Enukan & 72 others v Tullow Kenya BV & 2 others; National Environment Management Authority & another (Interested Parties); Kenya Legal and Ethical IssuesNational Environment Tribunal Work on Hiv & Aids (kELIN) & another (Amicus Curiae) (Environment and Land Constitutional Petition E001 of 2024) [2025] KEELC 8329 (KLR)
The bottom line
#The Environment and Land Court ruled that the Turkana community's environmental lawsuit against Tullow Kenya can proceed to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection is a pure point of law
It is not; it is blurred with factual details requiring proof and evidence, and is therefore not a true preliminary objection.
Following Oraro -vs- Mbaja, any assertion claiming to be a preliminary objection yet bearing factual aspects calling for proof is not a true preliminary objection. The objection here depended on characterising the petition's issues from pleadings, annexures and contested facts, including the replying affidavit of Moses Mburu, which was in variance with the preliminary objection itself.
Whether the National Environment Tribunal and Energy and Petroleum Tribunal oust this court's jurisdiction
No. The predominant complaints are constitutional, and the tribunals lack jurisdiction to determine constitutional rights violations.
Applying Nicholus -vs- Attorney General, EMCA and the Energy Act do not expressly oust the ELC's jurisdiction. Article 42 read with Article 70 entitles petitioners to approach this court for redress where the right to a clean and healthy environment is violated or threatened. The predominant purpose test shows the petition raises constitutional questions requiring constitutional resolution.
Whether the doctrine of exhaustion bars the petition
It does not, because the alternative forums cannot grant the constitutional remedies sought and the alleged violations are not mere bootstraps.
The court applied the nuanced approach in Nicholus and Ramogi: where the suit primarily enforces fundamental rights and the alternative forums lack power to grant constitutional remedies, exhaustion does not apply. Striking out the petition would stifle access to justice under Article 48.
Whether the dispute is moot or academic
It is not; the issues are live, real and ongoing controversies requiring ongoing monitoring of the oil and gas project.
The pleadings and the respondents' own admissions and annexures show continuing environmental concerns, waste management, remediation and monitoring obligations in a first-of-its-kind project. A live controversy exists both at commencement and at decision, so the doctrine of mootness does not apply.
Legal principles established
#- A preliminary objection must be a pure point of law on the assumption that all facts pleaded by the adverse party are correct; it fails where facts must be ascertained.
- Where a suit primarily seeks to enforce fundamental rights and the constitutional violations are not mere bootstraps, it is not barred by the doctrine of exhaustion.
- The provisions of the Environmental Management and Coordination Act and the Energy Act do not expressly oust the jurisdiction of the Environment and Land Court over environmental and petroleum management disputes.
- The tribunals under EMCA and the Energy Act have no jurisdiction to determine alleged violations of the Constitution, including the right to a clean and healthy environment.
Court orders
#- 1.The preliminary objection dated 17/7/2024 is dismissed
- 2.Costs of the preliminary objection to the petitioners
- Jurisdiction invoked
- Articles 22, 23(3), 42, 69 and 70 of the Constitution as read with Section 13 of the Environment and Land Court Act; Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enukan & 72 others v Tullow Kenya BV & 2 others; National Environment Management Authority & another (Interested Parties); Kenya Legal and Ethical IssuesNational Environment Tribunal Work on Hiv & Aids (kELIN) & another (Amicus Curiae) (Environment and Land Constitutional Petition E001 of 2024) [2025] KEELC 8329 (KLR)", Case Analysis (2025). ELC Petition at Kitale (Preliminary Objection dated 17/7/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8329/eng@2025-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.