Mueni & 2 others (Suing on their Own Behalf and on Behalf of Members of "Boyani Community") v Third Engineering Bureau of China City Group Limited & 3 others (Environment & Land Petition E001 of 2024) [2025] KEELC 4000 (KLR)
The bottom line
#The Environment and Land Court in Malindi confirmed it can hear a community's constitutional challenge to quarry operations, dismissing arguments that other laws blocked the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the National Environment Tribunal has exclusive jurisdiction under Section 129 of EMCA, ousting the ELC's jurisdiction over the petition
The ELC has jurisdiction; the petition is a constitutional petition asserting violations of rights under Articles 26, 27, 28, 40, 42, 43 and 45, for which the Tribunal cannot grant the remedies sought (declarations and compensation under Article 23(3)).
The court reviewed the reliefs sought and found the NET cannot fully address them because the claims concern constitutional rights violations arising from the 1st Respondent's operations, with remedies of declarations and compensation reserved to courts under Article 23(3). Relying on the Supreme Court's guidance in Nicholus, a multifaceted petition with a licensing element is not thereby barred from the ELC.
Whether Section 67(b) of the Kenya Roads Act bars the claim for failing to file within 12 months (or six months for continuing injury)
The claim is not statute-barred because the complained-of activities are ongoing and constitute continuing wrongs (continuous trespass), so the limitation period has not commenced or ceased.
The Petitioners argued the activities complained of are ongoing, making Section 67(b) inapplicable since the limitation period for a continuing injury runs from cessation. The court accepted that the grievances are still in progress and constitute continuing wrongs, accruing anew daily, so the petition was duly filed in accordance with Section 67(b).
Costs of the preliminary objections
The 1st and 3rd Respondents, having failed, bear the costs of the preliminary objections.
Having found the court seized of jurisdiction and the POs without merit, the court dismissed both POs and awarded costs, consistent with the principle that costs follow the event.
Legal principles established
#- A preliminary objection must raise a pure point of law, on the assumption that all pleaded facts are correct and with no facts needing ascertainment.
- Jurisdiction is foundational; a court must down tools the moment it finds it lacks jurisdiction.
- Section 129(3) of EMCA cannot be used to transfer specific powers given to the courts under the Constitution (Article 23(3) remedies) to the National Environment Tribunal.
- Where a claim is multifaceted and asserts constitutional violations, the existence of a licensing element within NET's remit does not oust the ELC's jurisdiction.
- Section 67(b) of the Kenya Roads Act does not defeat a claim based on continuous/continuing trespass, as the cause of action accrues anew daily.
Court orders
#- 1.The preliminary objections dated 11 November 2024 and 14 February 2025 are dismissed
- 2.The preliminary objections are dismissed with costs
- Jurisdiction invoked
- Article 22(1) as read with Article 23(1) of the Constitution of Kenya 2010, and Articles 162(2)(b) and Section 13(1) and (2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mueni & 2 others (Suing on their Own Behalf and on Behalf of Members of "Boyani Community") v Third Engineering Bureau of China City Group Limited & 3 others (Environment & Land Petition E001 of 2024) [2025] KEELC 4000 (KLR)", Case Analysis (2025). Petition dated 28th March 2024 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4000/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.