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ELCDismissedNot stated in extract· [2025] KEELC 646 (KLR)

Obuli & 2 others v National Environment Management Authority & 3 others (Environment & Land Petition E018 of 2024) [2025] KEELC 646 (KLR)

Environment and Land Court
20 February 2025
1,839 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled it can hear environmental cases even when an energy tribunal exists, dismissing the objection and awarding costs.

What this practically means

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Executive summary

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The 3rd Respondent raised a preliminary objection dated 11th October 2024 arguing that the Environment and Land Court lacked jurisdiction over the Petition because it concerned wayleaves and easements relating to the distribution and supply of electrical energy, matters reserved to the Energy and Petroleum Tribunal under sections 36 and 42 of the Energy Act, 2019, and that the Petitioners had failed to exhaust the three-tier dispute resolution mechanism (EPRA, then the Tribunal, then the High Court) as required by Article 159(2)(c) of the Constitution and sections 9(2) and (3) of the Fair Administrative Action Act, 2015. The 3rd Respondent relied on the Court of Appeal decision in Abidha Nicholus, Owners of the Motor Vessel 'Lillian S', Mutanga Tea and related authorities. The Petitioners, invoking Articles 22(c), 39, 42, 69, 70 and 72 and section 13(3) of the Environment and Land Court Act, argued that the predominant purpose of the case was environmental protection and enforcement of the right to a clean and healthy environment, within the ELC's jurisdiction, and that the PO was not a pure point of law (Mukisa Biscuits). The court noted that the Abidha Nicholus decision relied on had been reversed by the Supreme Court, which endorsed a nuanced, case-by-case approach to exhaustion. Finding it unclear who dumped the waste and whose mandate cleanup was among the four Respondents, the court held the alternative remedy would be inadequate due to blame-shifting, and that the PO required engagement with facts pleaded, disqualifying it as a pure point of law. The ELC has primary jurisdiction over land and environment disputes. The PO was dismissed with costs on 20th February 2025.

Key legal issues

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01

Jurisdiction and the exhaustion doctrine in multifaceted environmental/energy disputes

Holding

The preliminary objection failed because the alternative remedy under the Energy Act would not be adequate where responsibility for the dumping of waste among several agencies is unclear, and because the Petition raises allegations of constitutional violations of the right to a clean and healthy environment.

Reasoning

The court applied the Supreme Court's nuanced approach in the stated case (Bia Tosha line): alternative remedies do not necessarily bar constitutional relief where they are inadequate. It found that since it is not clear who dumped the waste and whose mandate it is to clean it up among the four Respondents, resort to the Tribunal would cause blame-shifting, making exhaustion inadequate. The court also noted the ELC's primary jurisdiction over environment matters.

p. 4
02

Whether the preliminary objection was a pure point of law

Holding

The PO was not a pure point of law as it required the court to engage with facts pleaded in the Petition.

Reasoning

Applying the Mukisa Biscuits principle asserted by the Petitioners, the court found the PO required sourcing evidence from the facts pleaded in support of the Petition, which disqualifies it as a pure point of law. It nonetheless proceeded to consider the merits of the jurisdictional and exhaustion objections, rejecting both.

p. 4

Legal principles established

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  • The availability of an alternative remedy does not necessarily bar a litigant from seeking constitutional relief; where the alternative remedy is inadequate, the court is not restrained from granting constitutional relief.
  • A preliminary objection that requires the court to source evidence from facts pleaded is not a pure point of law.
  • The Environment and Land Court has primary jurisdiction over disputes involving land and environment issues, notwithstanding the existence of the Energy and Petroleum Tribunal.

Court orders

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  1. 1.The preliminary objection dated 11th October 2024 brought by the 3rd Respondent is dismissed with costs

Authorities

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Legislation

  • Energy Act, 2019sections 3(1), 10, 11(e), (f), (i), (k) & (l), 23, 24, 36, 40, 42, 224(2)(e)
  • Energy (Complaints and Disputes Resolution) Regulations, 2012Regulations 2, 4, 7 and 9
  • Constitution of Kenya, 2010Articles 22(c), 39, 42, 69, 70, 72, 159(2)(c), 169(1)(d) and (2)
  • Fair Administrative Action Act, 2015sections 9(2) and (3)
  • Environment and Land Court ActSection 13(3)

Cases cited (7)

  • Abidha Nicholus vs. Attorney General & 7 others, National Environmental Complaints Committee (NEEC) & 5 others (Interested Parties)
    Civil Appeal No. 42 of 2021 (Kisumu) (unreported)
  • Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Republic v. Energy Regulatory Commission & 2 Others
    [2018] eKLR
  • Mutanga Tea & Co. Ltd v. Shikara Ltd & Another
    [2015] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors
    (1969) EA 696
  • Okoiti v Cabinet Secretary Industry Trade and Cooperatives & 2 others
    (2022) KEELC 3728
  • Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others
    (Pet.No.15 of 2020) [2023] KESC 14(KLR) (17 February 2023)
Jurisdiction invoked
Articles 22(c), 39, 42, 69, 70 and 72 of the Constitution of Kenya, 2010; Section 13(3) of the Environment and Land Court Act (environmental rights enforcement jurisdiction of the ELC)

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, "Obuli & 2 others v National Environment Management Authority & 3 others (Environment & Land Petition E018 of 2024) [2025] KEELC 646 (KLR)", Case Analysis (2025). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/646/eng@2025-02-20

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