Thiongo v Elsie Ridge Limited & 4 others (Environment & Land Case 1593 of 2016)  KEELC 16300 (KLR) (14 March 2023) (Ruling)
Neutral citation:  KEELC 16300 (KLR)
Republic of Kenya
Environment & Land Case 1593 of 2016
JA Mogeni, J
March 14, 2023
Geoffrey Mungai Thiongo
Elsie Ridge Limited
National Environment Management Authority
National Construction Authority
Nairobi City County Government
1.There are two (2) preliminary objections that the court is called upon to determine. The first was filed by the 1st Defendant on 7/12/2022 and the second by 2nd Defendant on 9/12/2022. Those Preliminary Objections contend and seek for orders that: -By 1st DefendantBy 2nd Defendant
6.The court has no jurisdiction to order the destruction of the 1st Defendant’s suit property as this would contravene articles 40 and 50 of the Constitution by condemning third parties unheard who have bought the various apartments.
2.The preliminary objections were disposed of by way of written submissions. All parties filed submissions in support and opposition to the preliminary objections, respectively which I have considered. The Plaintiff filed their written submissions dated 24/01/2023, the 1st Defendant filed submissions dated 18/01/2023 and further submissions dated 25/01/2023 and the 2nd Defendant filed submissions dated 16/12/2022.
3.Having examined the Amended Plaint dated the 20/01/2022, and taken into account the Reliefs sought, and having reviewed the rival submissions, the issue that suffices for Determination is whether the preliminary objections are merited.
Analysis and determination
4.The Preliminary Objections raised by the 1st and 2nd Defendants herein mainly relates to the lack of original jurisdiction of this Court by virtue of mandatory provisions of the Physical Planning (Physical and Land Use Planning Act and the Environmental Management & Coordination Act (EMCA), that the determination of NET Appeal No. 193 of 2016 ousts the court’s jurisdiction and that the Court has no jurisdiction to deal with the suit as no appeal was filed within 30 days of the decision of NET Appeal No. 193 of 2016, res judicata, the doctrine of exhaustion, that the constitutional issues are peripheral in nature and overshadowed by the dominant issue and that the plaintiff has perjured himself.
5.On the question of res judicata, the Court finds that this was already pronounced by Justice Okong’o and the same is therefore spent. I shall therefore not pronounce myself further on this.
6.On the question of jurisdiction, the 1st and 2nd Defendants are essentially challenging the jurisdiction of this court on the basis that the complaints raised by the Plaintiff, in particular prayers (a)-(g) is within the mandate of the NET Tribunal pursuant to section 129 of EMCA and prayers (a), (b), (c) and (g) are within the mandate of the Physical Planning Liaison Committee under the repealed Physical Planning Act, 1996. Both parties heavily deny that this court has jurisdiction. The 2nd defendant contended that this court cannot exercise original jurisdiction when the appeal before the NET Tribunal was dismissed. They further submitted that once the Plaintiff’s appeal was dismissed on 16/12/2016 by the NET Tribunal, the Plaintiff was mandatorily required to file an appeal before the ELC within 30 days.
7.Additionally, the 2nd defendant concedes that the new point of law that was brought out by the present preliminary objections was the doctrine of exhaustion. I shall delve on the same.
8.The preliminary objections ventilated by the 1st and 2nd defendants are essentially premised on the provisions of two separate and distinct Acts of Parliament: Section 129 of the Environmental Management & Coordination Act 1999 (2015) and Section 78 of the Physical and Land Use Act, 2019.
9.As pertains to the first limb, the provisions of Section 129 (1) & (2) of the EMCA 1999 (2015), have provided instances where Disputes pertaining to compliance with breach and/or violation of the Provisions of the Act, ought to lodge with and/or addressed by the National Environmental Tribunal, which is established pursuant to the Provisions of section 125 of the said Act.
10.For ease of reference, it is appropriate to reproduce the provisions of Section 129 of the EMCA Act,1999, which provides as hereunder:
11.From the foregoing provision, it becomes evident and/or apparent that the Reliefs that have been sought by the Plaintiff herein particularly (a)-(g) respectively, are matters which essentially ought to be ventilated before and/or addressed by the National Environmental Tribunal in the first instance.
12.As pertains to the second limb, the relevant provision is section 78 of the Physical and Land Use Act, 2019, which provides as hereunder:
13.Again, looking at the aforesaid provisions, the Reliefs sought by the Plaintiff herein relating to Prayers (a), (b), (c) and (g), respectively, which are essentially challenging the approval relating to change of user and approval of the proposed project, are matters that fall within the Statutory remit of the liaison committee.
14.In view of the foregoing, I agree with the 1st and 2nd Defendants that there does exists Statutory Dispute Resolution Mechanism, which ought to have been invoked in the first instance, before recourse was made to this Honourable court.
15.I note that the Plaintiff did approach the NET Tribunal with his grievances. However, there is no evidence relating to exhaustion that has been availed. The Plaintiff does contend in the Amended Plaint that the doctrine of exhaustion does not apply in the present suit. The Plaintiff avers as follows:
16.The Doctrine of Exhaustion is defined in Black’s Law Dictionary 10th Edition as follows –
17.In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)  eKLR the Court held as follows:
18.I find and hold that evidence relating to exhaustion is not sufficient on the Plaintiff’s part. The Plaintiff indeed had the right to appeal. He exercised the same by channeling his grievances to the NET Tribunal. However, his appeal was never heard on merit because the same was dismissed for being filed out of time. It is the Plaintiff’s case that he was never involved in the public participation exercise that would have led to the granting of approval to the 1st Defendant to develop the adjoining parcel of land known as LR No. 15005/12. The Plaintiff also explained that he made further inquiry and found that the 3rd defendant only received a report of the environmental impact on 5/12/2015 but an EIA Licence No. NEMA/EIA/PSL/2094 had been granted on 21/07/2015. That the licence was issued before an Environmental Impact Assessment Study Report was done. From the Ruling issued in NET Tribunal Appeal No. NET/193/2016, it appears the Plaintiff approached the Tribunal on 20/09/2016. His appeal was dismissed for being time barred and therefore the Tribunal did not delve on the merit of the suit and this court cannot consider the merits of the suit at all. The present suit was filed on 19/12/2016. The Plaintiff is clearly put in some effort in attempting to address the subject dispute before the statutory fora.
19.I must add that in instances where an Alternative Dispute Resolution Mechanism has been provided, a litigant is obliged to comply or better still implead that the said Alternative mechanism provided shall not suffice in respect to a particular matter. Section 9  of the Fair Administrative Actions Act.
20.As pertains to whether or not this honourable court has jurisdiction to address and/or attend to the subject dispute, it is important to take note of the following provisions: article 42, 69, 70 & 162 (2) b of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act, 2011 and Section 3(3) & 3(5) of the Environmental Management & Coordination Act, 1999 (2015).
21.Section 13 of the Environment and Land Court Act No. 19 of 2021 provides that:
22.Other than the foregoing provisions, I also note that Section 3(3) of the Environmental Management & Coordination Act, 1999 (2015) which provides as hereunder:
23.The provisions alluded to hereinbefore clothed and/or confer this honourable court with the requisite jurisdiction to entertain the subject dispute and grant the relief sought. Further, the existence of other statutory bodies conferred and/or vested with mandate to interrogate some aspect of the subject dispute, does not deprive, and oust the jurisdiction of this honourable court, which is a superior court of record.
24.From a reading of the aforementioned provisions, this Honourable Court is conferred and/or vested with both Original and Appellate Jurisdiction to hear all Disputes pertaining to and/or concerning Environmental Planning and Protection, Climate Issues, Land use Planning, Title, Tenure, Boundaries, Rates, Rents, Valuation, Minerals, and other Natural Resources.
25.It is also Imperative to take cognizance of the provision of section 13 (3) of the Environment and Land Court Act, Number 19 of 2011, which provides as hereunder:
26.I opine that this Honourable Court has and is seized of the requisite Jurisdiction to entertain and/or adjudicate upon the subject dispute. However, both the 1st and 2nd Defendant strongly submitted that this Honourable court ought not to assume jurisdiction where there exists Alternative Dispute Resolution Mechanism provided for in an act of Parliament and which should thus be the first frontier, in the Event of a Dispute arising.
27.As pertains to the Jurisdiction, I am guided by the Decision of the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank (2012) eKLR where the honourable Court underscored the source of a court’s Jurisdiction and in particular, observed as hereunder:
28.On the other hand, in the case of Esther Gachambi Mwangi v Samuel Mwangi Mbiri (2013) eKLR, the Court of Appeal observed as that:
29.Having found and held that this honourable court is conferred and/or clothed with both Original and Appellate Jurisdiction in respect of all, if not, most of the Reliefs sought, the critical question that should therefore be answered, is whether in such scenario the Honourable court should exercise and/or assume original jurisdiction.
30.Conversely, the other question would thus be what happens to the Appellate jurisdiction of this honourable court, in the event the Honourable court assumes Original Jurisdiction. Clearly, the court cannot exercise both jurisdictions, [that is, Original and Appellate], simultaneously and in my humble view, one aspect of Jurisdiction must, no doubt give way for the other.
31.Further, it is my humble opinion that like in disputes under the Environmental Management and Coordination Act, 1999 (2015), where this honourable court is the final appellate court, it would deprive any aggrieved party of the undoubted Right of Appeal. In this regard, this Honourable court would have restricted and/or otherwise diminished the Claimants’ Constitutional Rights of access to justice, particularly, the Right of Appeal.
32.I further hold the opinion, the Right to access to justice, under article 48 of the Constitution,2010, envisages a scenario where a litigant or a citizen, can be able to exhaust all the level of appeals provided for and/or sanctioned under the law. Consequently, this court while exercising the choice, whether to assume the Original Jurisdiction or defer same, to a statutory Body so established, the Honourable Court should be minded to provide the latitude for Appeal.
33.In any event, I wish to state that even where the Honourable Court, has both the original and Appellate Jurisdiction, it does not mean that the honourable court therefore must render the established statutory agencies and/or bodies irrelevant and/or dysfunctional.
34.A balance must be struck, so as to facilitate ordered functioning within the Bodies that are conferred with certain statutory mandates and to ensure that same achieve the Purpose of their creation and Existence.
35.In this regard, I adopt and rely on the decision of the Court of Appeal in the case of Kibos Distilers Limited & 4 Others v Benson Ambuti & 3 Others (2020) eKLR, where the honourable court held that:
36.Lastly, I have considered the prayers sought by the Plaintiff in the Amended Plaint dated 20/01/2022. The prayers for ease of reference are paraphrased as follows:
37.I opine that the dispute beforehand is multifaceted and/or raises cross-cutting issues, including declaratory orders pertaining to breach or violation of the Plaintiff’s constitutional and fundamental rights. However, In the case of Bernard Murage - v - Fine serve Africa Limited & 3 others  eKLR the Supreme Court again stated that:
38.Section 129 (3) of EMCA confers power upon the NET to inter alia exercise any power which could have been exercised by NEMA or make such other order as it may deem fit. The provisions of Section 129 (3) of EMCA is an all-encompassing provision that confers at first instance jurisdiction upon the Tribunal. to consider the prayer Nos. (g), (h), (i) and (j) in the Amended Plaint. It was never the intention of the Constitution makers or legislature that simply because a party has alleged violation of a constitutional right, the jurisdiction of any and all Tribunals must be ousted thereby conferring jurisdiction at first instance to the ELC or High Court. (See Kibos Distillers (supra).
39.I am therefore guided by the foregoing decisions, and I shall exercise judicial restraint and allow the established constitutional and statutory bodies, if any, to appropriate, exercise and carry out their extensive mandate in accordance with enabling statutes, before assuming Jurisdiction, in the event, upon the lodgment of Appeals, where appropriate.
40.On the question of Doctrine of Exhaustion, it is important that Plaintiff’s and/or litigants, knowing of the existence of alternative dispute resolution mechanism, should proceed to and exhaust same before approaching the Honourable court. I agree with the decision of the Court in the case of Geoffrey Muthinja Kabiro v Samuel Muguna Henry (2015) eKLR, where it held that:
41.The totality of the foregoing is that the truncheons aimed at the head of the plaintiff’s suit as against the defendants is inescapable. I find merit in the Preliminary Objections dated 6/12/2022 and 9/12/2022, and for which reasons the Plaintiff’s Suit is struck out with costs to the 1st and 2nd defendants.
DATED, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAIROBI THIS 14TH DAY OF MARCH, 2023.MOGENI J.JUDGEIn the virtual presence of :-Mr Lubellelah for the 4th DefendantMr. Muhizi holding brief for Allen Waiyaki Senior Counsel for 2nd DefendantMs. Hanoi holding brief for Ms. Njoroge for the PlaintiffNo appearance for the 1st Plaintiff and 5th DefendantMs. Caroline Sagina: Court Assistant