Borbor & 2 others v National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR)
The bottom line
#The Environment and Land Court struck out a challenge to NEMA's Kiamaiko eviction notice because the applicants skipped the required appeal to the National Environment Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice by reason of a similar pending Petition before a National Assembly Committee
No - the National Assembly is not a court, so proceedings before it do not trigger Section 6 of the Civil Procedure Act
The court examined Section 6 of the Civil Procedure Act, which bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit pending in the same or any other court in Kenya with jurisdiction to grant the relief claimed. Since the pending Petition was before the National Assembly Department Committee on Environment and Natural Resources, which is not a court, the sub judice doctrine was inapplicable.
Whether the exhaustion doctrine barred the judicial review application given the appeal mechanism under Section 129 of EMCA
Yes - the Applicants, being aggrieved by the Respondent's decision (even a verbal notice), were obliged to appeal to the National Environment Tribunal under Section 129(2) of EMCA, and no exceptional circumstances excused their failure to do so
Although the verbal televised notice was unconventional, it was admitted to constitute a decision of the Respondent. Under Section 129(2) of EMCA, decisions of the Authority, its Director-General or committees may be appealed to the Tribunal. Alternative remedies are not a bar only in exceptional cases under Section 9 of the Fair Administrative Action Act, and the Applicants demonstrated none: no impracticality of the mechanism and no purely legal issue requiring the court. The court should not review administrative action until internal mechanisms are exhausted.
Whether the failure to serve the Environmental Restoration Order rendered Section 129 of EMCA inoperative
The court accepted that at the time of filing, no restoration order had been served, making Sections 110(1) and 129(1)(e) inoperative as to that order, but the Applicants still challenged a discrete decision (the verbal notice) which attracted the Section 129(2) appeal route
Section 108(1) of EMCA mandates service of an Environmental Restoration Order before requiring restoration. The Respondent admitted the order was still being drafted when the application was filed, so Sections 110(1) and 129(1)(e) were inoperative. However, the court reasoned that the verbal notices, though verbal, constituted a decision of the Respondent against which the Applicants were aggrieved, obliging them to appeal under Section 129(2) rather than coming straight to the High Court.
Legal principles established
#- Where there is a clear statutory dispute resolution mechanism, it must be exhausted before invoking judicial review jurisdiction, and in the absence of exceptional circumstances the court will not entertain the judicial review application
- The sub judice doctrine under Section 6 of the Civil Procedure Act applies only to matters pending in court, not before the National Assembly
- Jurisdiction is a threshold question that must be decided at the earliest opportunity; a court without jurisdiction acts in vain
Court orders
#- 1.The Applicants' application for leave to commence judicial review proceedings against the Respondent is declined
- 2.The suit is struck out
- 3.The Applicants pay the costs of the Respondent
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; respondent's objection based on Section 6 of the Civil Procedure Act and Section 129 of EMCA (exhaustion), read with Section 9(2) and (4) of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Borbor & 2 others v National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3947/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.