Mbae v Nairobi City County Government (Environment & Land Petition 4 of 2023) [2024] KEELC 3472 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a challenge to the Dandora Waste-to-Energy tender, ruling it was filed too early and before the wrong forum.
What this practically means
#Executive summary
#Key legal issues
#Prematurity/ripeness
The petition was filed prematurely because only the tender had been awarded, no contract had been signed, no activity had commenced on the dumpsite and no EIA had been undertaken
The court found there was no dispute that no activity had commenced on the Dandora dumpsite beyond the award of the tender. With no contract signed, the scope of works could not be inferred and no environmental impact could be established. The EIA and public participation would follow contract signature, so allegations of rights violations were anticipatory.
Jurisdiction over the tender award
The Environment and Land Court lacks power to quash the tender award because tendering disputes do not concern use and occupation of land
The court accepted that the exhaustion objection fails where constitutional violations are alleged, but nonetheless examined jurisdiction over prayer 2. Article 162(2)(b) confers jurisdiction over land use and occupation disputes; advertising, evaluating and awarding a tender falls outside that, and the PPP Act provides the appellate channel via the Committee and the High Court.
Res judicata on breach of ELC Petition No. 43 of 2019 orders
Alleged breach of the orders in ELC Petition No. 43 of 2019 cannot found a fresh suit; the issue was already raised and determined in a ruling of 9th November 2023
The Petitioner tied the tender to the earlier decree requiring decommissioning of the Dandora dumpsite. The court held such allegations belong in the former suit, and since breach of the decree was already litigated in the ruling of 9th November 2023, re-raising it is res judicata.
Violation of right to clean and healthy environment
No violation or threatened violation was proved as the project had not commenced
The court accepted the Respondent's and Interested Party's position that an EIA would be conducted after contract signature, with public participation at that stage. Since no activity was ongoing on the site, the alleged contravention of Section 58 of EMCA was premature and no declaratory orders could issue.
Legal principles established
#- The doctrine of exhaustion does not defeat a petition alleging violation of constitutional rights
- This Court's jurisdiction under Article 162(2)(b) does not extend to reviewing tender awards
- A constitutional petition is premature where no activity under the impugned decision has commenced and no right is yet threatened
Court orders
#- 1.The petition is struck out
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Articles 165(3)(b), 22 and 23 of the Constitution as pleaded by the Petitioner; the court found jurisdiction ousted on the tender issue and proceeded under Article 162(2)(b)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbae v Nairobi City County Government (Environment & Land Petition 4 of 2023) [2024] KEELC 3472 (KLR)", Case Analysis (2024). Petition (Nairobi), dated 1st September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3472/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.