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ELCDismissedEnvironment & Land Case 524 of 2013· [2023] KEELC 20354 (KLR)

Titan Limited v Qiye Company Limited & another

Environment and Land Court
28 September 2023
1,267 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 refused to send a decade-old environmental dispute to a tribunal, ruling it had jurisdiction because the claims were inseparable and damages were sought.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (LN Mbugua, J) determined a preliminary objection dated 23 February 2023 by the 2nd Defendant (NEMA) and a Notice of Motion dated 9 March 2023 by the 1st Defendant (Qiye Company Limited), both contending that the court lacked jurisdiction over Titan Limited's suit because Sections 125, 129(1) and 130 of EMCA and Regulation 46 of the Environmental (Impact Assessment and Audit) Regulations, 2003 vest jurisdiction over licensing matters in the National Environment Tribunal. The plaintiff, whose adjacent property LR No. 3734/23 allegedly suffers from the 1st Defendant's development on LR No. 3734/22, opposed, arguing its original jurisdiction under Section 13 of the Environment and Land Court Act was properly invoked, that it was not an aggrieved person under Section 129, and that it sought reliefs (compensation, demolition) the NET cannot grant. The court identified a single issue: whether it had jurisdiction under Sections 129(1) and 130 of EMCA. It dismissed both applications on two grounds: first, the suit was a decade old and the defendants raised the jurisdictional issue late and without explanation, so the statutory mechanisms' defined timelines could no longer be met; second, the developmental, licensing and environmental-rights claims were intertwined and inseverable, and the NET could not award damages. Applying Taib Investment and Dominic G. Ng'ang'a, the court held it was clothed with jurisdiction under Article 162(2)(b) of the Constitution and dismissed both applications with costs to the plaintiff.

Key legal issues

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01

Whether the ELC's jurisdiction is ousted by Sections 129(1) and 130 of EMCA conferring jurisdiction on the National Environment Tribunal

Holding

The objection fails; the ELC has jurisdiction over the suit.

Reasoning

The court noted the suit is a decade old and the statutory mechanisms under Sections 129 and 130 have defined timelines that the passage of time would not allow. The claims on licensing, development and the right to a clean environment are intertwined and cannot be severed, and the NET cannot grant damages. Authorities holding the court clothed with jurisdiction under Article 162(2)(b) were applied.

p. 3
02

Whether the defendants' delay in raising the jurisdictional issue should bar the objection

Holding

Yes; the delay alone justified disallowing the objection and application.

Reasoning

The 1st Defendant pleaded in 2014 that it would raise a preliminary objection at the earliest opportunity but did not; the 2nd Defendant never raised it in its 2014 pleading. No plausible explanation was given for raising the issue after almost a decade, and the statutory timelines under EMCA could no longer be met.

p. 3

Legal principles established

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  • Where developmental/licensing issues and environmental rights claims are intertwined and cannot be severed, and reliefs such as damages lie beyond the NET, the Environment and Land Court has jurisdiction under Article 162(2)(b).
  • Inordinate and unexplained delay in raising a jurisdictional objection may disentitle a party where statutory dispute-resolution mechanisms have time limits that the passage of time has foreclosed.

Court orders

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  1. 1.The Preliminary Objection dated 23.2.2023 is dismissed
  2. 2.The Notice of Motion application dated 9.3.2023 is dismissed
  3. 3.Costs of both the preliminary objection and the application awarded to the Plaintiff

Authorities

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Legislation

  • Environmental Management and Co-ordination ActSection 125
  • Environmental Management and Co-ordination ActSection 129(1)
  • Environmental Management and Co-ordination ActSection 130
  • Environmental Management and Co-ordination ActSection 13 (Environment and Land Court Act)
  • Environmental (Impact Assessment and Audit) RegulationsRegulation 46
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (12)

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

    Jurisdiction must be raised at the earliest opportunity (relied on by 2nd Defendant)

  • Jason Edward Matus & Another v Summit Gehlot & another; National Environment Authority & 2 others (Interested Parties)
    [2021] eKLR

    NET's jurisdiction over EMCA licensing matters (2nd Defendant)

  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    [2020] eKLR

    EMCA dispute-resolution mechanisms (2nd Defendant)

  • County Government of Nyeri v National Environment Management Authority
    [2014] eKLR

    Ouster of court jurisdiction by Section 130 EMCA (1st Defendant)

  • Salat Aden Mohamed & Another v Noor Aden Abdullahi & 4 others
    [2022] eKLR

    Jurisdictional objection (1st Defendant)

  • R v National Environmental Tribunal & 2 others Ex parte Athi Water Services Board
    [2015] eKLR

    A person who did not participate in issuance of a licence is not an aggrieved person (Plaintiff)

  • Republic v National Environmental Tribunal & 4 others Ex parte China Road and Bridge Corporation
    [2016] eKLR
  • Owners of Motor vessel 'Lilian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1

    Jurisdiction defined by the Constitution and statute

  • Sylvester Munyalo Makundi v George Mutemi Makundi & 2 others
    [2015] eKLR
  • DT Dobie & Company (Kenya) Ltd v Muchina
    [1982] KLR 1
  • Taib Investment Ltd v Fahim Salim Said & 5 Others
    [2016] eKLR

    Court held it had jurisdiction under Article 162(2)(b) in a similar issue

  • Dominic G. Ng'ang'a & another v Director General National Environment Management Authority & 4 others
    [2020] eKLR

    Intertwined environmental-rights and licensing claims vest jurisdiction in the ELC under Article 162(2)(b)

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 (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, "Titan Limited v Qiye Company Limited & another", Case Analysis (2023). Environment & Land Case 524 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20354/eng@2023-09-28

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