Tirishe & 2 others v Tata Chemicals Magadi Limited & 2 others; County Government of Kajiado & 3 others (Interested Parties) (Constitutional Petition E003 of 2021) [2025] KEELC 2991 (KLR)
The bottom line
#The Environment and Land Court ruled it can hear the River Kisamis diversion petition, rejecting an attempt to have the case thrown out.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuits threshold of a pure point of law
The objection was not a pure point of law; it was entangled with factual questions requiring evidence and therefore failed.
The court reiterated the Mukisa Biscuits definition, holding that a preliminary objection must be argued on the assumption that all facts pleaded by the other side are correct and cannot be raised where facts must be ascertained or judicial discretion exercised. The Respondent's objection, which questioned whether statutory approvals and permits were obtained and whether the project complied with licence terms, turned on factual matters requiring the calling of evidence.
Whether the court, rather than the NET or Water Tribunal, has jurisdiction over the petition
The petition is a multifaceted claim within the ELC's jurisdiction under section 3(3) EMCA; issues at paragraphs 13–15 fall within this court's jurisdiction, following the Supreme Court's Nicholus decision over the Kibos Distillers approach.
Applying the Supreme Court's guidance in Nicholus, the court held that in a multifaceted claim it should address each contested issue within its jurisdiction, remitting parts of the claim to statutory bodies while retaining what is properly before it. The court described Kibos Distillers as a departure point—the Supreme Court's judgment rejected the Court of Appeal's approach of discarding the entire claim.
Legal principles established
#- A preliminary objection must raise pure points of law and cannot succeed if it depends on facts requiring evidence.
- In multifaceted environmental claims, a court should address each issue within its jurisdiction, potentially remitting parts of the claim to statutory bodies rather than striking out the whole petition.
Court orders
#- 1.The preliminary objection by the 1st Respondent is disallowed
- 2.The petition to proceed to full hearing
- 3.Costs of the preliminary objection shall be in the cause
- Jurisdiction invoked
- Article 162(2)(b) jurisdiction of the Environment and Land Court; section 3(3) of the Environmental Management Act (EMCA) recognising ELC's original jurisdiction over environmental rights claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tirishe & 2 others v Tata Chemicals Magadi Limited & 2 others; County Government of Kajiado & 3 others (Interested Parties) (Constitutional Petition E003 of 2021) [2025] KEELC 2991 (KLR)", Case Analysis (2025). Not stated in the extract (Petition at ELC, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2991/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.