Karungu & another v Taifa Gas Investment Sez Limited; National Environment Management Authority (Interested Party) (Environment and Land Petition E006 of 2025) [2025] KEELC 7753 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a community challenge to a Mombasa LPG terminal because the dispute had already been decided and the wrong forum was used.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata having regard to NET Appeal Nos. 37, 41 & 46 of 2022
The petition is res judicata; the petitioners, as community members, litigate under the same title as the NET appellants who challenged the same EIA Licence
The court found the issues (challenge to the same EIA Licence No. NEMA/EIA/21998 for the same LPG terminal on the same property) were identical to those determined by NET on 31st January 2024. Though not named parties, the petitioners claim through the community interests litigated by the NET appellants, engaging Explanation 6 to section 7 of the Civil Procedure Act, so they are bound as privies.
Whether the petition contravened the doctrine of exhaustion
Yes - the petition was filed prematurely; NET is the right forum, and this court could only be approached on appeal under section 130 of EMCA
NET had jurisdiction under section 129(1) of EMCA over challenges to the EIA Licence. The petitioners did not apply for exemption under section 9(4) of the Fair Administrative Action Act nor demonstrate exceptional circumstances. Their proper course was an appeal from the NET decision, not a fresh constitutional petition invoking original jurisdiction.
Whether the claim was genuinely a constitutional rights petition
No - the petition was in substance a challenge to the EIA Licence, not an enforcement of constitutional rights
The court found the claim primarily questioned the process and status of the project approvals rather than alleging infringement of constitutional rights, and the petitioners filed no counter-evidence to the respondent's account of the licensing process, leaving the court no basis to fault it.
Legal principles established
#- A preliminary objection should be raised on a pure point of law and only upheld where there is no dispute on the facts
- Res judicata binds not only named parties but also persons claiming under the same title or interest, including community representatives
- Where a statutory appellate forum exists, its appellate jurisdiction must be exhausted before invoking the court's original jurisdiction
- The mere invocation of constitutional provisions cannot sanitize a claim that is otherwise barred
Court orders
#- 1.The respondent's preliminary objection on the grounds of res judicata and exhaustion is upheld
- 2.The petitioners' petition and application, both dated 17th July 2025, are struck out
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (original jurisdiction of the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karungu & another v Taifa Gas Investment Sez Limited; National Environment Management Authority (Interested Party) (Environment and Land Petition E006 of 2025) [2025] KEELC 7753 (KLR)", Case Analysis (2025). Mombasa ELC No. E006 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7753/eng@2025-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.