Regional Centre for Business Ethics & Research v Vallem Construction Limited & 2 others; National Environment Management Authority & another (Interested Parties) (Environment and Land Petition E002 of 2025) [2025] KEELC 7181 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped Kilimambogo quarrying and ruled communities can bring constitutional environmental petitions directly to court without first going to a tribunal.
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 Preliminary Objection raises a pure point of law
- 2.Whether the Environment and Land Court is ousted of jurisdiction by Sections 129 and 130 of EMCA and Regulation 46(1)(f) of the Environmental (Impact Assessment and Audit) Regulations, 2003 on account of the doctrine of exhaustion
- 3.Whether the Notice of Motion dated 31/01/2025 meets the threshold for grant of a temporary injunction
Key legal issues
#Jurisdiction of the ELC vis-à-vis the National Environmental Tribunal under EMCA
The objection was dismissed. Because the Petition raises constitutional issues beyond the EIA licence, the NET cannot adjudicate them and the ELC has jurisdiction.
The court traced the jurisdiction of the ELC under Article 162(2)(b), Section 13 of the ELC Act, Section 3(3) EMCA and Article 70 of the Constitution. Relying on the Supreme Court decision in Nicholus v Attorney General, it held the NET lacks power to determine constitutional violations. A distinction was drawn between determining rights violations (which tribunals may do) and interpreting the Constitution, which is a preserve of the High Court and courts of equal status.
Whether a temporary injunction should issue pending determination of the Petition
A temporary injunction issued, the court finding a prima facie case with probability of success and potential irreparable harm.
Applying Giella v Cassman Brown, the court found the averments on the absence of public participation and of an EIA report elaborate and uncontroverted, establishing a prima facie case. The risk that quarrying would continue and render the suit nugatory demonstrated irreparable harm; the balance of convenience favoured preservation of the status quo pending the Petition.
Legal principles established
#- Tribunals cannot interpret the Constitution; only the High Court and courts of equal status can, hence where a petition raises constitutional issues the ELC has primary jurisdiction notwithstanding the NET route under EMCA.
- A preliminary objection on jurisdiction is a pure point of law properly raised.
Court orders
#- 1.A declaration that this Court has jurisdiction to hear and determine the Petition
- 2.Dismissal of the Notice of Preliminary Objection dated 5/02/2025 with costs
- 3.A temporary injunction against the 1st and 2nd Respondents, their assignees, transferees, representatives and/or workers/agents, restricting them from undertaking quarrying activities, excavating, cutting stones, blasting, crushing ballast or in any manner operating the quarries located at Kilimambogo, pending the hearing and determination of the Petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) and Article 70 of the Constitution; Section 13 of the Environment and Land Court Act; Section 3(3) of the Environmental Management and Co-ordination Act
Relief refused
#A declaration that issuance of quarrying permits without public participation and without a published EIA report is unlawful and a nullity
Granting the declaration at the interlocutory stage would amount to issuing final orders without examining the evidence to be presented by both parties
Costs
The Notice of Preliminary Objection dated 5/02/2025 was dismissed with costs to the Petitioner; the costs of the interlocutory application were not expressly addressed in the disposal orders.
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.
This Court has the jurisdiction to hear and determine the Petition.
The Notice of Preliminary Objection dated 5/02/2025 is dismissed with costs.
A temporary injunction is hereby issued against the 1st and 2nd Respondents, through themselves, assignees, transferees, representatives and or workers/agents, restricting them from undertaking quarrying activities, excavating, cutting stones, blasting, crushing ballast or in any manner operating the quarries located at Kilimambogo, pending the hearing and determination of the Petition.
the Tribunal and the Authority established under the Act do not possess the jurisdiction to interpret the Constitution but the Environment and Land Court has
the Applicants have established a prima facie case with a probability of success
Issues in the judgment
#The Petition and case number are not stated anywhere in the ruling; the coram lists 'Petitioner – Absent' without a named petitioner and the 1st/2nd Respondents are never named on the record reproduced.
Contradiction on exhaustive remedy: the ruling cites Section 9(2) and (3) of the Fair Administrative Action Act as requiring exhaustion of alternative mechanisms, yet dismisses the exhaustion-based objection without addressing that statute.
Shifting voice suggests composite drafting, but there is only one judgment by one judge.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Regional Centre for Business Ethics & Research v Vallem Construction Limited & 2 others; National Environment Management Authority & another (Interested Parties) (Environment and Land Petition E002 of 2025) [2025] KEELC 7181 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7181/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.