[2023] KEELC 670 (KLR)

Watamu Hospital Limited v ATC Kenya Operations Limited; National Environment Management Authority (Interested Party) (Environment & Land Case 28 of 2022) [2023] KEELC 670 (KLR) (7 February 2023) (Ruling)

Neutral citation: [2023] KEELC 670 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 28 of 2022

MAO Odeny, J

February 7, 2023

Between

Watamu Hospital Limited

Plaintiff

and

ATC Kenya Operations Limited

Defendant

and

National Environment Management Authority

Interested Party

Ruling

1. This ruling is in respect of a notice of a preliminary objection dated May 24, 2022 by the defendant/applicant on the ground that this honourable court lacks jurisdiction to determine the suit as the same should be heard and be determined by the National Environment Tribunal at the first instance by dint of section 125, 126 and 129 of the EMCA.

2. Parties agreed to canvass the preliminary objection by way of written submissions of which only the plaintiff complied.

Plaintiff’s Submissions 3. Counsel submitted on the issue whether the court has jurisdiction to hear and determine this suit and relied on the case ofSamuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where the court held that 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.

4. Mr Atiang relied on section 129 of the EMCAwhich provides for the jurisdiction of the National Environment Tribunal which states that any person who is aggrieved by the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under this Act or its regulations; the imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations; the revocation, suspension or variation of the person's licence under this Act or its regulations; the amount of money required to be paid as a fee under this Act or its regulations; 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 dissatisfied, appeal to the tribunal in such manner as may be prescribed by the tribunal.

5. It was counsel’s submission that this only applies if there was a license issued by the interested party and that in this case no license was issued by the interested party to construct the telecommunication mast as evidenced by issuance of a stop order from the National Construction Authority after one of the plaintiff’s director visited the interested party’s office on April 22, 2022 and further made a formal complaint with the interested party’s office in Kilifi who also sent their officers who stopped the construction and arrested the site manager. No such license was issued to warrant an appeal to the National Environment Tribunal.

6. Counsel relied on the cases of Taib Investments Limited v Fahim Salim Said & 5 others[2016] eKLR, West Kenya Sugar Co Limited v Busia Sugar Industries Limited & 2 others, [2017] eKLR and Paolo Di Maria & 5 others v Alice M Kuria & 5 others[2021] eKLR where the court held that the most suitable forum to deal with such multiple issues would be the Environment and Land Court by virtue of article 162(2) of the Constitution.

7. Mr Atiang submitted that the reliefs that the plaintiff sought in the plaint are in relation to violation of their right to a clean and healthy environment, a claim that the National Environment Tribunal has no jurisdiction to determine. Counsel therefore urged the court to dismiss the preliminary objection with costs.

Analysis And Determination 8. The issue for determination is whether this court has jurisdiction to hear and determine this matter. The applicant filed this preliminary objection raising an issue of jurisdiction which is a point of law and falls within the principles of objections as per the case of Mukhisa Biscuit Manufacturers Ltd v West End Distributors Ltd[1969] EA.

9. It is unfortunate that the applicant filed the preliminary objection and disappeared as they did not submit on why they think that this court has no jurisdiction to hear and determine this matter.

10. Even though the applicant did not file submission on the objection, there is an issue which has been raised on whether the or not a license was issued to the defendant by the interested party. The respondent has stated that no license was issued hence there was no need of an appeal to the National Environment Tribunal. If this fact was disputed, then it would knock out the preliminary objection as it is trite that a preliminary objection should not be raised if any facts have to be ascertained.

11. In the case of In the case ofOraro v Mbaja (2005) eKLR, the court held that: -“As already remarked, anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

12. Courts have handled many cases on the jurisdiction of the Environment and Land Court and that of the National Environment Tribunal. Their mandates are very distinct and clear which should not leave any doubt or confusion on which forum does what. A court can only exercise jurisdiction as conferred to it by the constitution or other written law and cannot arrogate itself any jurisdiction. Parties cannot also give the court the jurisdiction that it does not have.

13. The National Environment Tribunal is established under section 125(1) of theEMCA which reads: -1. There is established a tribunal to be known as the National Environment Tribunal which shall consist of the following members…

14. Further section 129 of the EMCA sets out the jurisdiction of the National Environment Tribunal as follows: -(1)Any person who is aggrieved by—a.the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under this Act or its regulations;b.the imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations;c.the revocation, suspension or variation of the person's licence under this Act or its regulations;d.the amount of money required to 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 dissatisfied, appeal to the tribunal in such manner as may be prescribed by the tribunal.

15. Section 130 of the EMCAfurther makes provision for appeals to the Environment and Land Court in the event that a party is aggrieved by the decision of the tribunal.

16. Section 13 of the Environment and Land Court Act provides for the jurisdiction of the Environment and Land Court that is also envisaged under article 162(2) (b) of the Constitution. Section 13 reads: -13. Jurisdiction of the court1. 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; ande.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.

4. In addition to the matters referred to in subsections (1) and (2), the court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the court.

17. The plaintiff vide its plaint seeking a declaration that the defendant’s actions are in contravention of their right to a clean and healthy environment; injunction orders to stop construction and demolish the present construction; general damages for violation of the plaintiff’s right to a clean and safe environment; and costs.

18. The reliefs sought by the plaintiff cannot be granted by the National Environment Tribunal and the only court that has such jurisdiction is this court.

19. In the notice of the preliminary objection counsel for the defendant alluded to a similar case being handled by the National Environment Tribunal but did not give particulars, therefore it remains an allegation which the court cannot rely on. If there is such a case before the tribunal on violation of right to clean and healthy environment, then it would be in the wrong forum.

20. I rely on the cases of Taib Investments Limited v Fahim Salim Said & 5 others [2016] eKLR, West Kenya Sugar Co Limited v Busia Sugar Industries Limited & 2 others, [2017] eKLR and Paolo Di Maria & 5 others v Alice M Kuria & 5 others[2021] eKLR where courts have pronounced themselves on the issue of jurisdiction of the Environment and Land Court vis a vis the National Environment Tribunal.

21. I therefore find that the preliminary objection lacks merit and is therefore dismissed with costs as this court has the requisite jurisdiction to hear and determine this matter.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 7THDAY OF FEBRUARY 2023. M.A. ODENYJUDGENB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.