Mwaura & another v Rubis Energy Kenya PLC & another (Environment & Land Case 109 of 2021) [2022] KEELC 3448 (KLR)
The bottom line
#The Environment and Land Court struck out the Mwauras' case against Rubis Energy because they should have first appealed to the National Environmental Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is res judicata because the same issues were determined in ELC PET No 11 of 2020, which was struck out for want of jurisdiction and never appealed or set aside
The court compared the pleadings in the prior petition and found the applicants in both suits were challenging the issuance of NEMA licences, change of user, demolition of the asbestos-roofed structure, restricted access and alleged violation of the right to a clean environment. The only difference was procedural - a normal civil suit instead of a petition. The prior ruling had not been set aside, vacated or appealed, so the matters were similar in all respects.
Jurisdiction and exhaustion of remedies
Aggrieved parties should have appealed to the National Environmental Tribunal under sections 125 and 129 of EMCA before coming to the ELC
Applying the Supreme Court's decision in Kibos Distillers on judicial abstention and the Karume principle, the court held that where a statute prescribes a specific dispute-resolution mechanism, it must be followed. The prior ruling had found the applicants prematurely invoked the court's jurisdiction without exhausting the statutory alternative remedies, and this court was bound by that precedent.
Abuse of court process
Filing this suit while aware the same issues had been determined in PET 11 of 2020 constituted an abuse of process
The court adopted the definition of abuse of process in the Law Society of Kenya judicial review case, including instituting multiplicity of actions on the same subject matter between the same parties. It held it has inherent jurisdiction to protect its processes from abuse, and that the plaintiffs' conduct in refiling identical grievances met that threshold, notwithstanding their contention that the prior petition was not heard on the merits.
Legal principles established
#- Jurisdiction of a court is donated by the Constitution or statute and a court without jurisdiction must down its tools
- Where a clear procedure for redress of a grievance is prescribed by statute, that procedure must be strictly followed
- The doctrine of judicial abstention requires a court to refrain from determining a dispute where other appropriate legislatively mandated institutions exist
Court orders
#- 1.The suit and the application be and are hereby struck out in their entirety
- 2.Costs payable in favour of the respondents
- Jurisdiction invoked
- Article 162(2)(b) and 162(3) of the Constitution; Section 13 of the Environment and Land Court Act, No 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura & another v Rubis Energy Kenya PLC & another (Environment & Land Case 109 of 2021) [2022] KEELC 3448 (KLR)", Case Analysis (2022). ELC Suit (Ruiru/Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3448/eng@2022-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.