Mutugi v Manji Kara t/a Hari Krushna Impex & 3 others; Patel & 2 others (Interested Parties) (Environment and Land Constitutional Petition E03 of 2021) [2022] KEELC 3880 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an environmental petition because the complainant should have first taken the dispute to the National Environment Tribunal, not court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over disputes on the grant of an EIA licence
Section 129(1) of EMCA confers first-instance jurisdiction on the National Environment Tribunal; the ELC may hear only appeals under section 130
The petitioner's complaint was of a flawed EIA and licences issued in contravention of environmental statutes. Section 129(1)(a) of EMCA expressly directs any person aggrieved by the grant of a licence to the Tribunal within sixty days. The court, bound by the Supreme Court's dictum in Samuel Kamau Macharia, held that it could not arrogate jurisdiction reserved for the Tribunal, and that the petitioner's remedy lay there first and on appeal under section 130.
Governing planning legislation and forum for planning disputes
The Physical Planning Act cap 295 was repealed; the applicable law is the Physical and Land Use Planning Act No 13 of 2019, whose Liaison Committee mechanisms the petitioner failed to invoke
The change-of-user application and approvals predated or straddled the commencement of the 2019 Act, which under section 92 is transitional. The court applied sections 76 and 93, holding that the petitioner's complaints were capable of redress before the County Physical and Land Use Planning Liaison Committee or the Tribunal, and that no such complaint or appeal had been lodged. The preliminary objections were therefore well taken.
Legal principles established
#- Where a statute establishes a specialized tribunal for disputes arising from issuance of EIA licences, that tribunal is the first port of entry and the High Court/ELC has only appellate jurisdiction
- A court cannot expand its jurisdiction beyond that conferred by the Constitution or written law
Court orders
#- 1.The preliminary objections dated March 23, 2021, April 28, 2021 and July 2, 2021 are upheld
- 2.The petition dated October 14, 2020 and the notice of motion of even date are struck out
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Articles 162(2)(b) and 165 of the Constitution; Environment and Land Court Act; Environmental Management and Co-ordination Act, cap 387
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutugi v Manji Kara t/a Hari Krushna Impex & 3 others; Patel & 2 others (Interested Parties) (Environment and Land Constitutional Petition E03 of 2021) [2022] KEELC 3880 (KLR)", Case Analysis (2022). ELC Petition dated October 14, 2020 ( Kerugoya ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3880/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.