1. This ruling concerns the notices of preliminary objections dated 1st, 3rd, and 19th July 2024, as well as the notice of motion application under a certificate of urgency dated 7th June 2024.
2. The petition is based on Articles 1(3), 2, 10, 19, 20, 22, 23, 42, 69, and 70 of the Constitution of Kenya (2010), while the Notice of Motion Application relies on Articles 1 (3), 2, 10, 19, 20, 21, 22, 23, 42, 69, and 70 of the Constitution of Kenya, sections 29 and 36 of the Physical Planning Act, Rules 3, 4, 3,4,13, 19, and 23 of the Constitution of Kenya (Protection of rights and Fundamental freedoms) Practice and Procedure Rules, 2013, Section 13 of the Environment and Land Court Act No. 9 of 2011.
3. The preliminary objections are premised on the primary ground that this Court lacks the jurisdiction to hear and determine this matter as the Environmental Management and Co-ordination (Amendment) Act, 2015 (hereinafter “EMCA”) provides that parties who are aggrieved by the decision of the 2nd Respondent to grant an EIA license seek redress from National Environment Tribunal (NET) or National Environmental Complaints Committee (NECC).
4. Parties were directed to submit their written responses to the pending motions.
5. Arising from the materials placed before me, I frame the issues for the determination of this court as being whether this court has jurisdiction to hear the pending petition and application as the primary adjudicative forum, whether the conservatory orders sought should be issued pending the hearing and determination of the petition and who should bear costs.
6. The Petitioner claims that the 1st Respondent has violated their right to a clean environment, as envisaged by the Constitution, by establishing a bulk liquefied petroleum gas (LPG) storage facility on its property. The Petitioner, aggrieved by the decision of the 2nd Respondent regarding the issuance of the Environmental Impact Assessment License (hereinafter referred to as the “EIA License”) – which is disputed to have been issued - has filed this petition, claiming a breach of their right to a clean and healthy environment, as guaranteed by the Constitution. The Petitioner further contended that the public was entitled to participate in public consultations as required by Part 2, Article 69(1)(d) of the Constitution and Regulation 17 of the Environmental Management and Coordination (Impact Assessment and Audit) Regulations, 2003.
7. The Petitioner herein claims to be aggrieved by the decision of the Director General of NEMA. The Petitioner alleges to indisputably be among the persons who would be most adversely affected by the perceived negative impact that the project would have on the environment. The Petitioner claims to be aggrieved not only by the 2nd Respondent's decision to grant the EIA License but also by how the license was issued. In specific, the Petitioner claims that there was no public participation, contrary to the elaborate provisions of the law.
8. For the sake of order, the court will begin with the preliminary objection. The principles upon which this court is invited to determine the merit of a notice of preliminary objection were set out in the oft-cited case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. This case established the criteria for a preliminary objection, stating that it consists of a point of law that may dispose of the suit if argued as an initial point of contention. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by the contract, giving rise to the suit to refer the dispute to arbitration.
9. The Court of Appeal in Attorney General & Ministry of State for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamunjiga [2016] KECA 817 (KLR) reiterated the same position on what would constitute a Preliminary objection and held as follows:
“The test to be applied in determining whether the appellants’ Preliminary objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (supra). That is first, that the Preliminary objection raises a pure point of law, second, that there is demonstration that all the facts pleaded by the other side are correct; and third, that there is no fact that needs to be ascertained.”
10. The foundation of a preliminary objection in this matter rests squarely on the jurisdiction of this court, as held by Nyarangi J.A, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
11. A preliminary objection rests on the proposition that when raised, its fundamental achievement will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent time management as a court resource by summarily flagging frail and hopeless cases that, if admitted to full trial, would be a waste of judicial time and not serve the interests of justice. One will not be required to look elsewhere to find an answer as to whether a preliminary objection is sustainable or not but look at the pleadings and discover that the suit is a none starter – see Ogola J. in DJC v BKL (Civil suit E021 of 2021) [2022] KEHC 10189 (KLR) (27 June 2022) (Ruling):
12. The Petitioner submits that the 1st Respondent never applied for nor received an EIA license to commence the project in question. The Petitioner avers that, in the circumstances where a proponent never sought or obtained a permit, the law's explicit phrasing is limited to situations in which an applicant is dissatisfied with a NEMA decision involving a license or permit. In circumstances where no license has been awarded or applied for, there is no NEMA decision to appeal. Hence, the Tribunal has no competence to hear such arguments under Section 129 of the EAMCA.
13. The Petitioner argues that since the 1st Respondents commenced construction without a license, the Environment and Land Court (ELC) is the appropriate venue for addressing broader environmental issues, including potential violations of constitutional rights, as stated in Article 42 of the Constitution. The ELC is granted the authority under Section 13 of the Environment and Land Court Act, 2011, to hear and resolve disputes pertaining to environmental planning and protection, land use, and constitutional claims – see Eldoret Constitutional Petition No 2 of 2013 Mohammed Said v County Council of Nandi [2013] eKLR and West Kenya Sugar Co Limited v Busia Sugar Industries Limited & 2 others [2017] eKLR.
14. Petitioner further asserts that the National Environment Tribunal's authority rests solely on Section 129 of the EMCA, which addresses environmental issues related to NEMA judgments on ecological licenses, permits, or orders. The Tribunal lacks jurisdiction over matters concerning county government development approvals, as these approvals fall under the responsibility of the county planning authority in accordance with the Physical and Land Use Planning Act.
15. The Petitioner states That there is no provision in Section 129 of the EMCA or any other act that expands the Tribunal's jurisdiction to disputes over development licenses issued by county governments. The Environment and Land Court (ELC) is the sole body with the authority to handle disputes over development approvals.
16. The Petitioner believes that the Environment and Land Court (ELC) is expressly empowered to adjudicate disputes arising from land use and planning matters, including those involving county government approvals. This is outlined in Section 13 of the Environment and Land Court Act, 2011, which grants the ELC jurisdiction over disputes relating to environmental planning, land use, and development control.
17. Regarding the doctrine of exhaustion, the Petitioner asserts that their complaint extends beyond a mere challenge to the issuance of an Environmental Impact Assessment (EIA) license by the National Environment Management Authority (NEMA) The essence of the Petitioner’s case lies in the infringement of constitutional rights resulting from the actions of the 1st Respondent, which are unlawful and directly violate the Petitioner’s right to a clean and healthy environment. As previously explained, when the dispute mainly revolves around the violation of constitutional rights, the High Court has jurisdiction, even if other statutory bodies may address certain aspects of the dispute. The decisions in Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 others [2015] eKLR; William Odhiambo Ramogi & 3 others v. Attorney General & 4 others: Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR; and Ezekiel Okeyo Osiro v. NEMA & 2 others [2014] eKLR are cited.
18. On the other hand, the 1st Respondent is of the view that the issues raised in the current petition purely revolve around the EIA licence already issued by the 2nd Respondent and that an appeal before NET or the NECC is the only legal avenue afforded by the law to challenge the decision of the 2nd Respondent to grant the EIA License approving the proposed bulk liquefied petroleum gas (LPG) storage facility.
19. The Petitioner contends that in compliance with Section 59(1) of the EMCA and Regulation 21 of the Environmental Management and Coordination (Impact Assessment and Audit) Regulations 2003, the 2nd Respondent caused to be published in the Kenya Gazette, Vol. CXX – No. 137, dated 9th November 2018, a notice regarding the proposed development by the 1st Respondent and further published notices in newspapers of nationwide circulation. The public was invited to submit comments on the proposed project.
20. Neither the Petitioner herein nor any other members of the Kilifi community submitted any comments or raised any objections to the proposed project despite the invitation for comments being publicized. The Petitioner had an avenue provided under the law to ventilate the issues he is now raising; however, the Petitioner did not utilize this avenue.
21. The Energy Regulatory Commission (ERC) inspected the proposed project site on 24th November 2018 after receiving a copy of the study report Ref. NEMA/EIA/5/2/1519 (SR 1315) dated 26th October 2018, after which it indicated that it had no objection subject to additional requirements that it outlined in the said letter dated 28th January 2019;
22. The 2nd Respondent received no objections to the proposed project and issued the Environmental Impact Assessment License on 10th December 2019 in accordance with Regulation 24 of the Environmental Management and Coordination (Impact Assessment and Audit) Regulations 2003. Despite various invitations to submit comments, none of the Petitioners provided any comments or raised objections to the proposed project.
23. On 25th April 2024, the 2nd Respondent, by way of a Certificate of Variation of the Environmental Impact Assessment Licence No. NEMA/EIA/VC/2173 transferred the Environmental Impact Assessment Licence No. NEMA/EIA/PSL/8728 from VDPLC to the 1st Respondent. In addition, the 2nd Respondent issued the 1st Respondent with a Certificate of Transfer of an Environmental Impact Assessment Licence No. NEMA/EI/CTL/472. Transfer of an EIA License is provided for under Section 65 of EMCA, and it complies with this provision of the law that the license held by VDPLC was transferred to the 1st Respondent.
24. From the averment by the 1st Respondent, it is clear that this petition concerns issues related to the issuance of an EIA license to the 1st Respondent by the 2nd Respondent, contrary to the petitioner's assertion that no such license was ever issued.
25. The 1st Respondent extensively submitted, citing a thread of decisions from this Court and the Superior Courts, that the primary adjudicative body on issues of this nature should be NET – see Joseph Owino Muchesia & another v NEMA and another [2014] eKLR, Bridge Gate Holding Ltd v National Environment Management Authority & another [2015] eKLR and Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR.
26. Significantly, this court has dealt with a similar issue in Omar Salim Mwakweli & 3 others v Vipingo Development Limited & 2 others [2021] eKLR, where, in determining a similar petition (Olola J.), found that the Respondent's preliminary objection (in that petition) had merit, concerning this exact project. The court struck out the petition and held that:
“I was equally not persuaded by the arguments that the Tribunal had no scope to deal with the issues herein on the guise that the same touch on the Constitutional rights of the Petitioners. The alleged Constitutional infringements appear to me to arise from the failure of the Petitioners to abide by the procedure provided in law to avoid such infringements…
… To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear Constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the limited original jurisdiction conferred on the High Court by Article 165(3) (a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms. Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner…….
…The mere fact of peripheral references to the Constitution does not render the dispute amenable for determination by this Court where substantive legal provisions govern the matters under dispute and where the said provisions clearly provides the channel for seeking redress.
27. I agree with the 1st Respondent that Section 129(1) of the EMCA expressly provides that an appeal to the Tribunal is the primary port of call in this matter. The right to appeal to the National Environmental Tribunal (NET) is available to any party aggrieved by the grant of a license. This includes members of the public, such as the Petitioner herein, who, due to any development, claim to be affected by any environmental impact. This is the avenue that is available under the law for the Petitioner to raise his grievances.
28. I will also agree with the 1st Respondent that environmental issues are constitutional issues that should be adjudicated within the applicable constitutional and statutory framework in appreciation of the settled principles governing the enforcement of constitutional rights. The Environmental Management and Coordination (Amendment) Act, 2015 aims to give effect to and implement Articles 69 and 70 of the Constitution, which outline the state's obligations regarding the environment in general and the enforcement of environmental rights in particular.
29. Although Article 162(2) of the Constitution of Kenya, 2010, provides that the ELC has jurisdiction to hear and determine disputes relating to the environment and land, Article 162(3) provides that Parliament shall determine the jurisdiction and functions of the courts contemplated in this clause. The EMCA is the relevant Act of Parliament in this matter, and it provides for the procedures governing how matters relating to licenses issued by NEMA are heard and determined. Appeals from the Director General's decision lie with the National Environment Tribunal (NET) or the National Environmental Complaints Committee (NECC). In contrast, appeals from the decision of the said Tribunal or Committee lie with the ELC.
30. Before I put down my tools, let me reiterate that the issue of multifaceted claims must be considered on a case-by-case basis. The court then decides which is the most efficient and adequate forum to ventilate the same as guided by the Supreme Court and as restated by this court in County Government of Kilifi v Kai & 4 others; National Environment Management Authority & 2 others (Interested Parties) [2024] KEELC 13211 (KLR):
“In Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment), the Supreme Court has recently pronounced itself that parties should not be limited in access to justice whenever they seek to ventilate their matters - the only catch is - that the forum in which they seek redress is efficacious and that the doctrine of abstention/exhaustion is applied by the Courts where there exists such primary forum:”
31. The predominant feature in this petition is the issuance of an EIA license to the 1st Respondent by the 2nd Respondent. An appeal should lie to the NET. I need not consider the other grounds raised in the Preliminary objections, nor should I proceed to consider the pending application for conservatory orders. I have no jurisdiction to proceed further – I take a step back; I put down my tools.
32. The pending application dated 7th July 2024 and the entire petition dated 7th June 2024 are hereby struck out with costs.
Dated, signed, and delivered virtually at Malindi on this 26th day of March 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr.Gakuya , for the Petitioners
Ms. Nderu for 1st Respondent
Mr. Kenga, for the 3rd Respondent
Happy: Court Assistant
2. The petition is based on Articles 1(3), 2, 10, 19, 20, 22, 23, 42, 69, and 70 of the Constitution of Kenya (2010), while the Notice of Motion Application relies on Articles 1 (3), 2, 10, 19, 20, 21, 22, 23, 42, 69, and 70 of the Constitution of Kenya, sections 29 and 36 of the Physical Planning Act, Rules 3, 4, 3,4,13, 19, and 23 of the Constitution of Kenya (Protection of rights and Fundamental freedoms) Practice and Procedure Rules, 2013, Section 13 of the Environment and Land Court Act No. 9 of 2011.
3. The preliminary objections are premised on the primary ground that this Court lacks the jurisdiction to hear and determine this matter as the Environmental Management and Co-ordination (Amendment) Act, 2015 (hereinafter “EMCA”) provides that parties who are aggrieved by the decision of the 2nd Respondent to grant an EIA license seek redress from National Environment Tribunal (NET) or National Environmental Complaints Committee (NECC).
4. Parties were directed to submit their written responses to the pending motions.
5. Arising from the materials placed before me, I frame the issues for the determination of this court as being whether this court has jurisdiction to hear the pending petition and application as the primary adjudicative forum, whether the conservatory orders sought should be issued pending the hearing and determination of the petition and who should bear costs.
6. The Petitioner claims that the 1st Respondent has violated their right to a clean environment, as envisaged by the Constitution, by establishing a bulk liquefied petroleum gas (LPG) storage facility on its property. The Petitioner, aggrieved by the decision of the 2nd Respondent regarding the issuance of the Environmental Impact Assessment License (hereinafter referred to as the “EIA License”) – which is disputed to have been issued - has filed this petition, claiming a breach of their right to a clean and healthy environment, as guaranteed by the Constitution. The Petitioner further contended that the public was entitled to participate in public consultations as required by Part 2, Article 69(1)(d) of the Constitution and Regulation 17 of the Environmental Management and Coordination (Impact Assessment and Audit) Regulations, 2003.
7. The Petitioner herein claims to be aggrieved by the decision of the Director General of NEMA. The Petitioner alleges to indisputably be among the persons who would be most adversely affected by the perceived negative impact that the project would have on the environment. The Petitioner claims to be aggrieved not only by the 2nd Respondent's decision to grant the EIA License but also by how the license was issued. In specific, the Petitioner claims that there was no public participation, contrary to the elaborate provisions of the law.
8. For the sake of order, the court will begin with the preliminary objection. The principles upon which this court is invited to determine the merit of a notice of preliminary objection were set out in the oft-cited case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. This case established the criteria for a preliminary objection, stating that it consists of a point of law that may dispose of the suit if argued as an initial point of contention. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by the contract, giving rise to the suit to refer the dispute to arbitration.
9. The Court of Appeal in Attorney General & Ministry of State for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamunjiga [2016] KECA 817 (KLR) reiterated the same position on what would constitute a Preliminary objection and held as follows:
“The test to be applied in determining whether the appellants’ Preliminary objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (supra). That is first, that the Preliminary objection raises a pure point of law, second, that there is demonstration that all the facts pleaded by the other side are correct; and third, that there is no fact that needs to be ascertained.”
10. The foundation of a preliminary objection in this matter rests squarely on the jurisdiction of this court, as held by Nyarangi J.A, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
11. A preliminary objection rests on the proposition that when raised, its fundamental achievement will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent time management as a court resource by summarily flagging frail and hopeless cases that, if admitted to full trial, would be a waste of judicial time and not serve the interests of justice. One will not be required to look elsewhere to find an answer as to whether a preliminary objection is sustainable or not but look at the pleadings and discover that the suit is a none starter – see Ogola J. in DJC v BKL (Civil suit E021 of 2021) [2022] KEHC 10189 (KLR) (27 June 2022) (Ruling):
12. The Petitioner submits that the 1st Respondent never applied for nor received an EIA license to commence the project in question. The Petitioner avers that, in the circumstances where a proponent never sought or obtained a permit, the law's explicit phrasing is limited to situations in which an applicant is dissatisfied with a NEMA decision involving a license or permit. In circumstances where no license has been awarded or applied for, there is no NEMA decision to appeal. Hence, the Tribunal has no competence to hear such arguments under Section 129 of the EAMCA.
13. The Petitioner argues that since the 1st Respondents commenced construction without a license, the Environment and Land Court (ELC) is the appropriate venue for addressing broader environmental issues, including potential violations of constitutional rights, as stated in Article 42 of the Constitution. The ELC is granted the authority under Section 13 of the Environment and Land Court Act, 2011, to hear and resolve disputes pertaining to environmental planning and protection, land use, and constitutional claims – see Eldoret Constitutional Petition No 2 of 2013 Mohammed Said v County Council of Nandi [2013] eKLR and West Kenya Sugar Co Limited v Busia Sugar Industries Limited & 2 others [2017] eKLR.
14. Petitioner further asserts that the National Environment Tribunal's authority rests solely on Section 129 of the EMCA, which addresses environmental issues related to NEMA judgments on ecological licenses, permits, or orders. The Tribunal lacks jurisdiction over matters concerning county government development approvals, as these approvals fall under the responsibility of the county planning authority in accordance with the Physical and Land Use Planning Act.
15. The Petitioner states That there is no provision in Section 129 of the EMCA or any other act that expands the Tribunal's jurisdiction to disputes over development licenses issued by county governments. The Environment and Land Court (ELC) is the sole body with the authority to handle disputes over development approvals.
16. The Petitioner believes that the Environment and Land Court (ELC) is expressly empowered to adjudicate disputes arising from land use and planning matters, including those involving county government approvals. This is outlined in Section 13 of the Environment and Land Court Act, 2011, which grants the ELC jurisdiction over disputes relating to environmental planning, land use, and development control.
17. Regarding the doctrine of exhaustion, the Petitioner asserts that their complaint extends beyond a mere challenge to the issuance of an Environmental Impact Assessment (EIA) license by the National Environment Management Authority (NEMA) The essence of the Petitioner’s case lies in the infringement of constitutional rights resulting from the actions of the 1st Respondent, which are unlawful and directly violate the Petitioner’s right to a clean and healthy environment. As previously explained, when the dispute mainly revolves around the violation of constitutional rights, the High Court has jurisdiction, even if other statutory bodies may address certain aspects of the dispute. The decisions in Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 others [2015] eKLR; William Odhiambo Ramogi & 3 others v. Attorney General & 4 others: Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR; and Ezekiel Okeyo Osiro v. NEMA & 2 others [2014] eKLR are cited.
18. On the other hand, the 1st Respondent is of the view that the issues raised in the current petition purely revolve around the EIA licence already issued by the 2nd Respondent and that an appeal before NET or the NECC is the only legal avenue afforded by the law to challenge the decision of the 2nd Respondent to grant the EIA License approving the proposed bulk liquefied petroleum gas (LPG) storage facility.
19. The Petitioner contends that in compliance with Section 59(1) of the EMCA and Regulation 21 of the Environmental Management and Coordination (Impact Assessment and Audit) Regulations 2003, the 2nd Respondent caused to be published in the Kenya Gazette, Vol. CXX – No. 137, dated 9th November 2018, a notice regarding the proposed development by the 1st Respondent and further published notices in newspapers of nationwide circulation. The public was invited to submit comments on the proposed project.
20. Neither the Petitioner herein nor any other members of the Kilifi community submitted any comments or raised any objections to the proposed project despite the invitation for comments being publicized. The Petitioner had an avenue provided under the law to ventilate the issues he is now raising; however, the Petitioner did not utilize this avenue.
21. The Energy Regulatory Commission (ERC) inspected the proposed project site on 24th November 2018 after receiving a copy of the study report Ref. NEMA/EIA/5/2/1519 (SR 1315) dated 26th October 2018, after which it indicated that it had no objection subject to additional requirements that it outlined in the said letter dated 28th January 2019;
22. The 2nd Respondent received no objections to the proposed project and issued the Environmental Impact Assessment License on 10th December 2019 in accordance with Regulation 24 of the Environmental Management and Coordination (Impact Assessment and Audit) Regulations 2003. Despite various invitations to submit comments, none of the Petitioners provided any comments or raised objections to the proposed project.
23. On 25th April 2024, the 2nd Respondent, by way of a Certificate of Variation of the Environmental Impact Assessment Licence No. NEMA/EIA/VC/2173 transferred the Environmental Impact Assessment Licence No. NEMA/EIA/PSL/8728 from VDPLC to the 1st Respondent. In addition, the 2nd Respondent issued the 1st Respondent with a Certificate of Transfer of an Environmental Impact Assessment Licence No. NEMA/EI/CTL/472. Transfer of an EIA License is provided for under Section 65 of EMCA, and it complies with this provision of the law that the license held by VDPLC was transferred to the 1st Respondent.
24. From the averment by the 1st Respondent, it is clear that this petition concerns issues related to the issuance of an EIA license to the 1st Respondent by the 2nd Respondent, contrary to the petitioner's assertion that no such license was ever issued.
25. The 1st Respondent extensively submitted, citing a thread of decisions from this Court and the Superior Courts, that the primary adjudicative body on issues of this nature should be NET – see Joseph Owino Muchesia & another v NEMA and another [2014] eKLR, Bridge Gate Holding Ltd v National Environment Management Authority & another [2015] eKLR and Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR.
26. Significantly, this court has dealt with a similar issue in Omar Salim Mwakweli & 3 others v Vipingo Development Limited & 2 others [2021] eKLR, where, in determining a similar petition (Olola J.), found that the Respondent's preliminary objection (in that petition) had merit, concerning this exact project. The court struck out the petition and held that:
“I was equally not persuaded by the arguments that the Tribunal had no scope to deal with the issues herein on the guise that the same touch on the Constitutional rights of the Petitioners. The alleged Constitutional infringements appear to me to arise from the failure of the Petitioners to abide by the procedure provided in law to avoid such infringements…
… To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear Constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the limited original jurisdiction conferred on the High Court by Article 165(3) (a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms. Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner…….
…The mere fact of peripheral references to the Constitution does not render the dispute amenable for determination by this Court where substantive legal provisions govern the matters under dispute and where the said provisions clearly provides the channel for seeking redress.
27. I agree with the 1st Respondent that Section 129(1) of the EMCA expressly provides that an appeal to the Tribunal is the primary port of call in this matter. The right to appeal to the National Environmental Tribunal (NET) is available to any party aggrieved by the grant of a license. This includes members of the public, such as the Petitioner herein, who, due to any development, claim to be affected by any environmental impact. This is the avenue that is available under the law for the Petitioner to raise his grievances.
28. I will also agree with the 1st Respondent that environmental issues are constitutional issues that should be adjudicated within the applicable constitutional and statutory framework in appreciation of the settled principles governing the enforcement of constitutional rights. The Environmental Management and Coordination (Amendment) Act, 2015 aims to give effect to and implement Articles 69 and 70 of the Constitution, which outline the state's obligations regarding the environment in general and the enforcement of environmental rights in particular.
29. Although Article 162(2) of the Constitution of Kenya, 2010, provides that the ELC has jurisdiction to hear and determine disputes relating to the environment and land, Article 162(3) provides that Parliament shall determine the jurisdiction and functions of the courts contemplated in this clause. The EMCA is the relevant Act of Parliament in this matter, and it provides for the procedures governing how matters relating to licenses issued by NEMA are heard and determined. Appeals from the Director General's decision lie with the National Environment Tribunal (NET) or the National Environmental Complaints Committee (NECC). In contrast, appeals from the decision of the said Tribunal or Committee lie with the ELC.
30. Before I put down my tools, let me reiterate that the issue of multifaceted claims must be considered on a case-by-case basis. The court then decides which is the most efficient and adequate forum to ventilate the same as guided by the Supreme Court and as restated by this court in County Government of Kilifi v Kai & 4 others; National Environment Management Authority & 2 others (Interested Parties) [2024] KEELC 13211 (KLR):
“In Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment), the Supreme Court has recently pronounced itself that parties should not be limited in access to justice whenever they seek to ventilate their matters - the only catch is - that the forum in which they seek redress is efficacious and that the doctrine of abstention/exhaustion is applied by the Courts where there exists such primary forum:”
31. The predominant feature in this petition is the issuance of an EIA license to the 1st Respondent by the 2nd Respondent. An appeal should lie to the NET. I need not consider the other grounds raised in the Preliminary objections, nor should I proceed to consider the pending application for conservatory orders. I have no jurisdiction to proceed further – I take a step back; I put down my tools.
32. The pending application dated 7th July 2024 and the entire petition dated 7th June 2024 are hereby struck out with costs.
Dated, signed, and delivered virtually at Malindi on this 26th day of March 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr.Gakuya , for the Petitioners
Ms. Nderu for 1st Respondent
Mr. Kenga, for the 3rd Respondent
Happy: Court Assistant