the respondents, the court applied Kibos Distillers on exhaustion of statutory remedies and the wide investigative mandate of the Public Complaints Committee under Section 32 of EMCA, holding that the petitioners ought first to have lodged a formal complaint there. The preliminary objection was upheld and the petition dismissed as premature with costs to the respondents.

Key legal issues

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Jurisdiction of the ELC vis-à-vis the National Environment Tribunal and the Public Complaints Committee

Holding

The preliminary objection was upheld; the petitioners ought first to have lodged a formal complaint with the Public Complaints Committee before instituting the petition, and the court cannot usurp the jurisdiction of the Complaints Committee and the Tribunal.

Reasoning

The court examined Section 32 of EMCA establishing the Public Complaints Committee's wide investigative mandate over environmental complaints, and Section 129 providing appeals to the National Environment Tribunal. Relying on Kibos Distillers, it held that original jurisdiction does not oust the jurisdiction of competent statutory organs, and that multifaceted or constitutional pleading cannot confer jurisdiction. Since no formal complaint had been lodged, the petition was premature and was dismissed.

p. 4

Legal principles established

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  • Where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed, and a party must exhaust available alternative remedies before invoking the Court's jurisdiction

Court orders

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  1. 1.The preliminary objection dated 10th December 2021 is upheld as merited
  2. 2.The petition filed on 22nd November 2021 is dismissed as premature
  3. 3.Costs of the petition awarded to the respondents

Authorities

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Legislation

  • Environment Management and Coordination Act (EMCA)Sections 13? (Sections 7, 9, 58, 31, 32, 125, 126, 129, 130)
  • Environment and Land Court ActSection 13
  • Physical Planning ActSections 41(3) and 52
  • Constitution of KenyaArticle 70

Cases cited (15)

  • Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others
    [2020] eKLR
  • Kibos Sugar Ltd and Others vs Benson Ambuti Adega and Others
    (2020) eKLR
  • Mohammed Said vs County Council of Nandi
    (2013) eKLR
  • Taib Investments Limited v Fahim Salim Said & 5 Others
    [2016] eKLR
  • West Kenya Sugar Co. Limited vs Busia Sugar Industries Limited & 2 Others
    [2017] eKLR
  • Residents of New Valley Kitengela vs Director General NEMA and Safaricom Limited
    NET Appeal No. 10 of 2019
  • John Kabukuru Kibicho & Another v County Government of Nakuru & 2 Others
    (2016) eKLR
  • Ken Masinga vs Daniel Kiplagat & 5 Others
    Nakuru ELC Constitutional Petition No. 50 of 2013
  • Douglas Onyancha Omboga & 3 Others v Joseph Karanja Wamugi & 4 Others
    [2019] eKLR
  • Owner of Motor Vessel Lillian S vs Caltex Oil (Kenya) Ltd
  • Samuel Kamau Macharia vs Kenya Commercial Bank & 2 Others
    Civil Appl No. 2 of 2011
  • Re Continental Credit Finance Ltd Nairobi
    (Milimani) HCC No. 29 of 1986 [2003] 2 EA 399
  • Josephat Muchiri Muiruri & Another vs Yusuf Abdi Adan
    Civil Appeal No. 715 of 2006
  • Geodfrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Article 70 of the Constitution invoked by petitioners; Section 13 of the Environment and Land Court Act; Sections 125, 126 and 129 of the Environment Management and Coordination Act (EMCA) raised in the preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Salat Aden Mohamed & another v Noor Aden Abdullahi & 4 others [2022] KEELC 1918 (KLR)", Case Analysis (2022). Petition dated 22nd November 2021 (Garissa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1918/eng@2022-01-28

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