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ELCAllowedPetition dated 31st July 2019 (application dated 19th January 2022)· [2022] KEELC 3223 (KLR)

Kimeu & 3285 others v Kenya Pipeline Company Ltd & another (Petition 9 of 2019) [2022] KEELC 3223 (KLR)

Environment and Land Court
15 June 2022
TMT. Murigi
3,413 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 ruled the Thange oil spillage case is so significant it must be heard by at least three judges appointed by the Chief Justice.

What this practically means

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Executive summary

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The petitioners sued over alleged massive oil spillage into the Thange River Basin, alleging violation of their constitutional rights under articles 28, 29, 40, 42, 43(1)(d) and 69, and seeking interlocutory expert examination, declarations, an environmental restoration order, damages and costs. Before the court was the petitioners' notice of motion dated 19th January 2022 seeking certification of the petition as raising a substantial question of law under article 165(4) of the Constitution and referral to the Chief Justice to empanel a bench of not less than three judges. The petitioners argued that the petition is complex and the first of its kind in Kenya, concerning environmental rights under articles 42, 69 and 70 and novel questions of absolute liability for oil spillage under EMCA, the Water Act, the Energy Act, the Petroleum Act and subsidiary legislation, affecting 27 villages along the 42 km Thange river. The 1st respondent opposed, contending the application was an afterthought, that no constitutional interpretation or conflict of laws arises, and that a single judge can grant the compensation sought; the 2nd respondent did not oppose. Reviewing Community Advocacy and Awareness Trust, Sir Chuntilal Mehta, Omikya Omtatah Okoiti, Hermanus Phillipus Steyn and Harrison Kinyanjui, the court held that a substantial question of law is one of general public importance affecting a large cross-section of the public, for which a basis must be laid. Finding the issues novel, complex and unrefuted, the court certified the petition and referred it to the Honourable Chief Justice to consider constituting a bench of not less than three judges, with costs in the cause.

Key legal issues

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01

Whether the Thange oil spillage petition raises a substantial question of law warranting certification under article 165(4)

Holding

Yes - the petition raises substantial questions of law of general public importance affecting the petitioners and communities along the Thange River, warranting referral to the Chief Justice for empanelment of not less than three judges.

Reasoning

The court drew on authorities defining a substantial question of law, including the principles from Hermanus Phillipus Steyn as adapted for article 165(4): the issue must transcend the parties, bear on public interest, show uncertainty in the law, and fall under article 165(3)(b) or (d). The petition involves novel claims on environmental rights under articles 42, 69 and 70 and absolute liability for oil spillage, unrefuted by the 1st respondent, and affects 27 villages dependent on the Thange river. Certification was therefore merited.

p. 8

Legal principles established

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  • A substantial question of law is one of general public importance or one that affects the rights of a large cross section of the public, and a party seeking certification must lay a basis for certification.
  • For certification under article 165(4), the applicant must show the issue transcends the parties' case, bears on public interest, and reflects uncertainty in the law, and must fall under article 165(3)(b) or (d).

Court orders

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  1. 1.This Petition be placed before the Honourable Chief Justice for Her Ladyship to consider constituting an uneven number of judges being not less than three to hear and determine this petition.
  2. 2.Costs in the cause.

Authorities

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Legislation

  • Constitution of Kenyaarticles 28, 29, 40, 42, 43(1)(d), 69, 70, 72, 165(3)(b), 165(4), 191, 259(1)(b) & (c)
  • EMCA Act 1999sections 2, 3, 108-111, 142 & 143
  • EMCA (Water Quality) Regulations 2006rule 40
  • Water Act 2002sections 2 & 96
  • Water Resource Management Rules 2006/2007rule 88
  • Petroleum Act 2019section 97
  • Energy Actsection 98
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013rule 19

Cases cited (9)

  • Wycliff Ambesta Oparanya & others vs Director of Public Prosecutions & another
    [2016] eKLR
  • Amos Kiuno & 2 others vs Cabinet Secretary Ministry of Interior & Co-ordination of National Government & 3 others
    (2014) eKLR
  • Patrick Musimba vs National Land Commission & 4 others
    (2014) eKLR
  • Cord & another vs Republic of Kenya & another
    (2015) eKLR
  • Community Advocacy and Awareness Trust and Others vs Attorney General
    Nairobi Petition No 243 of 2011 (unreported)
  • Sir Chuntilal Mehta and Sons Ltd vs The Century Spinning and Manufacturing Co Ltd
    1962 AIR 1314
  • Omikya Omtatah Okoiti & another vs Ann Waiguru – Cabinet Secretary, Devolution and Planning & 3 others
    (2017) eKLR
  • Hermanus Phillipus Steyn vs Giovanni Gnechi-Ruscone
    (2013) eKLR
  • Harrison Kinyanjui vs Attorney General & another
    (2012) eKLR
Jurisdiction invoked
Article 165(4) of the Constitution of Kenya

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, "Kimeu & 3285 others v Kenya Pipeline Company Ltd & another (Petition 9 of 2019) [2022] KEELC 3223 (KLR)", Case Analysis (2022). Petition dated 31st July 2019 (application dated 19th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3223/eng@2022-06-15

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