Sikali (Chair) Suing on behalf of Karen Langata District Association v Nairobi City County Government & 2 others (Petition E004 of 2022) [2023] KEELC 925 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a residents' association's challenge to a Karen development because the law requires such disputes to start at the National Environmental Tribunal or the planning liaison committee, not the court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has original jurisdiction over challenges to change of user, development permission, building plans and EIA licences
The court has no jurisdiction; the NET and the Liaison Committee are the mandated first-instance forums and the ELC's jurisdiction is appellate.
Section 129 EMCA vests first-instance jurisdiction over licence disputes in the National Environmental Tribunal, with ELC appeals under Section 130. Under Section 63(3) and (4) of the County Physical and Land Use Planning Act, the Liaison Committee hears appeals against county executive committee decisions on development permission, with the ELC only as a second appellate body. Framing the dispute as a constitutional petition does not confer jurisdiction, as the constitutional issues were inseparable from matters belonging to those statutory bodies.
Whether failure by the authorities to provide information justified bypassing the statutory forums
The NET Rules contemplate hearing matters even without a decision, since a failure to make a decision is itself a disputable decision.
The petitioners argued they approached the court because their requests for information on the decisions went unanswered. The court rejected this as a gateway to original jurisdiction, noting that Rule 2 of the NET Rules defines a disputed decision to include a failure by the authority or its officers to make a decision, so the Tribunal could still entertain the grievance.
Whether the court could proceed only on the pleaded constitutional rights violations
No - the constitutional issues were too intertwined with the non-justiciable issues to be severed.
The court acknowledged it has jurisdiction over constitutional questions but found, on examining the petition as drawn, that the constitutional claims could not be cleanly separated from the change of user, development permission and EIA issues reserved for the statutory tribunals, leaving no basis to proceed partially.
Legal principles established
#- The National Environmental Tribunal has first-instance jurisdiction over appeals against the grant or refusal of environmental licences, and the ELC's jurisdiction under EMCA is appellate only.
- The County Physical and Land Use Planning Liaison Committee hears appeals against decisions of the County Executive Committee member on development permission at first instance; the ELC's role is appellate.
- A court cannot confer jurisdiction on itself by the manner in which pleadings are framed; where constitutional issues are intertwined with matters outside its jurisdiction, the court cannot proceed.
Court orders
#- 1.The Preliminary Objection succeeds
- 2.The petition is struck out with no orders as to costs
- Jurisdiction invoked
- Article 169(1) of the Constitution; Section 129 and 130 of the Environmental Management and Co-ordination Act; Sections 63(3) and (4) of the County Physical and Land Use Planning Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sikali (Chair) Suing on behalf of Karen Langata District Association v Nairobi City County Government & 2 others (Petition E004 of 2022) [2023] KEELC 925 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/925/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.