Mutula Kilonzo Junior & Kethi D Kilonzo t/a Kilonzo & Company Advocates v Kenya Urban Roads Authority & 2 others
The bottom line
#Kenya's Environment and Land Court refused to halt a road project or Tribunal proceedings, ruling it can only hear appeals from the National Environment Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC can stay proceedings before the National Environment Tribunal
The court cannot stay Tribunal proceedings; the Tribunal is clothed with jurisdiction over environmental licences under Sections 125 and 129 of EMCA and the ELC's role is appellate only.
The court noted the Tribunal is established under Section 125(1) of EMCA and clothed with jurisdiction over environmental licences under Section 129, with appeals lying to the ELC under Section 130. Relying on the Supreme Court's decision in Benson Ambuti Adege v Kibos Distillers, constitutional issues on environmental rights should be reserved pending the Tribunal's determination of EIA licence validity. The stay prayer was also internally inconsistent with the petition, which asked that construction be halted until the Tribunal determined the appeal.
Whether conservatory/injunctive orders should issue
No. The same injunction application was pending undetermined before the Tribunal, rendering the present application sub judice; an injunction being an equitable remedy, the court declined to grant it.
The petitioner had filed an injunction application before the Tribunal on March 17, 2023, and there was no evidence it was fully determined. Invoking the sub judice rule as articulated in the Law Society of Kenya ex parte case, the court held that parallel litigation on the same cause of action, subject matter and relief should not be entertained by courts of concurrent jurisdiction, to avoid contradictory verdicts and multiplicity of proceedings.
Legal principles established
#- The Environment and Land Court has no jurisdiction to interfere with proceedings of the National Environment Tribunal; it may only hear appeals from the Tribunal under Section 130 of EMCA.
- Where a parallel application on the same cause of action is pending before the Tribunal, a similar application before the ELC is sub judice and should not be entertained.
Court orders
#- 1.The application dated April 25, 2023 is dismissed.
- 2.Costs of the application shall abide the outcome of the suit.
- 3.Any orders of injunction or status quo given herein are discharged.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act (court's jurisdiction under Section 130 EMCA limited to appeals from the National Environment Tribunal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutula Kilonzo Junior & Kethi D Kilonzo t/a Kilonzo & Company Advocates v Kenya Urban Roads Authority & 2 others", Case Analysis (2023). Environment & Land Petition E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19108/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.