[2023] KEELC 20057 (KLR)

Kiagi v National Environment Tribunal; Seifert & another (Interested Parties) (Suing as Chairman and Secretary Respectively of the New Nyali Resident Association) (Environment & Land Petition 45 of 2021) [2023] KEELC 20057 (KLR) (26 September 2023) (Ruling)

Neutral citation: [2023] KEELC 20057 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Petition 45 of 2021

NA Matheka, J

September 26, 2023

Between

Paul Onyango Kiagi

Petitioner

and

National Environment Tribunal

Respondent

and

Herber Seifert

Interested Party

Dr. Esther Gatembu

Interested Party

Suing as Chairman and Secretary Respectively of the New Nyali Resident Association

(Suing as Chairman and Secretary respectively of the New Nyali Resident Association)

Ruling

1. The Interested Parties have raised a Notice of Preliminary Objection dated 22nd February 2022 that this Honourable Court lacks jurisdiction to stay proceedings before the National Environmental Tribunal in NET Tribunal Appeal No. 51 of 2020 Hubert Seifert & Another vs Paul Onyango Kiagi & Another. This was the prayer in the Petitioner’s application dated 13th February 2023. That stay in this court can only be granted in respect of this court's decision pending appeal to the Court of Appeal but not in respect of proceedings in another forum. This Court has already ruled that it has no jurisdiction and has downed its tools. There is no Petition and proper appeal before this court upon which the application for stay of NET Tribunal Appeal No. 51 of 2020: Hubert Seifert & Another v. Paul Onyangoo Kiagi & Another can be anchored. This court is functus officio in respect of the proceedings in NET Tribunal Appeal No. 51 of 2020: Hubert Seifert & Another v. Paul Onyango Kiagi & Another. There is no appeal filed and the prayer seeking stay "pending hearing of appeal" cannot be granted.

2. This court has considered the Appeal and submissions therein. According to the Black Law Dictionary a Preliminary Objection is defined as being:“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”

3. The above legal preposition has been made in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) E.A. 696 where the court held that;“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”

4. In the case of Attorney General & Another vs Andrew Mwaura Githinji & another (2016) eKLR the court outlined the scope and nature of preliminarily objection as;(i)A preliminary objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.(ii)A preliminary objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and(iii)The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.

5. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. I find that the filed preliminary objection by the Interested Party herein was properly brought before the court.

6. A Court of law cannot validly take any step without jurisdiction. The moment a party in a suit successfully challenges the jurisdiction of the Court, the said Court must down its tools. The Supreme Court in the Matter of Interim Independent Electoral Commission (2011) eKLR held as follows:“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“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.”[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”

7. Counsel for the Interested Party argued that the Preliminary Objection that this Court is functus officio by virtue of the fact that this matter has already been heard and determined. Jurisdiction is everything and without Jurisdiction the Court has no option but to down its tools. See the case of Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (Kenya) LTD (1989) 1 KLR, where the Court held that;“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 downs its tools in respect of the matter before it at the moment it holds the opinion that it is without Jurisdiction.”

8. In the case of County Government of Migori vs I N B Management IT Consultant Limited ( 2019) eKLR the Court held that;“10- The jurisdiction point raised by the Respondent herein clearly meets the foregone criteria being a pure point of law. That jurisdiction is everything is a well settled principle in law. My Lordship Ibrahim, JSC in Supreme Court of Kenya Civil application No 11 of 2016-“Hon (Lady ) Justice Kalpana H Rawal Versus Judicial Service Commission and others when in demystifying jurisdiction quoted from the decision in Supreme Court of Nigeria supreme case No 11 of 2012- “Ocheja Immanuel Dangama – Versus - Hon. Atoi Aidoko Aliaswan and 4 others where Walter Samuel Nkanu Onnoghen, JSC and expressed himself as follows;-“.....it is settled that jurisdiction is the life blood of any adjudication because a Court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a Court or tribunal without requisite jurisdiction is a nullity deed on arrival and of no legal effect whatever that is why an issue of jurisdiction is granted and fundamental in adjudication and has to be dealt with first and foremost.....”

9. This instant suit, the Petitioner submits that the preliminary objection is against their application dated 13th February 2023 for stay of execution pending appeal and that this court has jurisdiction. I have perused the court record and find a notice of appeal was filed on 28th September 2022, no other step has been taken since. This Petition was struck out for being sub judice and there is no reason for me to suspend matters at the tribunal as there is nothing before me in this matter. This decision has not been stayed or overturned.

10. In Kibos Distillers Limited & 4 others vs. Benson Ambuti Adega & 3 others (2020) eKLR, the Court of Appeal held as follows:“A party or litigant cannot be allowed to confer jurisdiction on a Court or oust jurisdiction of a competent organ through the art and craft of drafting pleadings. Even if a Court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause that confers jurisdiction on a Court or body to hear and determine all and sundry disputes. Original jurisdiction only means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To this end, I reiterate and affirm the dicta in Speaker of the National Assembly v. James Njenga Karume [1992] eKLR where it was stated that where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

11. This court’s jurisdiction emanates from the provisions of Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act (the ELC Act). Article 162(2)(b) of the Constitution provides as follows:“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to–(b)the environment and the use and occupation of, and title to, land.”

12. Parliament enacted the Environment and Land Court Act in compliance with the provisions of Article 162(3). 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; and(e)any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.”

13. Article 165(5) of the Constitution divests the High Court the jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated under Article 162(2) of the Constitution. The Supreme Court delved into the issue of the jurisdiction of this court vis-a-vis the jurisdiction of High Court in great detail in the case of Republic vs. Karisa Chengo & 2 Others (2017) eKLR in which it held as follows:“(52)In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act… From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with sui generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa...”

14. The reading of the Constitution and the Environment and Land Court Act shows that it is this court that has the unlimited jurisdiction to resolve disputes relating to land and the environment. However, this court’s jurisdiction is subject to the jurisdiction donated to the subordinate court and Tribunals by statutes, whose decisions are appealable to this court. One such Tribunal is the National Environmental Tribunal (the NET).

15. The jurisdiction of the NET, which is a creature of the Environmental Management and Co-ordination Act (EMCA) is found at Section 129 of the Environmental Management and Co-ordination Act which provides as follows:Appeals to the Tribunal“(1)Any person who is aggrieved by—a.a refusal to grant a licence or to the transfer of his licence under this Act or regulations made thereunder;b.the imposition of any condition, limitation or restriction on his licence under this Act or regulations made thereunder;c.the revocation, suspension or variation of his licence under this Act or regulations made thereunder;d.the amount of money which he is required to pay as a fee under this Act or regulations made thereunder;e.the imposition against him of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations made thereunder, may within sixty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.”

16. I find that this court has no jurisdiction to stay proceeding in the NET Tribunal for the above reasons and can only entertain appeals emanating from the said tribunal. Consequently, I find that the preliminary objection is merited and I dismiss the application dated 13th February 2022 with costs.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 26TH DAY OF SEPTEMBER 2023. N.A. MATHEKAJUDGE