Kunah v Evergreen Tea Factory Ltd (Environment and Land Petition E007 of 2025) [2026] KEELC 2541 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC notwithstanding the dispute-resolution framework under EMCA
The Court has jurisdiction to hear the Petition despite the Respondent's exhaustion-of-remedies objection.
The Court relied on the Supreme Court decision in Nicholus v Attorney General, which held that EMCA does not expressly oust the ELC's jurisdiction over environmental disputes, that redress for constitutional violations is not part of NEMA's mandate, and that the availability of an alternative remedy does not necessarily bar constitutional relief. Since the Petitioner alleges violation of constitutional rights, the ELC retains original jurisdiction unless expressly ousted in a constitutionally compliant manner. The merits are left for the hearing of the Petition.
Prima facie case
No prima facie case was demonstrated.
The Petitioner's own report by Emerald Environment Limited found no evidence of chemical pollution attributable to the factory, while the Respondent's Water Sample Analytical Certificates from Lake Victoria South Water Services Board (2019-2024) showed the effluent met NEMA discharge standards. On this material the Court could not conclude that a right has apparently been infringed so as to call for an explanation from the Respondent, applying the Mrao definition of a prima facie case.
Irreparable injury and balance of convenience
Neither irreparable injury nor balance of convenience favoured the grant of the injunction.
The Court found it difficult at the interlocutory stage to determine whether the Respondent discharges waste water onto the suit land, requiring a site visit or report. The Petitioner had quantified his alleged loss, indicating damages could compensate him. The Petitioner's own report did not attribute the complained acts to the Respondent, and the effluent certificates showed compliance with NEMA standards. Consequently the balance of convenience did not tilt in the Petitioner's favour.
Priority certification prayer
Deemed abandoned for want of submissions.
Under prayer (4) the Petitioner sought certification of the Petition as raising weighty constitutional issues to be heard on a priority basis. Neither party addressed the Court on this prayer in their submissions, and the Court therefore deemed it abandoned.
Legal principles established
#- The provisions of the Environmental Management and Co-ordination Act do not expressly oust the jurisdiction of the Environment and Land Court over disputes involving the management of the environment; the availability of an alternative remedy does not necessarily bar a party from seeking constitutional relief.
- An applicant for a temporary injunction must sequentially establish a prima facie case with a probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience.
Court orders
#- 1.The Petitioner/Applicant's Notice of Motion application dated 18th June, 2025 is dismissed with costs.
- 2.Prayer (4) of the application (certification of the Petition as raising weighty constitutional issues and priority hearing) was deemed abandoned as neither party addressed the Court on it.
- Jurisdiction invoked
- Article 162(2)(b) and 165(3) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kunah v Evergreen Tea Factory Ltd (Environment and Land Petition E007 of 2025) [2026] KEELC 2541 (KLR)", Case Analysis (2026). Petition dated 18th June, 2025 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2541/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.