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ELCDismissedNot stated in extract· [2024] KEELC 5809 (KLR)

Kassam & 12 others v JW Archplans Limited & 16 others (Environment & Land Petition E007 of 2024) [2024] KEELC 5809 (KLR)

Environment and Land Court
31 July 2024
OAO. A. Angote
3,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 4th Respondent raised a preliminary objection dated 22nd April 2024 seeking dismissal of the Petitioners' Petition and application dated 28th March 2024, which challenged development of apartments on the suit properties and alleged violations of constitutional rights, including the right to a clean and healthy environment. The objection advanced three jurisdictional grounds: that under Sections 61(3)-(4) of the Physical and Land Use Planning Act, Sections 129-130 of EMCA and Sections 121 and 124 of the Water Act, the Petitioners should first have appealed to the County Physical and Land Use Planning Liaison Committee, the National Environmental Tribunal and the Water Tribunal; that the suit offended the doctrine of exhaustion; and that the Petition was fatally defective because the 1st Petitioner swore affidavits for the other Petitioners without written authority as required by Order 1 Rule 13 and Order 4 Rule 1 of the Civil Procedure Rules. The objection was supported by the 9th-11th and 14th Respondents. The Petitioners contended that the heart of the Petition was enforcement of fundamental rights under Articles 26, 28, 35, 42, 43(1), 47(1), 50, 69(1), 70, 73 and 75(1), a matter within the ELC's exclusive jurisdiction per the Supreme Court's Nicholus decision, and that written consent had been furnished. Angote J held the Petition was multifaceted, raising both constitutional and non-constitutional issues; since it primarily sought enforcement of rights, the doctrine of exhaustion did not bar it, as tribunals cannot determine constitutional violations. On the affidavit issue, the Court applied the Mutunga Rules, holding a supporting affidavit optional and no prejudice caused, with written authority subsequently filed. The preliminary objection was dismissed with costs.

Key legal issues

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01

Jurisdiction over a multifaceted petition raising both statutory approval challenges and constitutional rights violations

Holding

The Petition was properly before the ELC notwithstanding that some claims on approvals could have gone to statutory tribunals, because the heart of the Petition is enforcement of fundamental rights.

Reasoning

The Court found the Petition raised both constitutional and non-constitutional issues. Relying on the Supreme Court's Nicholus decision, enforcement of rights under Articles 42 and 70 lies with the ELC under Articles 22, 23(3) and 162(2)(b); tribunals cannot determine constitutional violations. A multifaceted claim is not barred by exhaustion where rights enforcement predominates.

p. 6
02

Whether the Petition was fatally defective for lack of written authority for the 1st Petitioner to swear affidavits

Holding

The objection failed. A petition is governed by the Mutunga Rules, under which a supporting affidavit is optional, and no prejudice was occasioned; written authority was in any event annexed in the Further Affidavit.

Reasoning

The Court held that petitions are governed by the Mutunga Rules, whose overriding objective is access to justice. Rule 11(1) uses 'may', showing a supporting affidavit is not critical; non-conformity should not render the Petition defective. Written authority was subsequently filed, and Respondents suffered no prejudice.

p. 7

Legal principles established

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  • Where a suit primarily seeks to enforce fundamental rights and freedoms and the constitutional violations are not mere bootstraps, it is not barred by the doctrine of exhaustion.
  • In a multifaceted claim, a court must address each issue within its jurisdiction, remitting parts of the claim to the relevant statutory body while retaining what is properly before it.
  • The ELC, not the NET, EPRA or EPT, has jurisdiction to determine alleged constitutional violations relating to the environment.

Court orders

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  1. 1.The 4th Respondent's Preliminary Objection dated 22nd April 2024 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioners

Authorities

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Legislation

  • Physical and Land Use Planning ActSections 61(3) and 61(4)
  • Environmental Management and Coordination ActSections 129(1) and 130(1)
  • Water ActSections 121 and 124
  • Civil Procedure RulesOrder 1 Rule 13(1) and 13(2); Order 4 Rule 1(2) and (3)
  • Constitution of KenyaArticles 22(1), 23(3), 26, 28, 35, 42, 43(1)(b), 47(1), 50, 69(1), 70, 73, 75(1), 162, 165(3), 232
  • Environment and Land Court ActSection 13
  • Environment and Land ActSection 4(1)
  • Mutunga Rules (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules)Rules 3(2) and 11(1)

Cases cited (13)

  • Republic v National Environment Management Authority Ex parte Sound Equipment Ltd
    [2011] eKLR
  • Issa Ahmed & 15 others v Mohamed Al-Sawae
    [2021] eKLR
  • Kenneth Ngure Mwaura & another v Rubis Energy Kenya & 2 others
    [2021] eKLR
  • Symon Wangombe Gathua & 6 other v Attorney General & 6 others
    [2020] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
  • Speaker of the National Assembly v Karume
    (Civil Application 92 of 1992) [1992] KECA 42 (KLR)
  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • Andrew Ireri Njeru – Embu Nyangi Ndiiri Proposed Society Chairman & others v Daniel Ng'ang'a Kangi & another
    [2015] eKLR
  • Research International East Africa Ltd v Julius Arisi & 213 others
    [2007] eKLR
  • The Centre for Human Rights and Democracy and 2 others v The Judges and Magistrates Vetting Board and 2 others
    [2012] eKLR
  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    (Petition E007 of 2023) [2023] KESC 113 (KLR)
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Articles 162(2)(b) and 165 of the Constitution read with Section 13 of the Environment and Land Court Act and Section 4(1) of the Environment and Land Act

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, "Kassam & 12 others v JW Archplans Limited & 16 others (Environment & Land Petition E007 of 2024) [2024] KEELC 5809 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5809/eng@2024-07-31

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