Active Environment Team v Seascan Energy Ltd & another; National Environment Management Authority & 5 others (Interested Parties) (Environment & Land Petition E035 of 2022) [2024] KEELC 4801 (KLR)
The bottom line
#The Mombasa Environment and Land Court struck out a land petition because the petitioner should have first complained to the National Land Commission before going to court.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of remedies and constitutional avoidance
The petition, whose main remedy was a permanent injunction over dealings in public land, was premature because the petitioner ought first to have presented the complaint to the National Land Commission under Regulations 4 and 5 of the 2017 Regulations
The court found the subject matter fell squarely within the NLC's statutory review powers under section 14 of the NLC Act and Regulations 4 and 5. Citing Communication Commission of Kenya v Royal Media Services via Valentine Odhiambo, it applied the doctrine of constitutional avoidance, holding that alleged human rights violations do not by themselves confer jurisdiction where normal statutory procedures exist. The petition was premature and an abuse of process.
Whether the remaining grounds (legal capacity, verifying affidavit sworn by a stranger, defective petition) are pure points of law
These grounds were rejected as they required evidence and did not raise pure points of law
The court applied the Mukisa Biscuits/Oraro v Mbaja test: a preliminary objection must not be blurred by factual details liable to be contested or proved through evidence. Whether the petitioner is a legal person, whether the verifying affidavit was sworn by a stranger, and whether the petition is incurably defective all call for factual investigation, so they could not be determined summarily on a preliminary objection.
Costs
Costs follow the event under section 27 of the Civil Procedure Act
Having upheld the preliminary objection and struck out the petition, the court applied the general rule in section 27 of the Civil Procedure Act that costs follow the event unless there are good reasons to depart from it, and awarded costs against the Petitioner.
Legal principles established
#- A preliminary objection must be a pure point of law not dependent on facts requiring evidential proof
- Where a competent statutory forum (the NLC under Regulation 5(7)(e)) exists and can determine a matter, a petitioner must first resort to it; the Constitution cannot be used as a general substitute for normal procedures
Court orders
#- 1.The notice of preliminary objection dated 6th February 2023 is upheld
- 2.The petition dated 23rd September 2022 is consequently struck out
- 3.Costs to be borne by the Petitioner
- Jurisdiction invoked
- Constitution of Kenya (Environment and Land Court jurisdiction); National Land Commission Act No. 5 of 2012, section 14; National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017, Regulations 4 and 5
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Active Environment Team v Seascan Energy Ltd & another; National Environment Management Authority & 5 others (Interested Parties) (Environment & Land Petition E035 of 2022) [2024] KEELC 4801 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4801/eng@2024-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.