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ELCStruck Out· [2024] KEELC 4946 (KLR)

Maasai Mara Landowners Conservancy Limited & another v Losokwan Camp Limited (Land Case E010 of 2024) [2024] KEELC 4946 (KLR)

Environment and Land Court
24 June 2024
2,279 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 struck out an environmental suit because the plaintiffs bypassed NEMA's complaint process before going to court.

What this practically means

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Executive summary

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The defendant, Losokwan Camp Limited, filed a preliminary objection dated 27th May, 2024 against the plaintiffs' plaint and notice of motion dated 21st May, 2024, contending that the Environment and Land Court lacked jurisdiction because the suit was filed in breach of Sections 125 and 129 of the Environment Management and Coordination Act (EMCA) and without first exhausting the statutory dispute resolution mechanisms under Section 32(a)(i). The plaintiffs' plaint sought a declaration that the defendant had no right to construct a camp on a wildlife corridor/habitat in Lemek Conservancy, an eviction order, a permanent injunction, and costs; the motion sought a temporary injunction against the camp's construction. The plaint itself pleaded that NEMA had cancelled the construction and issued a stop order which the defendant allegedly defied. The objection was canvassed by written submissions; the plaintiffs filed none. Relying on Mukisa Biscuits, the court held the objection raised a pure point of law arising from the pleadings. Applying the Supreme Court's pronouncement in Samuel Kamau Macharia on jurisdiction and the exhaustion doctrine, the court found that the plaintiffs should first have lodged a complaint with NEMA, with appeals lying to the National Environmental Tribunal, and that the ELC could exercise only appellate jurisdiction thereafter. The preliminary objection was upheld, the suit and application were struck out for want of jurisdiction, with costs to the defendant. Judgment delivered via email on 24th June, 2024 by Hon. Mbogo C.G., Judge.

Key legal issues

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01

Whether the court had jurisdiction over a suit concerning alleged defiance of NEMA directives and construction in a wildlife corridor without prior recourse to statutory environmental dispute mechanisms

Holding

The court lacked jurisdiction; the plaintiffs were obliged to first lodge a complaint with NEMA and exhaust the dispute resolution mechanisms under EMCA, and the ELC could only exercise appellate jurisdiction thereafter

Reasoning

Sections 32(a)(i) and 129 of EMCA establish a complaints committee and an appeal avenue to the National Environmental Tribunal for parties aggrieved by decisions or directives of NEMA. The plaint itself pleaded that NEMA had issued a stop letter and cancellation, which the defendant allegedly defied. The proper forum was therefore the statutory mechanism, and the ELC's jurisdiction under the Act arises only on appeal under Section 130.

02

Whether the defendant's notice of preliminary objection raised a pure point of law

Holding

Yes; the objection was sustainable on the pleadings without ascertaining facts

Reasoning

Applying Mukisa Biscuits and subsequent authorities, the court found that the jurisdictional objection arose directly from the pleadings, particularly paragraphs 6 to 10 of the plaint, which themselves pleaded NEMA's intervention, and did not require any ascertainment of facts or exercise of discretion.

p. 4

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and a court cannot expand its jurisdiction through judicial craft or innovation
  • Where a statute establishes a dispute resolution mechanism, a party must exhaust it before invoking the court, which may then exercise only appellate jurisdiction
  • A preliminary objection must raise a pure point of law capable of determination on the pleadings without ascertaining facts

Court orders

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  1. 1.The notice of preliminary objection dated 27th May, 2024 is upheld
  2. 2.The court lacks jurisdiction to hear and determine the instant application and suit
  3. 3.The suit and application are struck out with costs to the defendant

Authorities

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Legislation

  • Environment Management and Coordination Act (EMCA)Sections 125, 129(1)(2), 32(a)(i), 130, 31
  • Physical and Land Use Planning ActSection 78

Cases cited (19)

  • Kakuta Maimai Hamisi versus Peris Pesi Tobiko & 2 Others
    [2013] eKLR
  • Kibos Distillers Limited & 4 Others versus Benson Ambuti Adega & 3 Others
    [2020] eKLR
  • Speaker of National Assembly versus Karume
    [1992] KLR
  • Geoffrey Muthinja & Another versus Samuel Muguna Henry & 1756 Others
    [2015] eKLR
  • William Odhiambo Ramogi & 3 Others versus Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested parties)
    [2020] eKLR
  • National Environmental Tribunal versus Overlook Management Limited & 5 Others
    [2019] eKLR
  • Borbor & 2 Others versus National Environment Management Authority
    (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR) (28 July 2022) (Ruling)
  • Bridge Gate Holding Limited versus National Environment Management Authority & Another
    [2015] eKLR
  • Samson Chembe Vuko versus Nelson Kilumo & 2 Others
    [2016] eKLR
  • Michael Moragia Nyachae versus Baddies Kisii Limited & 2 Others
    [2016] eKLR
  • Orata International Limited versus National Environment Management Authority
    [2019] eKLR
  • Joseph Ojwang' Oundo versus National Environment Management Authority & 8 Others
    [2015] eKLR
  • International Centre for Policy and Conflict & 5 Others versus Attorney General & 5 Others
    [2013] eKLR
  • Gitei & 18 Others versus Kenya Rural Roads Authority & Another
    (ELC E008 of 2023) [2024] KEELC 3322 (KLR) (24 April 2024) (Ruling)
  • Whitehorse Investments Limited versus Nairobi City County
    [2019] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another versus Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Samuel Kamau Macharia and another v Kenya Commercial Bank and 2 Others
    Application No. 2 of 2011
Jurisdiction invoked
Jurisdiction of the Environment and Land Court under the Environment Management and Coordination Act (EMCA), Sections 32(a)(i), 125, 129 and 130; objection that the court lacked jurisdiction absent exhaustion of statutory dispute resolution mechanisms

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, "Maasai Mara Landowners Conservancy Limited & another v Losokwan Camp Limited (Land Case E010 of 2024) [2024] KEELC 4946 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4946/eng@2024-06-24

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