Watamu Hospital Limited v ATC Kenya Operations Limited; National Environment Management Authority (Interested Party) (Environment & Land Case 28 of 2022) [2023] KEELC 670 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC or the National Environment Tribunal has jurisdiction over the suit
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.
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.
Whether the preliminary objection was properly raised
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.
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated May 24, 2022 is dismissed
- 2.Costs of the preliminary objection awarded to the plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.