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ELCDismissedNot stated in the extract (Petition filed at Kisii; Notice of Motion dated May 4, 2020)· [2022] KEELC 2685 (KLR)

Maikara & 5 others v Chico Company Limited & 2 others (Environment & Land Petition 8 of 2021) [2022] KEELC 2685 (KLR)

Environment and Land Court
6 July 2022
JOJ. M. Onyango
2,784 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kisii's Environment and Land Court dismissed residents' bid to stop a ballast plant because they skipped the required NEMA and tribunal complaint process first.

What this practically means

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Executive summary

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The Petitioners' Notice of Motion dated May 4, 2020 sought a permanent injunction restraining the 1st Respondent from operating a ballast processing plant at Bonyawangwa, South Mugirango, an order of environmental restoration including demolition of structures, a declaration that the 2nd and 3rd Respondents' failure to stop the operations was unconstitutional, and compensatory damages for alleged violations of Articles 43, 46 and 47. The 1st Petitioner deponed that dust emissions from the plant had destroyed poultry, reduced milk and maize yields, harmed her parents' health and increased insecurity. The 1st Respondent opposed, raising lack of jurisdiction, absence of constitutional issues, and that the orders were final relief sought at an interlocutory stage, and deponed that it was licensed and complied with EMCA. The 2nd and 3rd Respondents filed no response. The court framed three issues: jurisdiction, the constitutional petition threshold, and whether the orders should issue. On jurisdiction, applying the exhaustion doctrine per Speaker of National Assembly v Karume and Ramogi, it held that appeals from NEMA lie first to the National Environment Tribunal under section 129(2) of EMCA, so the suit was filed in the wrong forum. On the threshold, relying on Japheth Ododa Origa and Kiambu County Tenants Welfare Association, it held the claim was essentially negligence, trespass and nuisance, pleadable in a normal suit, and the constitutional articles were not pleaded with precision. The final orders sought could also not issue interlocutorily. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the court has jurisdiction

Holding

The court lacks jurisdiction because the Petitioners failed to exhaust administrative remedies under EMCA before the National Environment Tribunal.

Reasoning

Section 129(2) of EMCA channels appeals from NEMA decisions to the National Environment Tribunal as the point of first reference. Applying the doctrine of exhaustion as articulated in Speaker of National Assembly v Karume and Ramogi, the court held that a litigant must pursue the statutory administrative remedy before resorting to the court. The petition was therefore filed in the wrong forum.

p. 6
02

Whether the suit meets the threshold of a constitutional petition

Holding

It does not; the claim is essentially one of negligence, trespass and nuisance and the constitutional articles infringed are not pleaded with precision.

Reasoning

Relying on Japheth Ododa Origa and Kiambu County Tenants Welfare Association, the court held that a constitutional question requires constitutional interpretation and that courts will not entertain constitutional process where alternative remedies exist. The pleaded grievance concerned breach of EMCA and common law torts, and the Petitioners did not plead the infringed constitutional articles with precision.

p. 7
03

Whether the interlocutory orders sought should be granted

Holding

No; the orders sought (permanent injunction, restoration, demolition, damages) are final in nature and cannot be granted at an interlocutory stage.

Reasoning

The Notice of Motion sought substantive final relief - a permanent injunction, environmental restoration, demolition and compensatory damages - without a full hearing. Granting such orders would effectively determine the suit at the interlocutory stage, leaving nothing for trial. The application therefore failed on this additional ground.

p. 7

Legal principles established

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  • Where a clear statutory procedure for redress exists, it must be strictly followed (exhaustion of remedies)
  • Decisions of NEMA under EMCA are appealable to the National Environment Tribunal as the point of first reference
  • A constitutional petition must plead with precision the provisions infringed and the manner of infringement; ordinary tort claims need not be brought by petition

Court orders

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  1. 1.The Notice of Motion dated May 4, 2020 is dismissed.
  2. 2.Costs of the application shall be in the cause.

Authorities

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Legislation

  • Environmental Management and Co-ordination Act, 1999section 9
  • Environmental Management and Co-ordination Act, 1999section 58
  • Environmental Management and Co-ordination Act, 1999section 68(1)
  • Environmental Management and Co-ordination Act, 1999section 108
  • Environmental Management and Co-ordination Act, 1999section 117
  • Environmental Management and Co-ordination Act, 1999section 125
  • Environmental Management and Co-ordination Act, 1999section 129(2) and 129(3)
  • Environmental Management and Co-ordination Act, 1999section 130
  • Environmental Management and Co-ordination Act, 1999Part VI
  • Constitution of Kenya, 2010Articles 3, 10, 43, 46, 47, 159(1) and (2)

Cases cited (8)

  • William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others, Muslims for Human Rights & 2 Others
    (2020) eKLR
  • Philip Muiruri Ndirangu v Getamu/Gatemu Housing Co. Ltd
    (2019) eKLR
  • Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 Others
    (2018) eKLR
  • Kiambu County Tenants Welfare Association v Attorney General & Another
    (2017) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR (2008) 1 KLR 428
  • Martin Nyongesa Barasa v Traffic Commandant & 2 Others
    (2021) eKLR
  • Meme v Republic
    (2004) eKLR
  • John Harun Mwau v Peter Gastrol & 3 Others
Jurisdiction invoked
Constitutional petition invoking Articles 3, 10, 43, 46 and 47 of the Constitution; court held jurisdiction ousted by section 129(2) of EMCA pending exhaustion before the National Environment Tribunal

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, "Maikara & 5 others v Chico Company Limited & 2 others (Environment & Land Petition 8 of 2021) [2022] KEELC 2685 (KLR)", Case Analysis (2022). Not stated in the extract (Petition filed at Kisii; Notice of Motion dated May 4, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2685/eng@2022-07-06

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