Baboon Project Kenya v Geothermal Development Company Ltd & another (Environment and Land Petition E003 of 2025) [2026] KEELC 4263 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Petition offends the doctrine of exhaustion and whether the Environment and Land Court has jurisdiction
The preliminary objection was dismissed; the court held it has jurisdiction because the reliefs sought are declaratory constitutional orders the NET cannot grant, and the constitutional nature of the claims justifies exemption from exhaustion
The court acknowledged that challenges to EIA licences ordinarily lie with the NET under sections 125 and 129 of EMCA. However, it noted the Petitioner seeks declaratory orders for infringement of constitutional rights which the NET cannot grant. Applying Nicholus v Attorney General, alternative remedies do not bar constitutional relief where inadequate. The multifaceted nature of a petition is not itself a bar (Abidha Nicholas), though forum shopping is not permitted. The constitutional claims justified exemption from exhaustion, so the court has jurisdiction to hear the Petition on its merits.
Whether the preliminary objection raised a pure point of law
The court applied the Mukisa Biscuit test that a preliminary objection must be a pure point of law argued on assumed facts
The court recited the settled principle from Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd that a preliminary objection must raise a pure point of law, cannot be raised where facts must be ascertained from elsewhere, and cannot depend on the exercise of judicial discretion. The Respondents framed the objection as a pure point of law on jurisdiction founded on EMCA and the doctrine of exhaustion. The court proceeded to determine the objection on that basis without further fact-finding.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed facts and cannot depend on ascertaining facts or judicial discretion
- The availability of an alternative statutory remedy does not bar constitutional relief where that remedy is inadequate to address the grievance
- A party seeking to bypass a statutory tribunal must establish exceptional circumstances justifying hearing by a court instead of the statutorily provided tribunal of first instance
Court orders
#- 1.The preliminary objection dated 12th January 2026 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baboon Project Kenya v Geothermal Development Company Ltd & another (Environment and Land Petition E003 of 2025) [2026] KEELC 4263 (KLR)", Case Analysis (2026). Not stated in the judgment (Petition dated 20th November, 2025; Notice of Preliminary Objection dated 12th January, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4263/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.