https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4263

Baboon Project Kenya v Geothermal Development Company Ltd & another (Environment and Land Petition E003 of 2025) [2026] KEELC 4263 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4263 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Petition E003 of 2025 MAO Odeny, J July 8, 2026 Between Baboon Project Kenya Petitioner and Geothermal Development Company Limited 1st Respondent National Environmental Management Authority 2nd Respondent Ruling 1.This ruling is in respect of a Notice of Preliminary Objection dated 12th January, 2026, by the Respondent/Applicant on the following grounds:1.That to the extent that the Petition and/or Application challenges the issuance, extension, validity, adequacy, conditions, or procedural regularity of an Environmental and Social Impact Assessment license and related approvals by the 2nd Respondent, the dispute is one for determination under the statutory dispute resolution mechanism provided in law, including recourse to the National Environment Tribunal, and the Petition/Application is prematurely before this Honourable Court.2.That the Petition and/or Application offends the doctrine of exhaustion of alternative remedies as provided in law, and no sufficient exceptional circumstances have been pleaded to warrant by passing the specialized forum and statutory mechanisms.3.That in the premises, the Petition and/or Application is incompetent and ought to be struck out with costs or in the alternative stayed, with the Petitioner directed to pursue the appropriate statutory forum/mechanisms in the first instance. 2.The Preliminary Objection was canvassed by way of written submissions. DIVISION - Respondents’ Submissions 3.Counsel for the 1st Respondent identified the following issues for determination:a.Whether the Notice of Preliminary Objection raises a pure point of law capable of determination at this stage.b.Whether this court has jurisdiction at first instance to entertain the Petition and the Notice of Motion in light of EMCA and the doctrine of exhaustion.c.What orders should follow. 4.On the first issue, counsel submitted that the preliminary objection is challenging the court’s jurisdiction to entertain the dispute. The objection is founded on the Environmental Management and Coordination Act, and the doctrine of exhaustion. Counsel submitted that the Petitioners’ case is a challenge to the environmental approvals, licences, conditions and regulatory processes undertaken under EMCA Act, which falls within the jurisdiction of the National Environment Tribunal. Counsel further argued that from the cited the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd EA 696. 5.Mr. Chemngórem submitted that where a statute establishes a specific dispute resolution mechanism, the said mechanism must first be invoked unless properly pleaded and demonstrated exceptional circumstances are shown and, in this case, no such exceptional circumstances have been shown. Counsel further stated that the Petitioner must first exhaust the specialized statutory dispute resolution mechanism, the National Environment Tribunal (NET) before approaching the Environment and Land Court, and relied on the cases of Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] KECA 875 (KLR). 6.Counsel also cited Sections 125, 129, and 130 of the Environmental Management and Co-ordination Act (EMCA) and Section 9(2), (3) and (4) of the Fair Administrative Action Act, and submitted that EMCA Act establishes complete statutory architecture for the regulation of environmental approvals and resolution of disputes arising therefrom. 7.Mr. Chemng’orem further relied on Section 129 which provides a right of appeal to the Tribunal by any person aggrieved by, among other things the grant, refusal, transfer, revocation, suspension or variation of a license or permit, the imposition of conditions, limitations or restrictions, or decisions made by the authority or its organs under the Act. 8.Section 129 (3) grants the Tribunal broad remedial powers to confirm, set aside or vary the impugned decision, exercise any power which could have been exercised by the Authority, make such other order as it deems just, and, upon application, issue orders maintaining the status quo pending the determination of the Appeal. 9.Counsel relied on the case of Speaker of the National Assembly V James Njenga Karume [1992] eKLR, where the Court of Appeal held that where there is a clear procedure for redress or a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure ought to be strictly followed. 10.It was counsel’s further submission that Petitioner has not demonstrated the existence of any exceptional circumstances that would justify bypassing the statutory dispute resolution mechanism established under the Environmental Management and Co-ordination Act. 11.According to counsel, by allowing the Petition to proceed before this Court in the first instance would defeat the clear legislative intention behind the establishment of specialized tribunals such as the NET, further, that it would undermine the orderly system of dispute resolution contemplated under the environmental regulatory framework. 12.A In conclusion, counsel urged the court to strike out the Petition and Notice of Motion with costs for want of jurisdiction, in the alternative, the court should stay the proceedings to allow the Petitioner pursue the matter before the National Environment Tribunal (NET). Applicant’s Submissions 13.Counsel for the Applicant filed submissions dated 20th April, 2026, in opposition to the Respondent’s preliminary Objection and submitted that the P.O, is an abuse of court process as it is calculated to improperly oust the jurisdiction of the court. Counsel also stated that the issue was not a pure point of law but a factual and evidentiary issue that required interrogation, and relied on the case of Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors Ltd (1969) EA 696. 14.Mr. Kirui submitted that the Petition raised constitutional and public law questions that fell within the court’s jurisdiction, and relied on the case of Geoffrey Muthinja & another V Samuel Muguna Henry & 1756 others [2015], where the court stated that while parties should generally exhaust statutory remedies, courts retain the discretion to intervene where circumstances warrant. 15.Counsel further relied on the case of Krystalline Salt Ltd v Kenya Revenue Authority [2019] KEHC 6939 (KLR), where the court held that exhaustion remedy may be bypassed where; the alternative remedy is inadequate or ineffective, the dispute raises pure constitutional questions. The statutory forum lacks jurisdiction to grant the relief sought, Counsel also cited the case of Republic V National Environment Management Authority Ex parte Sound Equipment Ltd, [2011] eKLR, where the court recognized that statutory Tribunals cannot determine constitutional issues or grant judicial review remedies. 16.In conclusion, counsel submitted that the National Environmental Tribunal had limited jurisdiction, thus, the reliefs sought in the Petition are beyond its mandate, and urged the court to dismiss the preliminary objection with costs. Analysis And Determination 17.The issue for determination is whether the Petition offends the doctrine of exhaustion and whether this court has jurisdiction to hear and determine this petition. 18.The Respondents contend that the dispute arose from the issuance and validity of Environmental Impact Assessment licenses, which fall within the mandate of the National Environment Tribunal, and therefore this court lacks the requisite jurisdiction, to hear and determine the Petition. 19.It is trite law that that a preliminary objection ought to raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion, as was held in the case of Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors Ltd (1969) EA 696. 20.It was the Respondent’s contention that the Preliminary Objection was on a point of law on the issue of jurisdiction. They contend that the Petitioner ought to first exhaust the specialized statutory dispute resolution mechanism, in this case the National Environment Tribunal (NET) before approaching the Environment and Land Court. 21.In the case of Macharia & another V Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) the court held as follows:“(68). A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.” 22.Section 13 of the Environment and Land Court Act provides as follows:“(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; [Emphasis is mine]and(e)any other dispute relating to environment and land.” 23.Further, Section 125 of EMCA establishes the National Environmental Tribunal, whose mandate is to hear disputes regarding NEMA’s decisions on the issuance, denial, or revocation of a license. 24.Section 129(1) and (2) of Environment Management and Coordination Act (EMCA) provides:“Any person who is aggrieved by;a)the grant of a license or permit or a refusal to grant a license or permit, or the transfer of a license or permit, under this Act or its regulations; b) the imposition of any condition, limitation or restriction on the person's license under this Act or its regulations; c) the revocation, suspension or variation of the person's license under this Act or its regulations; d) the amount of money required to be paid as a fee under this Act or its regulations; e) the imposition against the person of an environmental restoration order or environmental improvement order by the Authority under this Act or its Regulations, may, within sixty days after the occurrence of the event against which the person is satisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.2)Unless otherwise expressly provided in this Act, where this Act empowers the Director General, the Authority or Committees of the Authority or its agents to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose” 25.The issue in the Petition is the 1st Respondent’s impugned decisions in relation to the issuance of an Environmental Impact Assessment license whose actions have consequently violated the Petitioner’s constitutional rights. 26.The court is cognizant of the fact that challenges to Environmental Impact Assessment study report and/or Environmental Impact Assessment Licenses shall be made to the National Environment Tribunal established under section 125 of Environment Management and Coordination Act as was held in the case of Republic – Versus - NEMA Ex parte Sound Equipment Limited [2011] eKLR, (Supra), where the Court held that:“Challenges to Environmental Impact Assessment study report and/or Environmental Impact Assessment Licenses shall be made to the National Environment Tribunal established under section 125 of Environment Management and Coordination Act. The tribunal should have been given the first opportunity and option to consider the matter. The Tribunal is the specialized body with capacity to minutely scrutinize the Environmental Impact Assessment study report as well as the licenses” 27.In the case of Nicholus V Attorney General & 7 others; National Environmental Complaints Committee & 5 0thers (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) held as follows:“…the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court.” 28.It is also trite law that inclusion in a petition of matters subject to jurisdiction of other fora is now a non-issue following the holding in the Abidha Nicholas Appeal (supra) as follows:“40.We state categorically and without equivocation that the multifaceted nature of any petition, or suit for that matter, is not a basis to find a court to arrogate jurisdiction to itself. This court already made a finding on this issue and castigated such reasoning in Kibos Distillers Limited & 4 Others -vs- Benson Ambuti Adega & 3 Others [2020] eKLR; In the instant matter, the learned judge citing the case of Ken Kasinga -vs- Daniel Kiplagat Kirui & 5 others, [2015]eKLR, and other decisions from courts of coordinate jurisdiction held that where a claim in a petition or suit is multifaceted, a court can have jurisdiction despite existence of another forum, institution or agency that has been legislatively conferred with jurisdiction to determine the matter. With due respect, this is a wrong exposition of law. Such a reasoning implies that jurisdiction may be conferred through the art and craft of drafting of pleadings - that all that a litigant need to do is to draft pleadings such that claims are raised in a multifaceted way and thereby oust the jurisdiction of any specialized tribunal or agency. This promotes forum shopping.” 29.Notably, a cursory look at the reliefs sought in the Petition dated 20th November, 2025, confirm that the Petitioner seeks declaratory orders arising from infringement of its constitutional rights which the NET cannot grant in the circumstance. However, parties should not be allowed to forum shop by dropping some constitutional rights infringement to evade the doctrine of exhaustion. A party must establish the exceptional circumstances why the case should be heard in a court instead of the statutorily provided Tribunal of first instance. 30.The National Environment Tribunal cannot adequately and effectively handle the reliefs sought in the petition. The constitutional nature of the claims justifies an exemption from the doctrine of exhaustion. 31.Consequently, I find that this court has the requisite jurisdiction to hear and determine the Petition on its merits. The upshot is that, the preliminary objection dated 12th January 2016 is hereby dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED AT NAKURU THIS 8TH DAY OF JULY 2026.M. A. ODENYJUDGE