[2020] KEELC 3339 (KLR)
The court held that although the petition was framed as a constitutional petition, the substance of the dispute was the issuance of an Environmental Impact Assessment (EIA) licence. The Environmental Management and Coordination Act (EMCA) provides a specific statutory mechanism for challenging such licences through...
Source-derived case information.
- Citation
- [2020] KEELC 3339 (KLR)
- Parties
- Petitioner: Mara Naboisho Conservancy; Respondent: Director General NEMA Authority; Respondent: 2nd Respondent; Interested Party: Narok County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 16 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- Petition struck out for want of jurisdiction.
- Judges
- MN Kullow
- Legal Topics
- Environmental Impact Assessment, Jurisdiction of Courts, Constitutional Rights Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mara Naboisho Conservancy
Petitioner
Director General NEMA Authority
Respondent
2nd Respondent
Respondent
Narok County Government
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine a petition challenging the issuance of an Environmental Impact Assessment (EIA) licence.
- 2 Whether the proper forum for challenging an EIA licence is the National Environmental Tribunal under section 129 of the Environmental Management and Coordination Act (EMCA).
Ratio Decidendi
The court held that although the petition was framed as a constitutional petition, the substance of the dispute was the issuance of an Environmental Impact Assessment (EIA) licence. The Environmental Management and Coordination Act (EMCA) provides a specific statutory mechanism for challenging such licences through an appeal to the National Environmental Tribunal. The court found that it lacked jurisdiction to hear and determine the petition, as the proper forum for such grievances is the Tribunal. The petitioners had not demonstrated any exceptional circumstances to justify bypassing the statutory process. Consequently, the petition was struck out for want of jurisdiction.
Court Disposition
Petition struck out for want of jurisdiction.
Orders
- The petition is struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
CONSTITUTIONAL PET. NO. 16 OF 2018
IN THE MATTER OF PETITION UNDER ARTICLES 20,21,22
AND 23 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF INFIRINGMENT OF FUNDAMENTAL FREEDOMS
AND RIGHTS OF THE PETITIONERS UNDER ARTICLES 40,42,43,47,69
AND 70 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF ENVIRONMENTAL MANAGEMENT AND COORDINATION ACT
(NO. 8 OF 1999) AND ENVIRONMENT AND LAND COURT ACT (NO. 19 OF 2011) AND
IN THE MATER OF ENVIRONMENTAL IMPACT
ASSESSMENTLICENSE NO. NEMA/EIA/PSL/6181
BETWEEN
MARA NABOISHO CONSERVANCY.....................................PETITIONER
-VERSUS-
DIRECTOR GENERAL NEMA AUTHORITY & ANO...RESPONDENTS
AND
NAROK COUNTY GOVERNMENT & ANO.......INTERESTED PARTIES
RULING
The 2nd Respondent had raised a Preliminary Objection on point of law to strike out the Petition on the grounds that the honourable court lacks jurisdiction to hear and determine the petition on the Environmental Impact Assessment (EIA) Licence issued by the 1st Respondent can only be challenged by way of an Appeal to the National Environmental Tribunal by the provisions of Section 129 of the Environmental Management and Coordination Act No. 8 of 1988.
It is the 2nd Respondent’s contention that pursuant to the provisions of the aforesaid section any person who is aggrieved by the decision to grant a licence or permit is dissatisfied thereof with suits on the occurrence of the event against which he is aggrieved or dissatisfied can appeal to the National Environmental Tribunal which is established pursuant to the provisions of section 125 of the EMCA and it is on the above basis that when the petition here was filed it raised the preliminary objection arguing that rather than file the petition herein in challenging the EIA licence their first point of call would have been the National Environmental Tribunal.
The 2nd Respondent further contended that the petitioners have not demonstrated any exceptional circumstances to pursue the jurisdiction of the tribunal in the subject matter.
The Petitioner in response to the preliminary objection submitted that pursuant to the provisions of Article 162 (2) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act the court has jurisdiction to hear and determine the petition and contends the jurisdiction vested in the environment and Land court in both constitutional and statutory jurisdictions. The Petitioners further stated that the violations stipulated in the petition are constitutional in nature pursuant to the provisions of Articles 10,40,42,43,47,69,70 and thus properly before the court.
The 1st Respondent submitted that the matter raised in the petition are matters that fall within the Jurisdiction of the National Environmental Tribunal as the main grievance is the 1st Respondent issued an EIA that contravened their constitutional rights and thus the right forum for the hearing of these matter.
I have considered the preliminary objection that was raised and the petition. It is not disputed by the parties that the catalyst of the petition herein is centred in the issuance of the EIA and it is not constrained where should be the right forum to litigate the fair and from and from the issuance of the EIA.
Since the Preliminary Objection challenges the jurisdiction of the court it is paramount that the place to have the issue be heard and determined.
In the case of MV Lilian the court stated that jurisdiction is everything and a court cannot cloth itself with jurisdiction where it lacks one. In the instant matter it is clear that the petition though framed as a constitutional petition the common denominator of what is alleged to have ignited the alleged infringement is in respect of the EIA report and that being any party aggrieved by the issuance of an EIA report should find redress in the National Environment Tribunal as contemplated in the provisions of section 129 of EMCA and I find that this court lacks jurisdiction to hear and determine and I consequently strike out the said petition for want of jurisdiction.
DATED, SIGNED and DELIVERED in open court at NAROK on this 5TH day of MARCH, 2020
Mohammed Kullow
Judge
5/3/2020
In the presence of:-
CA:Chuma/Kimiriny
Mr Okinyi for the 2nd Respondent
N/A for the other parties
Mohammed Kullow
Judge
5/3/2020