[2020] KEHC 509 (KLR)
The court determined that the substance of the applicants' claims concerns the use of land and environmental impacts, which, under the Constitution and the Environment and Land Court Act, are matters reserved for the Environment and Land Court. Consequently, the High Court lacks jurisdiction to hear and determine...
Source-derived case information.
- Citation
- [2020] KEHC 509 (KLR)
- Parties
- Applicant: One Hundred and Two Peponi Road LLP; Applicant: Peponi Road Residents Association (In Formation); Respondent: National Environment Management Authority; Respondent: Nairobi City County Government; Respondent: Air View Properties Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E1158 of 2020
- Procedural Posture
- Judicial Review Application / Ruling on Jurisdiction and Transfer
- Outcome
- Application transferred to the Environment and Land Court for lack of jurisdiction.
- Judges
- P Nyamweya
- Legal Topics
- Environmental Impact Assessment, Land Use Permissions, Fair Administrative Action, Zoning Regulations, Judicial Review, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
One Hundred and Two Peponi Road LLP
Applicant
Peponi Road Residents Association (In Formation)
Applicant
National Environment Management Authority
Respondent
Nairobi City County Government
Respondent
Air View Properties Limited
Respondent
Procedural Posture
Judicial Review Application / Ruling on Jurisdiction and Transfer
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to land use and environmental impact assessments.
- 2 Whether the application should be transferred to the Environment and Land Court.
Ratio Decidendi
The court determined that the substance of the applicants' claims concerns the use of land and environmental impacts, which, under the Constitution and the Environment and Land Court Act, are matters reserved for the Environment and Land Court. Consequently, the High Court lacks jurisdiction to hear and determine the application. The proper course is to transfer the matter to the Environment and Land Court for further hearing and determination.
Court Disposition
Application transferred to the Environment and Land Court for lack of jurisdiction.
Orders
- This suit is transferred to the Environment and Land Court at Nairobi for further hearing and determination.
- The Applicants’ Chamber Summons dated 17th December 2020 shall be placed before the Duty Judge at the Environment and Land Court at Nairobi on 4th January 2021 for directions.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. E1158 OF 2020
BETWEEN
ONE HUNDRED AND TWO PEPONI ROAD LLP....................................1ST APPLICANT
PEPONI ROAD RESIDENTS ASSOCIATION (IN FORMATION)..........2ND APPLICANT
VERSUS
NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY.................................................................1ST RESPONDENT
NAIROBI CITY COUNTY GOVERNMENT..........................................2ND RESPONDENT
AIR VIEW PROPERTIES LIMITED......................................................3RD RESPONDENT
RULING
The Application
1. The Applicants herein have filed an application by way of a Chamber Summons dated 17th December 2020, seeking the following orders:
1. This application be certified urgent and it be heard ex-parte in the first instance.
2. Leave be granted to the Applicants to apply for an Order of Certiorari to remove into the High Court and quash forthwith the Environmental Impact Licence dated 13 October 2020 issued by the 1st Respondent to the 3rd Respondent.
3. Leave be granted to the Applicants to apply for an order of Certiorari to remove into the High Court and quash forthwith the Environmental Impact Assessment Report dated 3 March 2020 submitted by the 3rd Respondent to the 1st Respondent.
4. Leave be granted to the Applicants to apply for an order of Certiorari to remove into the High Court and quash forthwith the Form PPA 2 - Notification of Approval of Development Permission dated 13 November 2018.
5. Leave be granted to the Applicants to apply for a Declaration that the 3rd Respondent’s Environmental Impact Assessment report dated 3 March 2020 and the 1st Respondent’s Environmental Impact Assessment Licence dated 13 October 2020 violates the provisions of Regulation 17, 21 and 22 of the Environmental (Impact Assessment and Audit) Regulations, 2003 and the provisions of Article 47 of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015.
6. Leave be granted to the Applicants to apply for a Declaration that the 2nd Respondent’s decision to issue Form PPA 2 – Notification of Approval of Development Permission dated 13 November 2018 to the 3rd Respondent for construction of office blocks violates the 2nd Respondent’s Zoning Guide for Nairobi County and the provisions of Article 47 of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015.
7. Leave be granted to the Applicants to apply for an order of Prohibition against the 3rd Respondent for continuing with any construction of office blocks on Land Reference Number 17/432 (the 3rd Respondent’s Property) along Peponi Rise Road, off Peponi Road.
8. The grant of leave to institute judicial review proceedings do operate as a stay of the 1st Respondent’s Environmental Impact Assessment Licence dated 13 October 2020 and a stay of the ongoing construction being carried out by the 3rd Respondent on the 3rd Respondent’s Property.
9. An order of general damages be issued against the 1st – 3rd Respondents for violating the Applicants’ constitutional right to fair administrative action as guaranteed under Article 47 of the Constitution of Kenya, 2010.
10. The costs of this application be provided for.
2. It is evident that the Applicants are seeking orders in relation to the use of land, and environmental impacts thereof in the said application. Any disputes and orders sought in relation to title, use and occupation of land, and relating to the environment now fall within the exclusive jurisdiction of the Environment and Land Court, pursuant to Articles 162(2) (b) and 165(5) of the Constitution, and section 13 of the Environment and Land Court Act. This Court therefore has no jurisdiction to hear and determine the Chamber Summons dated 17th December 2020.
The Orders
3. In the premise I direct and order that this suit be and is hereby transferred to the Environment and Land Court at Nairobi for further hearing and determination. The Applicants’ Chamber Summons dated 17th December 2020 shall accordingly be placed before the Duty Judgeat theEnvironment and Land Court at Nairobi on 4th January 2021, for directions.
4. The Deputy Registrar of this Court shall send a copy of this ruling by electronic mail to the Applicants, and to the Deputy Registrar of the Environment and Land Court at Nairobi, by close of business on 21st December 2020.
5. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF DECEMBER 2020
P. NYAMWEYA
JUDGE