Onono & 2 others (All Suing on Behalf of the KMA South C Residents Association) v The Director General, National Environment Management Authority & 4 others (Environment and Land Case Civil Suit E217 of 2022) [2022] KEELC 3696 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out residents' suit over a South C development because they had to first use statutory appeal channels like the environment tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over the claim concerning threats to the right to a clean and healthy environment
The court is vested with both original and appellate jurisdiction over environmental and land disputes and over constitutional claims under Articles 42, 69 and 70, and this jurisdiction was not challenged by any party
The court examined Articles 42, 69, 70 and 162(2)(b) of the Constitution, Section 13 of the ELC Act and Section 3(3) of EMCA, and held that the ELC is conferred with original and appellate jurisdiction over environmental planning, protection and land use disputes, including applications for redress of threats to the right to a clean and healthy environment. No party disputed this jurisdiction.
Whether the court should exercise its original jurisdiction notwithstanding the existence of statutory dispute resolution mechanisms
The court should exercise judicial restraint and defer to statutory bodies; litigants must first exhaust the statutory dispute resolution mechanisms (the National Environment Tribunal under s.129(1) EMCA and appeal processes under ss.61(3), 61(4) and 78(b) of the Physical Planning and Land Use Act, 2019) before invoking the court's original jurisdiction
Adopting the Kibos Distillers dictum, the court reasoned that a court with both original and appellate jurisdiction cannot usurp the original jurisdiction of statutory organs. Assuming original jurisdiction where the court is also the appellate forum would deprive aggrieved parties of the right of appeal and diminish access to justice under Article 48. Harmonious interpretation of the Constitution (Articles 159, 22, 48, 258) supports the exhaustion doctrine.
Whether constitutional rights claims bypass the exhaustion doctrine
A party alleging violation of constitutional rights must still first exhaust statutory dispute resolution processes; exhaustion is not a fetter on access to justice but is itself constitutionally anchored in Article 159
The court relied on the Court of Appeal's decision in Bethwel Allan Omondi Okal v Telkom (K) Limited and the Supreme Court's guidance on holistic constitutional interpretation in the KNCHR reference, holding that constitutional access-to-justice provisions must be read harmoniously with the exhaustion doctrine and alternative dispute resolution mechanisms anchored in Article 159.
Legal principles established
#- Where a dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the courts is invoked; courts are fora of last resort
- A court with original jurisdiction in some matters and appellate jurisdiction in others cannot, by virtue of its appellate jurisdiction, usurp the original jurisdiction of other competent statutory organs
- Jurisdiction flows from the Constitution or legislation and a court cannot arrogate to itself jurisdiction beyond that conferred by law
- The Environment and Land Court has both original and appellate jurisdiction over environmental and land disputes, including claims under Articles 42, 69 and 70 of the Constitution
Court orders
#- 1.The Preliminary Objections dated July 14, 2022 (2nd Defendant) and July 15, 2022 (3rd, 4th and 5th Defendants) are allowed
- 2.The Plaint dated the 24th day of June 2022 is struck out
- 3.Each party shall bear their own costs
- Jurisdiction invoked
- Articles 42, 69, 70 and 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, 2011; Section 3(3) and (5) of the Environmental Management and Coordination Act, 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onono & 2 others (All Suing on Behalf of the KMA South C Residents Association) v The Director General, National Environment Management Authority & 4 others (Environment and Land Case Civil Suit E217 of 2022) [2022] KEELC 3696 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated June 24, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3696/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.