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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Preliminary Objection on jurisdiction and exhaustion is a proper preliminary objection
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.
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.
Whether the Petitioner improperly invoked the Court's jurisdiction by bypassing statutory alternative mechanisms (County Physical and Land Use Planning Liaison Committee, NECC, NET)
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.
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.
Whether the Liaison Committee and NET have jurisdiction over alleged violations of the right to a clean and healthy environment
They do not; redress for constitutional violations is not within their mandate.
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 31st October, 2023 is dismissed
- 2.Costs shall abide the outcome of the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.