Thiongo v Elsie Ridge Limited & 4 others
The bottom line
#The Environment and Land Court struck out a landowner's suit because he skipped mandatory environmental and planning tribunals before going to court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC vis-à-vis statutory tribunals
The ELC has original and appellate jurisdiction over the dispute, but the existence of statutory dispute resolution mechanisms means the plaintiff should have pursued those first
The court found that prayers (a)-(g) fall within the NET's mandate under section 129 EMCA and prayers (a), (b), (c) and (g) fall within the County Physical and Land Use Planning Liaison Committee's remit under section 78 of the Physical and Land Use Act, 2019. Relying on Kibos Distillers and the Karume principle, the court held original jurisdiction does not oust competent statutory organs and exercised judicial restraint.
Doctrine of exhaustion
The plaintiff did not sufficiently establish exhaustion or justify non-exhaustion; his NET appeal was dismissed as time-barred without hearing the merits
The plaintiff contended the statutory remedy was unavailable, ineffective and insufficient, but the court found no sufficient evidence of exhaustion. His appeal to the NET was dismissed for being time-barred, so the merits were never considered. The court held litigants aware of alternative mechanisms must exhaust them before approaching the court, citing Muthinja Kabiro and section 9(2) of the Fair Administrative Actions Act.
Res judicata
The issue was already determined by Justice Okong'o and the court declined to pronounce itself on it again
The court noted the res judicata question had already been pronounced upon by Justice Okong'o in prior proceedings between the parties and considered the same spent, declining to revisit it.
Constitutional issues as a route around statutory remedies
Alleged constitutional violations do not oust tribunal jurisdiction; statutory remedies should be pursued first
Relying on Bernard Murage, the court held that not every violation of law must be raised as a constitutional issue, and that alleging a constitutional right violation does not oust the jurisdiction of tribunals, citing section 129(3) EMCA and Kibos Distillers.
Legal principles established
#- Where a statute provides an alternative dispute resolution mechanism, a litigant must exhaust it before invoking the court's jurisdiction, even where the court has original jurisdiction
- Original jurisdiction is not an ouster clause; a court with original jurisdiction should exercise judicial restraint where statutory bodies have been legislatively mandated
Court orders
#- 1.The plaintiff's suit is struck out with costs to the 1st and 2nd defendants
- 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, "Thiongo v Elsie Ridge Limited & 4 others", Case Analysis (2023). Environment & Land Case 1593 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16300/eng@2023-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.