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ELCDismissedPetition dated 12th October, 2023· [2024] KEELC 4016 (KLR)

Millennium Gardens Management Limited v Metricon Home Nairobi Company Limited; Nairobi City County Government & 2 others (Interested Parties) (Environment and Land Petition E121 of 2023) [2024] KEELC 4016 (KLR)

Environment and Land Court
2 May 2024
7,616 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ruled that residents facing a large Nairobi development can go straight to court when their constitutional rights are at stake.

What this practically means

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Executive summary

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The Respondent and the Interested Parties raised a Notice of Preliminary Objection dated 31st October 2023 against the Petitioner's Petition and Motion dated 12th October 2023, which challenged the Respondent's proposed development of three 16-storey blocks of 512 apartment units on L.R No 330/155 along Mbaazi Avenue, Nairobi. The objectors contended that the Court lacked jurisdiction and that the Petition offended the doctrine of exhaustion, since remedies lay before the County Physical and Land Use Planning Liaison Committee under Sections 76 and 78 of PLUPA, the National Environmental Complaints Committee under Sections 31, 32 and 33 of EMCA, and the National Environmental Tribunal under Section 129 of EMCA. The Petitioner countered that its claims concerned constitutional violations, including the right to a clean and healthy environment and public participation, which only the ELC can determine. The court framed a single issue: whether the Petitioner properly invoked the Court's jurisdiction. Applying Mukisa Biscuits, Owners of Motor Vessel 'Lillian S', and the Supreme Court's decisions in Benson Ambuti Adega v Kibos Distillers and Nicholas Abidha v Attorney General, the court held that the objection was a pure point of law, but that exhaustion disputes turn on a case-by-case assessment of the efficacy of alternative remedies. Because the claim was multifaceted and raised genuine constitutional questions that tribunals cannot determine, the alternative avenues were inadequate. The Preliminary Objection was dismissed, with costs abiding the outcome of the Petition.

Key legal issues

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01

Whether the Preliminary Objection on jurisdiction and exhaustion is a proper preliminary objection

Holding

The objection is a pure question of law since it can be determined from the pleadings without receiving evidence, and is therefore properly raised as a preliminary objection.

Reasoning

Applying Mukisa Biscuits, the court found that whether the court has jurisdictional competence on account of contravention of the exhaustion doctrine is a pure question of law. One need only look at the pleadings to ascertain it; no evidence is required. The objection by the Respondent, supported by the Interested Parties, therefore met the threshold of a proper preliminary objection.

p. 5
02

Whether the Petitioner improperly invoked the Court's jurisdiction by bypassing statutory alternative mechanisms (County Physical and Land Use Planning Liaison Committee, NECC, NET)

Holding

The objection fails. The Petition raises genuine constitutional claims (right to clean and healthy environment, public participation) which only the ELC can determine; the claim is multifaceted and the alternative remedies are neither adequate nor efficacious for constitutional violations.

Reasoning

Relying on the Supreme Court's decisions in Kibos Distillers (Benson Ambuti Adega) and Nicholas Abidha, the court held that disputes on exhaustion must be determined case by case, considering the efficacy of alternative remedies and whether constitutional claims are a smoke screen. Tribunals cannot determine constitutional violations. Given the multifaceted nature of the claim, it would be impractical to require the Petitioner to lodge several appeals before different tribunals when the ELC can address all issues.

p. 12
03

Whether the Liaison Committee and NET have jurisdiction over alleged violations of the right to a clean and healthy environment

Holding

They do not; redress for constitutional violations is not within their mandate.

Reasoning

Citing Nicholas Abidha and Nabatkhanu Karim, the court noted that Section 129 of EMCA confines NET to appeals on licences, not constitutional violations, and the Liaison Committees established under PLUPA have no jurisdiction to determine issues regarding violation of the right to a clean and healthy environment. The Petitioner's grievance centres on threatened violation of constitutional rights, entitling it under both EMCA and the Constitution to approach the court.

p. 12

Legal principles established

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  • Jurisdiction is everything; a court without jurisdiction cannot make one more step.
  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct.
  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the courts is invoked; courts are fora of last resort.
  • The availability of an alternative remedy does not necessarily bar constitutional relief; a nuanced, case-by-case approach is required, and tribunals such as NET have no jurisdiction over constitutional violations.
  • Where a claim is multifaceted, it is impractical to require a litigant to pursue multiple tribunal appeals when the ELC can address all issues.

Court orders

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  1. 1.The Preliminary Objection dated 31st October, 2023 is dismissed
  2. 2.Costs shall abide the outcome of the Petition

Authorities

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Legislation

  • Physical and Land Use Planning ActSections 31, 32, 33
  • Physical and Land Use Planning Act, 2019Sections 61(3) and (4), 72, 76, 78
  • Environmental Management and Coordination Act (EMCA)Sections 3, 31, 32, 33, 125, 126, 129
  • Environment and Land Court ActSections 4(1), 13(1), 13(2)
  • Constitution of KenyaArticles 10, 22, 23(1), 23(3), 42, 47, 50, 69, 70(1), 159, 162(2)(b), 165(1)(c), 165(2)(b), 165(5)(b), 163(2)(b)
  • Fair Administrative Action ActSections 9(2), 9(4)
  • Energy ActSections 10, 25, 36, 106

Cases cited (30)

  • Owners of The Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) 1 KLR 1
  • Speaker of National Assembly v Karume
    [1992] KLR 21 / [2008] 1 KLR 425
  • Whitehorse Investments Ltd v Nairobi City County
    [2019] eKLR
  • Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others
    [2020] eKLR
  • Orata International Limited v National Environment Management Authority
    [2019] eKLR
  • Borbor & 2 Others v National Environment Management Authority
    [2022] eKLR
  • Immaculate Gicuku Mugo v Kiambu County Government
    [2021] eKLR
  • Kenya Revenue Authority & 2 Others v Darasa Investments Limited
    [2018] eKLR
  • Abidha Nicholas v Attorney General & Others / Nicholas Abidha v AG & Others
    [2023] eKLR
  • Peter Karungo Njoroge v Hijaz Development Limited & 4 Others
    [2018] eKLR
  • Justus Kalii Makau v Linet Achieng Amala & 2 Others
    [2019] eKLR
  • Omar Salim Mwakweli & 3 Others v Vipingo Development Limited & 2 Others
    [2021] eKLR
  • Republic v NEMA Ex-Parte Sound Equipment Ltd
    [2011] eKLR
  • Patrick Musimba v National Land Commission & 4 Others
    [2016] eKLR
  • Zakaria Macharia Kagunya & 2 Others v County Government of Laikipia & 2 Others
    [2016] eKLR
  • Benson Ambuti Adega & 2 Others v Kibos Distillers Limited & 5 Others
    [2020] eKLR
  • Francis Mugarami Kamau & 6 Others v Sycamore Pine Limited & 2 others
    [2021] eKLR
  • One Hundred and Two Peponi Road LLP & Another v National Environment Management Authority & 2 Others
    [2021] eKLR
  • Alice Mweru Ngai v KPLC Ltd
    [2015] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors
    (1969) EA 696
  • Geoffrey Muthinja and Another v Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested parties)
    [2020] eKLR
  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others
    [2018] eKLR
  • Nabatkhanu Karim H.P & 12 Others v Hwaock IM & Another; National Environment Management Authority (Interested Party)
    [2021] eKLR
  • C N M v W M G
    [2018] eKLR
  • Fredericks & Others v MEC for Education and Training, Eastern Cape & Others
    (2002) 23 ILJ 81 (CC)
  • S v Boesak
    (2001)(1) SA 912 (CC)
  • Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 Others
    [2017] eKLR
  • Kenya Revenue Authority & 5 others v Keroche Industries Limited
    CA No 2 of 2008
  • Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others
    (Pet.No.15 of 2020) [2023] KESC 14(KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act and Section 3 of EMCA

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Millennium Gardens Management Limited v Metricon Home Nairobi Company Limited; Nairobi City County Government & 2 others (Interested Parties) (Environment and Land Petition E121 of 2023) [2024] KEELC 4016 (KLR)", Case Analysis (2024). Petition dated 12th October, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4016/eng@2024-05-02

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