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ELCOtherEnvironment & Land Petition 3 of 2023· [2023] KEELC 18807 (KLR)

Watamu Association (Suing through its elected officials Clare Taylor Bea Anderson & Damian Davies) v Wood & 3 others

Environment and Land Court
13 July 2023
MOM.A. Odeny
2,911 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear a community's environmental petition challenging a Watamu development, despite arguments it belonged before the environment tribunal.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, J of the Environment and Land Court at Malindi determined two preliminary objections dated February 9 and February 15, 2023 raised by the 1st and 2nd Respondents against a constitutional petition by the Watamu Association. The Petitioner challenged the construction of a permanent multi-storey building on LR No 8594/13 at Watamu and the adjacent riparian zone, seeking declarations that the riparian land is public land under Article 62, that the construction is illegal, that NEMA and County Government approvals were irregularly obtained, plus injunction, demolition and restoration orders, environmental audit and compensation. The Respondents argued the petition offended Sections 125 and 129 of EMCA, that the Petitioner should have exhausted local remedies before the National Environment Tribunal, and that the petition was an abuse of process; the 3rd Respondent additionally invoked the dispute resolution mechanism under Section 76 of the Physical and Land Use Planning Act, 2019. The Petitioner relied on the multifaceted nature of the petition and exceptions to the exhaustion doctrine. The court first found the Petitioner had locus standi as an association suing through elected officials. It accepted that EIA licence issues fall within the NET's jurisdiction under Section 129 of EMCA, but held that Section 13 of the Environment and Land Court Act confers jurisdiction over environmental and land disputes and constitutional redress under Articles 42, 69 and 70, and that the NET cannot deal with constitutional violations. Following TAIB Investments and West Kenya Sugar, the court held it had jurisdiction and dismissed both preliminary objections with costs to the Petitioner. The substantive petition proceeds to hearing.

Key legal issues

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01

Whether the ELC or the NET has jurisdiction over the petition

Holding

The ELC has jurisdiction; the preliminary objections were dismissed.

Reasoning

Section 129 of EMCA gives the NET jurisdiction over appeals concerning EIA licences, but Section 13 of the Environment and Land Court Act confers original jurisdiction on the ELC over environmental and land disputes and expressly preserves its power to hear redress for violations of Articles 42, 69 and 70. The petition raises multifaceted issues - riparian public land, county approvals and constitutional rights - which the NET cannot entertain, so the court cannot terminate the petition at a preliminary stage.

02

Whether the Petitioner has locus standi

Holding

The Petitioner, an association suing through its elected officials, has locus standi.

Reasoning

The court noted that the Petitioner described itself in the descriptive part of the petition as suing through its elected officials, which is within the law and procedure in respect of Societies. The respondents did not seriously contest this beyond the preliminary objections, and the court found the point settled at the outset.

Legal principles established

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  • The ELC has jurisdiction under Section 13 of the Environment and Land Court Act to hear constitutional petitions raising multifaceted environmental and land issues, including challenges to EIA licences, where the issues cannot be dealt with separately by tribunals.
  • The National Environment Tribunal has no mandate to determine constitutional violations relating to the environment.
  • A party aggrieved by an EIA licence decision may appeal to the NET under Section 129 of EMCA, but that does not oust the ELC's jurisdiction over other rights violations raised in the same petition.

Court orders

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  1. 1.The two Preliminary Objections dated February 9, 2023 and February 15, 2023 are dismissed
  2. 2.Costs of the Preliminary Objections awarded to the Petitioner

Authorities

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Legislation

  • Constitution of KenyaArticles 3, 10(2), 19, 20, 21, 22, 23, 42, 60, 62, 66, 69, 70, 162(2)(b), 258 & 259
  • Environmental Management and Coordination Act, 1999Sections 125 and 129
  • Environment (Impact Assessment & Audit) Regulations, 2003not specified
  • Land Act, 2012not specified
  • Water Quality Regulations, 2006not specified
  • Environment and Land Court ActSection 13
  • Physical and Land Use Planning Act, 2019Section 76
  • Civil Procedure RulesOrder 21 [1]

Cases cited (12)

  • Owners of Motor Vessel 'Lilian s' v Caltex Oil (Kenya) Ltd
    [1985] eKLR

    Jurisdiction must be determined at the outset

  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    Civil Appeal No 153 of 2019 [2020] eKLR

    Jurisdiction under Section 129 EMCA; treatment of multifaceted petitions

  • Joseph Owino and Another vs NEMA & Africa Plysack Ltd
    [2014] eKLR

    A person aggrieved by a decision has a right to appeal to the tribunal

  • Isaac Ngugi –vs- Nairobi Hospital & Another
    Nairobi Petition No 461 of 2012 [2013] eKLR

    Where infringement can be redressed within a legislative framework, use that framework

  • Rich Productions Ltd vs Kenya Pipeline Limited and Public Procurement Oversight Authority
    Nairobi Petition No 73 of 2014 [2014] eKLR

    Same exhaustion principle

  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR

    Exhaustion of alternative dispute resolution mechanisms

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

    Where a dispute resolution mechanism exists outside court, it must be exhausted first

  • Kirinyaga United Bar Owners Organization v County Secretary Kirinyaga County Government – Kirinyaga County & 6 others
    [2014] eKLR

    Locus standi of associations

  • Republic vs NEMA Ex parte Sound Equipment Ltd
    CACA No 84 of 2010 [2011] eKLR

    Challenges to EIA licences should be made to the NET

  • Samson Chembe Vuko vs Nelson Kilumo & 2 Others
    [2016] eKLR

    Statutory redress procedures must be strictly followed

  • TAIB Investments Limited v Fahim Salim Said & 5 others
    [2016] eKLR

    ELC is the suitable forum for multifaceted environmental and developmental issues

  • West Kenya Sugar Co Limited – v- Busia Sugar Industries Limited & 2 others
    [2017] eKLR

    NET has no mandate over constitutional violations relating to the environment

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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Later judgments citing this (2)

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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, "Watamu Association (Suing through its elected officials Clare Taylor Bea Anderson & Damian Davies) v Wood & 3 others", Case Analysis (2023). Environment & Land Petition 3 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18807/eng@2023-07-13

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