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ELCOtherNot stated in the excerpt (petition dated/before Homa Bay, with notice of motion dated March 21, 2022 and preliminary objection dated March 1, 2022)· [2022] KEELC 3367 (KLR)

Nyauke v The Homa-Bay Sub-County Administrator. & 5 others (Environment & Land Petition E001 of 2022) [2022] KEELC 3367 (KLR)

Environment and Land Court (Homa Bay)
31 May 2022
GOG.M.A Ong'ondo
789 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that any challenge to its jurisdiction must be resolved first, pausing all other applications in the case.

What this practically means

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Executive summary

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This is a directions ruling by the Environment and Land Court at Homa Bay in an ongoing petition. Before the court was the petitioner's notice of motion dated March 21, 2022 (filed March 25, 2022), but the 6th respondent raised a notice of preliminary objection dated March 1, 2022 contending that the court lacks jurisdiction because the petitioner had not first pursued dispute-resolution avenues under the Homa Bay County Alcoholic Drinks Control Act, 2015 and the Environmental Management and Co-ordination Act, 2012. Counsel for the 6th respondent urged that the objection be heard first as it goes to the validity of the petition and all subsequent applications. The petitioner opposed, arguing the cited statutes impose no mandatory precondition and that he seeks protection of fundamental rights rather than a challenge to the respondents' actions. The 5th respondent filed grounds of opposition. Guided by the Court of Appeal's pronouncements in Kakuta Maimai Hamisi v Peris Pesi Tobiko and the Motor Vessel Lillian 'S' case on the fundamental and threshold nature of jurisdiction, the court held it could not determine the application before dispensing with the preliminary objection. It directed that the objection take priority, be canvassed by written submissions, with service timelines of seven days, and fixed the matter for July 25, 2022 for compliance and further directions. This is an interlocutory ruling, not a final determination of the petition.

Key legal issues

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01

Priority of a jurisdictional preliminary objection over a pending application

Holding

The court directed that the preliminary objection be heard and determined first, by written submissions, before the notice of motion is considered

Reasoning

Relying on the Court of Appeal's pronouncements in Kakuta Maimai Hamisi v Peris Pesi Tobiko and the Motor Vessel Lillian 'S' case, the court reasoned that jurisdiction is a threshold, fundamental and determinative question best taken at inception. A court without jurisdiction has no power to take any further step, so entertaining the application before resolving the objection would risk proceedings in vain. The court therefore deferred the application and fixed the objection for hearing and directions.

p. 2

Legal principles established

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  • A preliminary objection on jurisdiction must be determined before the court proceeds with other applications in the matter

Court orders

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  1. 1.The preliminary objection dated March 1, 2022 takes priority over any other matter in the petition and shall be heard by way of written submissions
  2. 2.The petitioner's submissions dated May 4, 2022 and the 6th respondent's submissions dated May 24, 2022 be served on the other parties within seven (7) days from that date
  3. 3.The other respondents to file and serve submissions, if any, within seven (7) days from the date of service of the petitioner's and 6th respondent's submissions
  4. 4.The preliminary objection fixed for July 25, 2022 to confirm compliance and for further directions
  5. 5.It is so ordered

Authorities

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Legislation

  • Homa Bay County Alcoholic Drinks Control ActNot specified
  • Environmental Management and Co-ordination ActNot specified

Cases cited (2)

  • Kakuta Maimai Hamisi-vs-Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • The Owners of the Motor Vessel Lillian 'S'-vs-Caltex Kenya Ltd
    [1989] KLR 1
Jurisdiction invoked
Not expressly invoked; the ruling turns on whether the court has jurisdiction over the petition given the Homa Bay County Alcoholic Drinks Control Act, 2015 and the Environmental Management and Co-ordination Act, 2012 (1999)

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, "Nyauke v The Homa-Bay Sub-County Administrator. & 5 others (Environment & Land Petition E001 of 2022) [2022] KEELC 3367 (KLR)", Case Analysis (2022). Not stated in the excerpt (petition dated/before Homa Bay, with notice of motion dated March 21, 2022 and preliminary objection dated March 1, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3367/eng@2022-05-31

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