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Supreme CourtAllowedPetition E007 of 2023

Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)

Supreme Court of Kenya
28 December 2023
Philomena Mbete MwiluP.M. MwiluSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
17,450 words in judgment
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AI-assisted case brief
·~70 min to read original · ~4 min brief

The bottom line

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Court says you can sue directly for constitutional land and environment rights.

What this practically means

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The Supreme Court ruled that the Environment and Land Court can hear cases where people claim their constitutional rights on land or environment were violated. You do not have to first go to other bodies like the National Environment Tribunal because they cannot decide on constitutional issues. The court also said you cannot change your case after a legal objection is raised. The case now goes back for a full hearing.

Executive summary

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The Supreme Court allowed the appeal by Abidha Nicholus against the Court of Appeal's decision that had upheld the striking out of his constitutional petition by the Environment and Land Court (ELC). The appellant had filed a petition at the ELC alleging violations of his constitutional rights (including rights to a clean and healthy environment, property, access to information, and fair administrative action) arising from mining activities on his land and the erection of electricity poles by KPLC. The ELC struck out the entire petition on preliminary objections, holding that the disputes should first be heard by the National Environment Tribunal (NET) under EMCA and by the Energy and Petroleum Regulatory Authority (EPRA) under the Energy Act. The Court of Appeal affirmed this decision. The Supreme Court held that it had jurisdiction under Article 163(4)(a) because the appeal involved the interpretation and application of Articles 162(2), 40, 42, and 70 of the Constitution regarding the ELC's jurisdiction. On the merits, the Court found that the ELC has original jurisdiction to hear constitutional petitions alleging violations of fundamental rights, and that neither NET, EPRA, nor the Energy and Petroleum Tribunal (EPT) have jurisdiction to determine constitutional violations. The Court held that the availability of alternative statutory remedies does not bar a party from seeking constitutional relief where those remedies are inadequate. The Court also held that a party cannot be required to amend pleadings after a preliminary objection on jurisdiction has been raised. The Court set aside the decisions of both lower courts and remitted the matter to the ELC for hearing on the merits by a different judge, with directions for expeditious hearing. Each party was ordered to bear its own costs at all levels.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant has properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution.
  2. 2.Whether the appellant was required to exhaust the alternative dispute resolution mechanisms under EMCA and the Energy Act before filing his constitutional petition at the Environment and Land Court.
  3. 3.Whether the Court of Appeal erred in finding that the appellant could amend his petition once a preliminary objection has been raised.
  4. 4.Remedies available to a party in a multifaceted claim.
  5. 5.What orders are to be issued by this court?
  6. 6.Who should bear the costs of this appeal?

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the Court of Appeal upheld a striking out of a petition for lack of jurisdiction without determining the merits of the constitutional claims.

Holding

The Supreme Court has jurisdiction because the appeal involves the interpretation and application of Articles 162(2), 40, 42, and 70 of the Constitution regarding the ELC's jurisdiction over environmental and land disputes, and the superior courts' reasoning took a constitutional trajectory.

Reasoning

The Court found that the appellant challenged the manner in which the ELC and Court of Appeal interpreted constitutional provisions conferring jurisdiction on the ELC. The question of ELC's jurisdiction requires interpretation of Articles 162(2) as read with Articles 40, 42, and 70. The Court applied the broader approach from Munya 1 and John Florence Maritime Services, holding that even where specific constitutional provisions are not directly in question, if the court's reasoning took a constitutional trajectory, jurisdiction is properly invoked. The Court overruled the respondents' objections that the appeal did not meet the jurisdictional threshold.

p. 24
02

Whether the appellant was required to exhaust alternative dispute resolution mechanisms under EMCA and the Energy Act before filing his constitutional petition at the ELC.

Holding

The appellant was not required to exhaust those mechanisms because his petition primarily alleged constitutional violations, which NET, EPRA, and EPT lack jurisdiction to determine. The ELC has original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act to hear such claims.

Reasoning

The Court distinguished between statutory disputes (which must go to NET/EPRA first) and constitutional violations (which the ELC can hear directly). It held that where a party alleges infringement of fundamental rights, the availability of an alternative remedy does not bar constitutional relief if that remedy is inadequate. The Court emphasized that Section 3(3) of EMCA expressly allows a person to apply to the ELC for redress of violations of the right to a clean and healthy environment. The Court found that the ELC erred in striking out the petition and the Court of Appeal erred in affirming that decision.

p. 31
03

Whether the Court of Appeal erred in finding that the appellant could amend his petition after a preliminary objection was raised.

Holding

Yes, the Court of Appeal erred. A party cannot amend pleadings once a preliminary objection on jurisdiction has been raised, as such an objection is a pure point of law that, if successful, disposes of the suit.

Reasoning

The Court relied on the classic definition of a preliminary objection from Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696. It held that requiring a party to amend after an objection is raised undermines the purpose of preliminary objections. The appellant was entitled to appeal the striking out rather than amend his pleadings.

p. 34
04

What remedies are available to a party in a multifaceted claim where some issues fall within the ELC's jurisdiction and others within statutory tribunals?

Holding

The ELC should retain and determine the constitutional issues within its jurisdiction and may remit other issues to the relevant statutory body, rather than striking out the entire petition. In this case, all issues raised were within the ELC's original jurisdiction.

Reasoning

The Court applied its decision in Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others, which held that a court should reserve constitutional issues pending determination of statutory issues by the relevant tribunal. However, the Court distinguished this case, finding that the claims against NEMA and KPLC were so intertwined with constitutional violations that it would be impractical to split them. The ELC was the most appropriate forum to hear all claims together.

p. 35

Legal principles established

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  • The ELC has original jurisdiction to hear constitutional petitions on environmental and land rights.
  • Statutory tribunals like NET and EPRA cannot determine constitutional violations.
  • A party cannot amend pleadings after a preliminary objection on jurisdiction is raised.
  • Courts should not strike out entire petitions if some issues are within jurisdiction; they can retain and remit parts.
  • The right to access court for constitutional redress cannot be blocked by alternative remedies.

Court orders

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  1. 1.The Petition of Appeal dated March 16, 2023 and lodged on March 20, 2023 is hereby allowed and the Judgment of the Court of Appeal dated February 7, 2023 is hereby set aside in entirety as is the Ruling of the Environment and Land Court dated February 2, 2021.
  2. 2.The matter is hereby remitted to the Environment and Land Court at Kisumu for hearing and determination by any judge other than Ombwayo, J on the alleged constitutional violations highlighted and in conformity with this judgment.
  3. 3.In view of the time taken in determining the issues raised by the appellant, we direct that the hearing before the ELC shall be conducted expeditiously and on a priority basis.
  4. 4.Each party shall bear its costs at the ELC, Court of Appeal and this Court.
  5. 5.We hereby direct that the sum of Kshs 6,000 deposited as security for costs in the appeal herein be refunded to the appellant.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Kisumu
Civil Appeal No E042 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms.
p. 31 Jurisdiction of ELC over constitutional violations
a party cannot move to amend pleadings once a preliminary objection has been raised as relates to pleadings filed to confer jurisdiction.
p. 34 Preliminary objections and amendment of pleadings
A court on its part, must not descend to the arena of litigation but instead determine all contested matters judicially and in a multifaceted claim, address each issue within its jurisdiction including remitting parts of the claim to the relevant statutory body while retaining what is properly before it.
p. 37 Remedies in multifaceted claims
The Petition of Appeal dated March 16, 2023 and lodged on March 20, 2023 is hereby allowed and the Judgment of the Court of Appeal dated February 7, 2023 is hereby set aside in entirety as is the Ruling of the Environment and Land Court dated February 2, 2021.
p. 38 Final orders - appeal allowed
The matter is hereby remitted to the Environment and Land Court at Kisumu for hearing and determination by any judge other than Ombwayo, J on the alleged constitutional violations highlighted and in conformity with this judgment.
p. 38 Final orders - remittal for hearing
Each party shall bear its costs at the ELC, Court of Appeal and this Court.
p. 38 Costs order

Key timeline

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2021-02-02
Environment and Land Court strikes out the petition for lack of jurisdiction.
2023-02-07
Court of Appeal upholds the striking out.
2023-03-20
Appellant lodges petition of appeal at the Supreme Court.
2023
Supreme Court allows the appeal, sets aside lower court decisions, and remits case to ELC.

Practical implications

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For lawyers

File constitutional claims directly in ELC

Lawyers should now file constitutional petitions directly in the Environment and Land Court without first exhausting alternative dispute resolution mechanisms like NET or EPRA, provided the claim includes allegations of constitutional violations. The ELC must retain jurisdiction over constitutional issues and can remit statutory issues to tribunals if appropriate. Also, avoid amending pleadings after a preliminary objection is raised.

For businesses

Plan for broader ELC jurisdiction

Businesses facing land or environmental disputes should be aware that constitutional claims can be brought directly to the ELC, potentially bypassing specialized tribunals. This may lead to longer litigation. Companies should ensure their operations do not violate constitutional rights to property and a clean environment, as the ELC has broad jurisdiction to hear all aspects of a multifaceted claim.

For individuals

Sue directly for your rights

Individuals who believe their constitutional rights regarding land or the environment have been violated can go straight to the Environment and Land Court without first going to other bodies like the National Environment Tribunal. This Supreme Court decision makes it easier to enforce your rights. If you have a multi-issue claim, the court will handle the constitutional parts and can send other issues to the right tribunal.

Frequently asked questions

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What is the jurisdiction of the Environment and Land Court in Kenya over constitutional issues?+

The ELC has original jurisdiction to hear and determine constitutional petitions alleging violations of rights under Articles 40, 42, and 70 of the Constitution, even if other laws provide alternative remedies. This was confirmed by the Supreme Court in Abidha Nicholus v. Cabinet Secretary for Mining.

Do I need to exhaust alternative remedies before filing a constitutional petition in Kenya?+

No, if your petition primarily alleges constitutional violations, you can go directly to the High Court or ELC. The Supreme Court held that requiring exhaustion would frustrate enforcement of fundamental rights, especially when the alternative body lacks jurisdiction to decide constitutional issues.

Can I amend my pleadings after a preliminary objection is raised in Kenya?+

No, once a preliminary objection on jurisdiction is raised, you cannot amend your pleadings to remove the issue. The court must decide the objection first. This was established in the Abidha Nicholus case, relying on the Mukisa Biscuit principle.

What is the effect of the Abidha Nicholus case on land disputes in Kenya?+

The case clarifies that the ELC can hear all aspects of a land dispute if constitutional issues are involved, without splitting the claim. This streamlines litigation and prevents delays. It also reinforces that individuals can directly access the ELC for constitutional redress without going through other tribunals first.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)", Case Analysis (2023). Petition E007 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/113/eng@2023-12-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.