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ELCPartially AllowedPetition dated 18/10/2024 (Malindi ELC; number not stated in judgment)· [2025] KEELC 253 (KLR)

Valentini v Farid & 3 others (Environment & Land Petition E005 of 2024) [2025] KEELC 253 (KLR)

Environment and Land Court of Kenya
30 January 2025
10,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling on a notice of preliminary objection dated 30/10/2024 in a petition dated 18/10/2024 filed at the ELC Malindi. The petitioner, whose plot neighbours parcel no 9643, alleged that the 1st respondent was constructing a high-rise residential apartment block without development permission, NCA registration, Physical Planning approvals, change of user or an EIA licence, in a low-density residential zone, violating her rights under Articles 31, 42, 69 and 70 of the Constitution. She sought declarations, conservatory orders halting construction, and restoration orders. The 1st respondent objected that the court lacked jurisdiction because EMCA and the EIA Regulations channel EIA licence disputes to NEMA and the National Environment Tribunal, and PLUPA channels planning disputes to the Liaison Committee; the 2nd respondent filed a replying affidavit but no submissions; the 3rd and 4th respondents supported the objection. The court held that although the respondents had concealed from the petitioner the fact that licences and approvals had since been issued (including an EIA licence issued on 11/3/2024 and an NCA certificate commencing 26/11/2024), that concealment did not defeat the doctrine of exhaustion. Following the Court of Appeal in Abidha Nicholus and Kibos Distillers, the court held that licence-related issues belong before NEMA/NET. However, applying the Supreme Court's middle path, it declined to strike out the whole multifaceted petition; the constitutional issues were saved. The court stayed the petition pending any NEMA/NET proceedings, extended the interim halt on construction, awarded the costs of the objection to the petitioner against the respondents, and directed a mention on 30/4/2025.

Key legal issues

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01

Whether the doctrine of exhaustion applies to challenges concerning an EIA licence issued by NEMA

Holding

Yes; disputes on the propriety of issuance or validity of the EIA licence belong before NEMA/NET, with the ELC as appellate forum

Reasoning

The court followed the Court of Appeal decisions in Abidha Nicholus and Kibos Distillers, holding that EMCA vests NET with first-instance jurisdiction over NEMA licence decisions and the ELC only appellate jurisdiction under Section 130 EMCA. The prescribed statutory procedure must be strictly followed per Karume and Crystalline Salt. The petition's licence-related claims were therefore stayed rather than determined.

p. 12
02

Whether the respondents' non-disclosure of the licences disentitles them from invoking exhaustion

Holding

No; the concealment misled the petitioner but does not affect the applicability of the doctrine

Reasoning

The petitioner enquired of the 2nd and 3rd respondents and received silence or negative answers, yet construction continued. The court criticised this reticence but reasoned that dismissing the objection on that basis would create absurdity and protraction, since even after amendment the licence issues would still belong before NET. The reality of the licences overshadows the concealment.

p. 11
03

Whether the multifaceted nature of the petition saves it from being wholly struck out

Holding

The petition was not wholly struck out; the constitutional issues were saved for this court after the NET/NEMA proceedings

Reasoning

Applying the middle path suggested by the Supreme Court in Kibos and adopted with qualifications in Abidha, and given the liberal locus standi under Articles 42, 69 and 70, the court held that a petition alleging constitutional violations should not be struck out in limine where a scintilla of constitutional violation exists untied to matters subject to exhaustion. The petition was stayed and the constitutional issues reserved.

p. 19

Legal principles established

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  • Where a clear procedure for redress is prescribed by an Act of Parliament, that procedure should be strictly followed (exhaustion doctrine)
  • Locus standi in environmental litigation under Article 70(1) requires only an allegation of violation or threat of the right to a clean and healthy environment, without proof of loss or injury
  • A court facing a multifaceted petition should not strike out the entire petition where a scintilla of constitutional violation is pleaded; it should sever and save the matters properly before it
  • Non-disclosure by public bodies of the existence of licences, though it misled a litigant into filing a petition, does not defeat the doctrine of exhaustion

Court orders

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  1. 1.By reason of the doctrine of exhaustion the petition is stayed pending ventilation of any action by the petitioner against the 1st and 3rd respondents before NEMA and/or the National Environment Tribunal in connection with EIA Licence No NEMA/EIA/PSL/31281 issued on 11/3/2024 or any related issues
  2. 2.The interim orders issued on 5/11/2024 halting all works on the project are extended until the date of determination of the proceedings before NEMA/NET
  3. 3.The costs of the preliminary objection shall be borne by the respondents
  4. 4.The petition to be mentioned on 30/4/2025 for a report on the outcome of the proceedings before NEMA/NET and for further directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 23(1)
  • Constitution of Kenya, 2010Article 31
  • Constitution of Kenya, 2010Article 35(1)
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 69
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 169(2)(c)
  • Environmental Management and Co-ordination Act (Cap 387)Sections 3, 3(5), 58, 67, 125, 129(1)(e), 130
  • Physical and Land Use Planning Act, 2019Sections 57, 58, 59, 61(3), 61(4), 64(1)
  • Environment and Land Court ActSection 13
  • National Construction Authority Act, No 41 of 2011Section 5
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 17, 46(2)
  • National Environment Tribunal Procedure Rules, 2003Rule 4(2)
  • National Construction Authority Regulations, 2014Regulation 17
  • Access to Information Actnot specified
  • Fair Administrative Action Act, 2015Sections 9(2),(3)

Cases cited (27)

  • Kiriro Wa Ngugi & 19 others v AG & 2 others
    2020 eKLR
  • Francis Gitau Parsimei & 2 others v National Alliance Party & 4 others
    2012 eKLR
  • Benson Karomo & Hubert Seifert (Suing as Chairman and Secretary of the New Nyali Residents Association v Paul Onyango Kiagi & County Government of Mombasa
    2021 KELEC 447
  • Kibos Distillers Ltd & 4 Others v Benson Ambuti Andega & 3 Others
    2020 KECA 875 eKLR
  • Owners of Motor Vessel Lillian S v Caltex Oil K Ltd
    1989 eKLR
  • Samuel Kamau Macharia & Anor v Kenya Commercial Bank & 2 others
    Application No 2 of 2011
  • Bernard Murage v Fine Serve Africa Ltd & 3 others
    2015 eKLR
  • Speaker of the National Assembly v Karume
    1992 KECA; [1992] KLR 21
  • Crystalline Salt Limited v Kenya Revenue Authority
    2019 eKLR
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors
    1969 EA 696
  • Abidha Nicholas v Attorney General & Others
    2023 eKLR
  • Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & others
    [2017] KEHC 4663 (KLR)
  • Titan Ltd v Qiye Co Ltd & Anor
    ELC 524 of 2013; KEELC 20354 KLR
  • Millenium Gardens Management Ltd v Metricom Home Nbi Co Ltd, Nairobi City County Govt & 2 others
    ELC Petition E121 of 2023; 2024 KEELC 4016 KLR
  • Odida (Suing as Administratrix of the Estate of Ododa Majiwa) v County Govt of Migori
    ELC 12 of 2023 [2023] KEELC 22532
  • Auko v Republic
    2024 KECA KLR
  • Tom Brown Limited & another v CEC Member in Charge of Planning & 2 others
    ELC E053 of 2022; 2023 KEELC 17853 KLR
  • Gatere & Another v Kenya Electricity Transmission Co Ltd
    ELC E039 of 2023; 2024 KEELC 4560 (KLR)
  • Alfred Njau and Others v City Council of Nairobi
    (1982) KAR 229
  • Africa Muslims Agency Trust Registered Trustees v Khamisi R. Nzili, Headmaster Ama Primary School, Kilifi
    Malindi ELC Case No 092 Of 2024
  • Mumo Matemu v Trusted Society of Human Rights Alliance & Others
    [2013] eKLR
  • Registered Trustees of Jamie Masjid Ahl-Sunnait-Wal-Jamait Nairobi v Nairobi City County & 2 others
    [2015] eKLR
  • Maathai v Kenya Times Media Trust Ltd
    [1989] eKLR
  • Kariuki v County Council of Kiambu and another
    [1995-1998] 1EA 90
  • Gourriet v H. M. Attorney General & Union of Post Office Engineering Unions
    [1977] 1 All ER 696
  • Attorney General of Gambia v Njie
    [1961] AC 617
  • Ken Kasinga v Daniel Kiplagat Kirui & 5 others
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act and Articles 23(1) and 70

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Valentini v Farid & 3 others (Environment & Land Petition E005 of 2024) [2025] KEELC 253 (KLR)", Case Analysis (2025). Petition dated 18/10/2024 (Malindi ELC; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/253/eng@2025-01-30

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