JE & 72 others v Tullow Kenya BV & 2 others; National Environment Management Authority & another (Interested Parties); Kenya Legal and Ethical Issues Network on Hiv & Aids (KELIN) & another (Amicus Curiae) (Environment and Land Constitutional Petition E001 of 2024) [2025] KEELC 5917 (KLR)
The bottom line
#The Environment and Land Court in Kitale ruled that the Turkana community's oil pollution case against Tullow will proceed before a single judge, not an expanded bench.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the amended petition raises substantial questions of law warranting certification and empanelment of an uneven bench under Article 165(3) of the Constitution
Key legal issues
#Whether the petition qualifies for certification under Article 165(3) of the Constitution
It does not; the parties agree on the applicable law and no contested substantial questions of law of general public importance arise
The court surveyed the Supreme Court's principles in Hermanus Phillipus Steyn and their adoption by the Court of Appeal in Okiya Omtata Okoiti. It held that certification must be grounded in the pleadings, that parties set the agenda in an adversarial system, and that novelty, complexity or difficulty alone is insufficient. Despite the breadth of the reliefs sought against Tullow Kenya B.V., NEMA and the state respondents, the parties themselves agreed the matter could proceed before a single judge, and the court found no constitutional or statutory conflict warranting empanelment. Directions on hearing were ordered on a priority basis.
Legal principles established
#- Certification of a matter as raising a substantial question of law is an exercise of judicial discretion that must be exercised judiciously, on a sound reason, and derived from the pleadings
- Novelty, complexity or difficulty of a case alone does not qualify a matter as raising substantial questions of law; a holistic approach is required
Court orders
#- 1.Finding that the matter does not satisfy the constitutional and legal standards for the empanelment of a bench
- 2.Parties directed to take directions on the mode and manner of the hearing of the petition on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(3) of the Constitution read with Section 21 of the Environment and Land Court Act
Relief refused
#Certification of the petition as raising substantial questions of law and empanelment of a bench
The petition does not raise contested, novel, weighty, complex and substantial questions of law of general public importance requiring an expanded bench
Costs
No costs order made in this ruling
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot, I find that the matter does not satisfy the constitutional and legal standards for the empanelment of a bench as articulated by the Court of Appeal in Okiya Omtatah Okoiti & Another -vs- Ann Waiguru-Cabinet Secretary, Devolution and Planning & Others [2017] eKLR.
Parties are directed to take directions on the mode and manner of the hearing of the petition on a priority basis.
The decision to certify a matter as raising substantial questions of law is an exercise of judicial discretion.
In an adversarial system, it is the parties who set the agenda for the trial and determination. The court has no room for any other business to travel outside the pleadings.
Issues in the judgment
#The judgment is a ruling on certification only, but case details (case number, full party names) must be inferred from the body text as they are not stated on a caption page in the extract provided
The petition record refers to both a '1st respondent' and a '3rd respondent' in places while the narrative elsewhere only describes the 1st, 2nd and 3rd respondents without a separate listing of the 3rd respondent's identity
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JE & 72 others v Tullow Kenya BV & 2 others; National Environment Management Authority & another (Interested Parties); Kenya Legal and Ethical Issues Network on Hiv & Aids (KELIN) & another (Amicus Curiae) (Environment and Land Constitutional Petition E001 of 2024) [2025] KEELC 5917 (KLR)", Case Analysis (2025). Petition No. E007 of 2024 (Constitutional Petition, Kitale ELC) - amended petition dated 29/10/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5917/eng@2025-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.