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ELCDismissedNot stated in the judgment· [2025] KEELC 605 (KLR)

Kiagi v Kanmark Limited (Land Case E092 of 2024) [2025] KEELC 605 (KLR)

Environment and Land Court
14 February 2025
LNL. L. Naikuni
5,581 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that plaintiffs can sue directly there without first going through the environment tribunal when no NEMA decision is being challenged.

What this practically means

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Executive summary

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The Defendant, Kanmark Limited, raised a preliminary objection to the Plaintiff's suit and Notice of Motion dated 15th October 2024, which sought injunctions restraining the Defendant from interfering with ongoing construction on parcel 1724/1/MN in Nyali, Mombasa, and from inciting neighbours or writing to government agencies alleging the Plaintiff obtained building approvals unlawfully. The Defendant argued that the Environment and Land Court has only appellate jurisdiction over National Environment Tribunal (NET) matters under Sections 125(1) and 130 of EMCA, and that the Plaintiff was obliged to exhaust the statutory procedures before the NET. The Plaintiff countered that the NET's jurisdiction under Section 129 of EMCA is limited to appeals from decisions of the Director-General, the Authority or its agents; no such decision was challenged here, the EIA licence was not in issue, and the reliefs sought fall squarely within the ELC's original jurisdiction under Section 13 of the Environment and Land Court Act. The court framed three issues: whether the objection met the Mukisa Biscuits threshold of a pure point of law; whether it was merited; and costs. Holding that a jurisdictional challenge is a pure point of law, the court then found that the NET lacks original jurisdiction over matters where no NEMA decision exists, and that EMCA could not afford an adequate and efficacious remedy on these facts. The preliminary objection was dismissed as baseless and unmerited. The Motion was directed to be disposed of by written submissions on a set timetable, and the Plaintiff was awarded costs to be in the cause.

Key legal issues

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01

Whether the objection qualified as a proper preliminary objection on a pure point of law

Holding

Yes - an objection to jurisdiction is a pure point of law.

Reasoning

The court reviewed the classic definition in Mukisa Biscuits and subsequent authorities, concluding that a preliminary objection must rest on a pure point of law with no facts to be ascertained. Since the Defendant's objection challenged the jurisdiction of the court, it raised matters of pure law and could properly be dealt with in limine.

p. 7
02

Whether the plaintiff was required to exhaust the NET mechanism under EMCA before filing suit

Holding

No - the NET has appellate jurisdiction only over decisions of NEMA and its organs, and no such decision was under challenge here.

Reasoning

Section 129 of EMCA confines the NET to appeals from decisions of the Director-General, the Authority, its committees or agents. The plaintiff was not aggrieved by any such decision; the EIA licence was not in contention, and the reliefs sought (injunctions against interference and incitement) could not all be granted by the NET. Special circumstances therefore justified direct filing in the ELC, which has unlimited original jurisdiction in environment and land matters.

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Costs of the preliminary objection

Holding

Costs to the plaintiff, to be in the cause.

Reasoning

Costs are discretionary and follow the event under Section 27(1) of the Civil Procedure Act. As the plaintiff succeeded in defeating the preliminary objection, the defendant as the unsuccessful party would ordinarily bear costs; the court nonetheless ordered costs to be in the cause rather than payable immediately.

Legal principles established

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  • A preliminary objection must be raised on a pure point of law and no fact should need to be ascertained
  • Where a statute provides a dispute resolution mechanism, parties must exhaust it before moving to court
  • Where no NET-appealable decision is in issue and EMCA cannot afford an adequate remedy, the ELC's original jurisdiction is properly invoked

Court orders

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  1. 1.The Preliminary objection dated 14th November, 2024 be and is found to lack merit thus it is hereby dismissed
  2. 2.The Notice of Motion application dated 15th October, 2024 to be disposed of by way of written submissions
  3. 3.The Defendant/Respondent granted 7 days leave to file and serve replies to the application
  4. 4.The Plaintiff/Applicant granted 14 days leave to file and serve further affidavit on issues of law raised from the responses & submissions, if need arises thereof
  5. 5.Thereafter upon service, the Defendant/Respondent be granted 14 days leave to file and serve Submissions
  6. 6.The Honourable Court to deliver its ruling on 9th April, 2025
  7. 7.The Plaintiff shall have the costs to be in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "Kiagi v Kanmark Limited (Land Case E092 of 2024) [2025] KEELC 605 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/605/eng@2025-02-14

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