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ELCOtherNot stated in the judgment· [2023] KEELC 670 (KLR)

Watamu Hospital Limited v ATC Kenya Operations Limited; National Environment Management Authority (Interested Party) (Environment & Land Case 28 of 2022) [2023] KEELC 670 (KLR)

Environment and Land Court
7 February 2023
1,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear environmental rights claims over a telecom mast, rejecting attempts to route such disputes to the National Environment Tribunal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determines a preliminary objection dated May 24, 2022 in which the defendant contended that the court lacked jurisdiction over a suit concerning construction of a telecommunication mast, arguing the dispute ought first to go to the National Environment Tribunal under sections 125, 126 and 129 of the EMCA. Only the plaintiff filed submissions. Counsel for the plaintiff (Mr Atiang) relied on Samuel Kamau Macharia on the source of jurisdiction, and on Taib Investments, West Kenya Sugar and Paolo Di Maria on the distinct mandates of the ELC and the Tribunal. The court framed one issue: whether it has jurisdiction. It noted the objection turned on the disputed factual question whether the interested party had issued the defendant a construction licence - the plaintiff contended none was issued, evidenced by a stop order from the National Construction Authority - and a preliminary objection cannot rest on disputed facts per Oraro v Mbaja and Mukhisa Biscuit. Examining sections 129 and 130 of the EMCA and section 13 of the Environment and Land Court Act, the court held the Tribunal handles appeals on licences and restoration orders, whereas the plaint seeks declarations on violation of the right to a clean and healthy environment, injunctions and general damages, relief only the ELC can grant under article 162(2)(b) and articles 42, 69 and 70 of the Constitution. The preliminary objection was dismissed with costs; the suit proceeds before the ELC.

Key legal issues

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01

Whether the ELC or the National Environment Tribunal has jurisdiction over the suit

Holding

The ELC has jurisdiction because the reliefs sought (declarations on violation of the right to a clean environment, injunctions, damages) cannot be granted by the Tribunal.

Reasoning

Section 129 of the EMCA limits the Tribunal to appeals against licences, conditions, fees and restoration orders. The plaintiff's suit seeks constitutional environmental redress under articles 42, 69 and 70, which section 13(3) of the Environment and Land Court Act expressly reserves to the ELC. The court relied on prior decisions on the distinct mandates of the two fora and dismissed the objection.

p. 4
02

Whether the preliminary objection was properly raised

Holding

The objection was defective since it turned on the disputed factual question of whether a licence was issued to the defendant by the interested party.

Reasoning

The plaintiff contended no licence was issued by the interested party for the mast, evidenced by a stop order from the National Construction Authority. Following Oraro v Mbaja, a preliminary objection must not rest on disputed facts requiring ascertainment; the defendant filed no submissions to contest the factual position, so the objection could not stand.

p. 2

Legal principles established

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  • A court can only exercise jurisdiction conferred on it by the Constitution or written law, and parties cannot confer jurisdiction the court does not have.
  • A preliminary objection must not depend on disputed facts or facts to be ascertained by evidence.
  • The Environment and Land Court, not the National Environment Tribunal, is the proper forum for claims of violation of the right to a clean and healthy environment.

Court orders

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  1. 1.The preliminary objection dated May 24, 2022 is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiff

Authorities

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Legislation

  • Environment Management and Co-ordination Act (EMCA)section 125(1)
  • Environment Management and Co-ordination Act (EMCA)section 126
  • Environment Management and Co-ordination Act (EMCA)section 129
  • Environment Management and Co-ordination Act (EMCA)section 130
  • Environment and Land Court Actsection 13
  • Constitution of KenyaArticles 162(2)(b), 42, 69 and 70
  • Civil Procedure RulesOrder 21 [1]

Cases cited (6)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Taib Investments Limited v Fahim Salim Said & 5 others
    [2016] eKLR
  • West Kenya Sugar Co Limited v Busia Sugar Industries Limited & 2 others
    [2017] eKLR
  • Paolo Di Maria & 5 others v Alice M Kuria & 5 others
    [2021] eKLR
  • Mukhisa Biscuit Manufacturers Ltd v West End Distributors Ltd
    [1969] EA
  • Oraro v Mbaja
    (2005) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; section 13 of the Environment and Land Court Act

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, "Watamu Hospital Limited v ATC Kenya Operations Limited; National Environment Management Authority (Interested Party) (Environment & Land Case 28 of 2022) [2023] KEELC 670 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/670/eng@2023-02-07

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