East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 3 others; Law Society of Kenya & 5 others (Interested Parties) (Environment and Planning Petition E001 of 2024) [2025] KEELC 1259 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear constitutional environmental claims challenging a road project, even when an appeal to the environment tribunal exists.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of preliminary objection qualifies as a proper preliminary objection on a point of law
The objection meets the Mukisa Biscuit test as it raises pure points of law (jurisdiction/exhaustion) determinable without ascertaining facts from elsewhere.
Applying the classic definition by Law JA in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, the court found the objection concerns jurisdiction and exhaustion of statutory remedies, matters of law that can dispose of the suit without recourse to evidence. It therefore proceeded to determine the objection as a proper preliminary objection.
Whether the ELC has jurisdiction over the petition notwithstanding the alternative remedy of appeal to the NET under Sections 129-130 of EMCA
The ELC has jurisdiction. The petition alleges violations/threatened violations of Articles 10, 11, 42, 47 and 69 of the Constitution, which the NET has no mandate to adjudicate; jurisdiction over constitutional environmental claims vests in the ELC.
Relying on the Supreme Court's decision in Nicholus v Attorney General and the Court of Appeal's decision in the Owino Uhuru case, the court held that NET's jurisdiction under EMCA does not extend to alleged constitutional violations. The right of access to court for constitutional violations should not be impeded. The petition on its face alleges breaches of constitutional rights including the right to a clean and healthy environment, and those issues can only be adjudicated by the ELC.
Whether the petition is merely a camouflaged challenge to the EIA licence, properly before the NET
No. Reading the petition, the petitioners allege violations or threatened violations of the Constitution beyond the EIA licence question.
Counsel for the 1st respondent argued the petition was camouflaged as a constitutional claim while really challenging the ESIA Report and EIA licence. The court considered this contention but concluded that, apart from the EIA licence issue, the petition raises various constitutional issues including rights to a clean and healthy environment, depletion of tree cover, climate change and threats to biodiversity.
Legal principles established
#- Sections 129 and 130 of the EMCA do not vest the NET with jurisdiction to entertain claims alleging violation or threatened violation of the Constitution; jurisdiction over such constitutional environmental claims vests in the ELC.
- The availability of an alternative remedy does not necessarily bar a party from seeking constitutional relief; where the alternative remedy is inadequate, the court may grant constitutional relief.
- The establishment of alternative dispute resolution mechanisms by Parliament does not divest courts of the original jurisdiction donated to them by the Constitution.
Court orders
#- 1.The preliminary objection dated 6th December 2024 is dismissed
- 2.Costs of the preliminary objection to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13(1) of the Environment and Land Court Act and Section 3(3) of the EMCA; Article 70(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kigochi v County Lands Registrar Nakuru County & 6 others (Environment and Land Petition E005 of 2025) [2026] KEELC 2246 (KLR)[2026] KEELC 2246 (KLR)23 Apr 2026
- Northern Block Residents Limited v Air View Properties Limited & 2 others (Environment and Planning Petition E042 of 2025) [2026] KEELC 1343 (KLR)[2026] KEELC 1343 (KLR)4 Feb 2026
- Kenya Power & Lighting Co. PLC v County Government of Nairobi City & another (Environment and Planning Petition E009 of 2025 & Environment and Land Petition E013 of 2025 (Consolidated)) [2025] KEELC 4390 (KLR)[2025] KEELC 4390 (KLR)12 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 3 others; Law Society of Kenya & 5 others (Interested Parties) (Environment and Planning Petition E001 of 2024) [2025] KEELC 1259 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1259/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.