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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 7181 (KLR)

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)

Environment and Land Court
15 October 2025
5,124 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Environment and Land Court ruling at Thika (Mogeni J) determined a Notice of Motion dated 31/01/2025 seeking temporary injunctions and declaratory relief against quarrying operations at Kilimambogo, and a Preliminary Objection dated 5/02/2025 by the 1st Respondent. The Petitioner alleged that the 3rd Respondent issued mining permits to the 1st and 2nd Respondents without public participation and without a published Environmental Impact Assessment, resulting in environmental pollution, noise and health hazards to Kilimambogo residents. The 1st Respondent objected that the Court's jurisdiction was ousted by Section 129(1) of EMCA read with Regulation 46(1)(f) of the Environmental (Impact Assessment and Audit) Regulations, 2003, and Section 78(b) of the Physical and Land Use Planning Act, 2019, because the Petitioners had not first gone to the National Environmental Tribunal. The Court held the objection raised a pure point of law but was misplaced: relying on the Supreme Court's decision in Nicholus v Attorney General, it found that while the Tribunal may determine whether rights were violated, only the High Court and courts of equal status may interpret the Constitution. Since the Petition raised constitutional issues going beyond the EIA licence, the ELC had primary jurisdiction. On the interlocutory application, applying Giella v Cassman Brown, the Court found a prima facie case with probability of success on uncontroverted averments, and potential irreparable harm. It dismissed the objection with costs, confirmed its jurisdiction, and issued a temporary injunction restraining the 1st and 2nd Respondents from quarrying at Kilimambogo pending the Petition, while declining to issue the declaratory order sought at the interlocutory stage.

Key legal issues

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01

Jurisdiction of the ELC vis-à-vis the National Environmental Tribunal under EMCA

Holding

The objection was dismissed. Because the Petition raises constitutional issues beyond the EIA licence, the NET cannot adjudicate them and the ELC has jurisdiction.

Reasoning

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.

p. 8
02

Whether a temporary injunction should issue pending determination of the Petition

Holding

A temporary injunction issued, the court finding a prima facie case with probability of success and potential irreparable harm.

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.A declaration that this Court has jurisdiction to hear and determine the Petition
  2. 2.Dismissal of the Notice of Preliminary Objection dated 5/02/2025 with costs
  3. 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
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

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.