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ELCPartially AllowedPetition E002 of 2023· [2023] KEELC 17563 (KLR)

Legal Advice Centre t/a Kituo Cha Sheria v National Environment Management Authority & 5 others

Environment and Land Court
18 May 2023
7,971 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to rule on baobab tree licensing because a tribunal was already handling that issue, but kept the human rights claims alive.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (Makori J) determines a preliminary objection by the National Environment Management Authority challenging the court's jurisdiction over a constitutional petition concerning the uprooting and export of eight Kilifi baobab trees to Georgia. The petitioner, Legal Advice Centre t/a Kituo Cha Sheria, sought declarations of violations of Articles 10, 11, 42, 43, 60 and 69 of the Constitution and international instruments, compensation, a conservatory order against further uprooting and export, restoration of felled trees, and public education on conservation. NEMA argued that disputes over EIA licences and permits lie with the National Environment Tribunal under Section 129 of EMCA, invoking the exhaustion doctrine and the Supreme Court's Kibos and United Millers jurisprudence on judicial abstention. The petitioner countered that the petition is founded on the Constitution, not EMCA, and that the ELC has jurisdiction under Article 162(2)(b) over environmental constitutional violations. The court agreed that the ELC's mandate over constitutional environmental violations is wide, but held that where a petition is multifaceted and its dominant issue is licensing, the Kibos doctrine requires the constitutional issues to be reserved pending the primary adjudicative authority's determination. Since NET 45 of 2022 (Omar Salim Mwakweli v NEMA & Georgy Gvasaliya) already covers the licensing, the petition collapsed on all licensing aspects, the notice of motion was dismissed, and the remaining constitutional claims were stayed pending NET's determination. As public interest litigation, each party was to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELC over a petition with mixed licensing and constitutional claims

Holding

The court applied the Kibos doctrine of judicial abstention: licensing aspects collapse in favour of NET, while constitutional violation claims are stayed pending NET's determination

Reasoning

The court traced the Kibos litigation from the ELC through the Court of Appeal to the Supreme Court, which endorsed judicial abstention (the Pullman doctrine) requiring courts to reserve constitutional issues pending determination by legislatively mandated institutions. Since NET 45 of 2022 already covers the baobab licensing, the court declined jurisdiction on licensing but stayed rather than dismissed the constitutional claims.

p. 14
02

Nature of a proper preliminary objection

Holding

The objection, resting on jurisdiction, was properly raised and capable of disposing of the suit or its substratum

Reasoning

Applying Mukisa Biscuits, the court found the objection was a point of law pleaded and arising from the pleadings, attacking the court's jurisdiction. Citing Owners of the Motor Vessel 'Lillian S', jurisdiction must be decided at the earliest opportunity since without it a court cannot make one more step.

p. 10
03

Costs in public interest litigation

Holding

No costs awarded; each party to bear its own costs at this stage

Reasoning

The court reasoned that the baobab extraction and exportation attracts significant public interest in an era of climate change, and in the spirit of environmental conservation the petitioner should not be condemned to pay costs.

p. 15

Legal principles established

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  • Where a petition is multifaceted and contains licensing issues within a statutory tribunal's mandate, the court should reserve the constitutional issues pending determination by the primary adjudicative authority (the Kibos doctrine of judicial abstention)
  • The ELC has jurisdiction over constitutional violations relating to the environment, while NET's scope is limited to licence and licensing disputes under Section 129 of EMCA

Court orders

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  1. 1.The notice of motion dated is hereby dismissed
  2. 2.The Petition partly collapses on ALL aspects relating to licensing now within the purview of NET 45 of 2022 Omar Salim Mwakweli and Others V NEMA and Georgy Gvasaliya
  3. 3.The pending Constitutional violation claims are hereby stayed pending the determination of NET 45 of 2022 Omar Salim Mwakweli and Others V NEMA and Georgy Gvasaliya
  4. 4.As this is public interest litigation, costs to be borne by each party at this stage

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 3, 10, 11, 42, 43, 46, 47, 50, 60, 69, 70, 159, 162(2)(b), 165(3)(b)
  • Environmental Management and Co-ordination Act, 1999Sections 7, 9(j) and (l), 31, 50, 51, 53, 58, 108, 125, 126, 129(1), (2), (3)
  • Forest Conservation and Management ActSection 70
  • Kenya Plant Health Inspectorate Service Act, 2012Section 27 and First Schedule
  • Environment and Land Court Act, 2011Section 13
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 17, 18, 22, 23, 24, 25
  • Convention on Biological DiversityArticles 1, 8, 10
  • Nagoya Protocol on Access to Genetic Resources
  • African Charter on Human and People's RightsArticle 22
  • International Covenant on Civil and Political RightsArticle 27
  • Universal Declaration of Human Rights

Cases cited (23)

  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others
    [2015] eKLR

    Exhaustion doctrine - courts as fora of last resort where alternative dispute resolution mechanisms exist

  • Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another
    [2020] eKLR

    Statutory dispute resolution mechanisms must be exhausted first; burden on party bypassing them

  • Kibos Distillers Limited and 4 others v Benson Ambuti Adega and 3 Others
    Civ Appeal No 153 of 2019 [2020] eKLR

    Original jurisdiction does not oust jurisdiction of legislatively mandated organs; multifaceted claims cannot confer jurisdiction

  • United Millers Limited v Kenya Bureau of Standards and 5 Others
    [2021] eKLR

    Deference to statutory dispute resolution bodies; exhaustion of alternative mechanisms

  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 Others
    [2020] eKLR, Petition 3 of 2020

    Judicial abstention/Pullman doctrine - reserve constitutional issues pending tribunal determination

  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors
    [1969] E.A. 696

    Definition of a preliminary objection as a point of law pleaded which may dispose of the suit

  • Salat Aden Mohamed & another v Noor Aden Abdullahi & 4 Others
    [2022] eKLR

    Similar prayers; statutory procedures of Public Complaints Committee and NET circumvented

  • Omar Salim Mwakweli and Others v NEMA and Georgy Gvasaliya
    NET 45 of 2022

    Pending tribunal proceedings on the same subject matter - felling and export of 8 baobab trees

  • Mohammed Said v County Council of Nandi
    Nakuru Constitutional Petition No 2 of 2013 [2013] eKLR

    ELC jurisdiction to hear any constitutional petition relating to environment and land, not only Articles 42, 69, 70

  • West Kenya Sugar Co Limited v Busia Sugar Industries Limited & 2 Others
    [2017] eKLR

    NET has no mandate over constitutional violations relating to environment; limited to licence appeals

  • Paolo Di Maria & 5 Others v Alice M. Kuria & 5 Others
    [2021] eKLR

    ELC jurisdiction over environmental matters under Article 162(b) and Section 13 of ELC Act

  • Clips Ltd v Brand Imports (Africa) Ltd
    [2015] eKLR

    New issues cannot be raised in submissions; submissions are not pleadings

  • Republic v Chairman Public Procurement Administrative Review Board & another Ex-Parte Zapkass Consulting and Training Limited & another
    [2014] eKLR

    New issues raised by way of submissions are best ignored

  • Douglas Odhiambo Apel & another v Telkom Kenya Limited
    Civil Appeal No 115 of 2006

    Documentary evidence cannot be annexed to submissions

  • Mumo Matemu v Trusted Society of Human Rights Alliance and 5 Others
    [2014] eKLR

    No costs in public interest litigation

  • Jasbir Singh Rai and 3 Others v Tarlochan Singh Rai and 4 Others
    [2014] eKLR

    Costs declined in public interest matters

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; a court without jurisdiction must down tools

  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR

    Where a clear procedure for redress is prescribed, it must be strictly followed

  • Ken Kasinga v Daniel Kiplangat Kirui & 5 others
    [2015] eKLR

    Multifaceted claims - jurisdiction despite another forum (disapproved by Court of Appeal)

  • Peter Odour Ngoge v Francis Ole Kaparo & others
    SC Petition No 2 of 2012 [2012] eKLR

    Significance of respecting the hierarchy of the judicial system

  • Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others
    SC Petition No 3 of 2016 [2019] eKLR

    First opportunity to be given to statutory/quasi-judicial bodies to deal with disputes

  • Railroad Commission of Texas v Pullman Co
    312 US 496 (1941)

    Origin of the Pullman abstention doctrine

  • England v Louisiana State Board of Medical Examiners
    375 US 411 (1964)

    Reservation of federal claims after state court determination

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Legal Advice Centre t/a Kituo Cha Sheria v National Environment Management Authority & 5 others", Case Analysis (2023). Petition E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17563/eng@2023-05-18

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