By the 1st Respondent
7.On whether this court has jurisdiction to hear and determine the petition herein, the 1st respondent submits that the court lacks such jurisdiction by dint of the provisions of the National Environment Management Authority ('NEMA' or 'the Authority') as established under Section 7 of the Environmental Management and Coordination Act No 8 of 1999 ('the EMCA') as the principal instrument of Government mandated to exercise general supervision and coordination over all matters relating to the environment.
8.That Section 9 (j) and (l) of the EMCA outlines the objectives of the 1st Respondent to include the identification of projects and programmes or types of projects and programmes, plans and policies for which environmental audit or environmental monitoring must be conducted under the EMCA and monitoring and assessing of activities, including activities being carried out by relevant lead agencies, in order to ensure that the environment is not degraded by such activities, environmental management objectives are adhered to and adequate early warning on impending environmental emergencies is given.
9.In regard to the powers of the 1st respondent in relation to the consideration of applications for Environmental Impact Assessment Licenses and issuance of the same, Section 58 of the EMCA states as follows:
10.That Section 129 (1) and (2) of the EMCA further provide as follows:
11.It is further submitted by the 1st Respondent that, Section 129 (3) of the EMCA provides as follows in relation to the powers of the National Environment Tribunal (NET):1.Upon any appeal, the Tribunal may—a.Confirm, set aside or vary the order or decision in question;b.Exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; orc.Make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just;d.If satisfied upon application by any party, issue orders maintaining the status quo of any matter or activity which is the subject of the appeal until the appeal is determined;e.If satisfied upon application by any party, review any orders made under paragraph (a).
12.Relying on the Statutory provisions quoted, the 1st Respondent firms up the submissions that NET is empowered to issue conservatory/injunctive orders while exercising its mandate. Further, the jurisdiction of NET is of a judicial nature in relation to the licensing powers of the 1st Respondent.
13.The main issue raised by the petitioner/applicant in the subject notice of motion application is in relation to the several statutory approvals, permits and licences applied and granted by the respondents in relation to the subject - felling and export of 8 baobab trees and thus, this matter should not be reckoned by the ELC in the first instance (only on appeal) by dint of not only Section 129 of the EMCA, but also Section 70 of the Forest Conservation and Management Act. Further and in relation to the Phytosanitary Certificate issued by the 5th respondent, Section 27 of the Kenya Plant Health Inspectorate Service Act provides for arbitration as the mode of dispute resolution.
14.Thus, the 1st respondent urges this court to decline entertaining the matter as the petitioner/applicant suit goes against the trite legal principle that one must first exhaust internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. In the present matter, and as guided by Section 129 of the EMCA, NET would have been the appropriate mechanism of appeal or review before the petitioners/applicants sought the audience of this court.
17.The 1st Respondent thus submits that since the instant matter falls under the ambit of the National Environment Tribunal, without exhausting the mechanism available as provided in Section 129, the instant application/petition offends the doctrine of exhaustion, is premature and brought with mala fides.
18.In further support of the Preliminary Objection that this court lacks jurisdiction to entertain the instant notice of motion application and petition filed by the petitioner/applicant herein, the 1st Respondent submits that the original jurisdiction of the ELC, does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Further, that the fact that a claim/petition is multi-pronged (containing other prayers not touching on a NEMA licence), cannot remove the jurisdiction otherwise conferred on the NET. This position was upheld by Makhandia JA in the case of Kibos Distillers Limited and 4 others v Benson Ambuti Adega and 3 Others Civ Appeal No 153 of 2019  eKLR where the judge emphatically reiterated the need for courts to exercise absentation when a remedy lies to another organ by dint of legislation providing such forum.
19.The 1st respondent restates that it matters not that the petitioner has included other prayers such as seeking cancellation of the respondents’ approvals or for constitutional reliefs. That though the Petitioner has not expressly sought the cancellation of the approvals given by each of the cited respondents, the effect of its prayers is to defeat those approvals.
21.The 1st Respondent concludes that with the holding of the Supreme Court of Kenya’s decision in affirming the Court of Appeal in the Kibos Case reported as Benson Ambuti Adega & 2 others V Kibos Distillers Limited & 5 Others eKLR, Petition 3 of 2020, the ELC has no jurisdiction to entertain this matter in the manner it is drafted.
22.With the authorities cited, the 1st respondent is of the view that according to Section 129 of the EMCA, the main issue in the current application and petition is a dispute to the discernment of NEMA in the issuing of an EIA License and Access Permit (Annexure MM3 and MM4), and hence qualifies as an appeal to NET in the first instance rather than a petition before this court.
23.Equally, that according to Section 70 of the Forest Conservation and Management Act as read with Section 129 of the EMCA, the main issue in the current application and petition is a dispute to the discernment of the Kenya Forest Service in the issuing of its approval Permit (Annexure MM6(b)), and hence qualifies as an appeal to NET in the first instance rather than a petition before this court.
24.The 2nd Respondent prays that the instant Preliminary Objection be allowed as the matter in question offends the provisions of Section 129 of the EMCA and as a result, the court should down its tools (as per the holding of Law JA in Mukisa Biscuits Manufacturing Company Limited V West End Distributors  E.A. 696) and decline to entertain the notice of motion application and petition herein.
25.The 1st Respondent further opines that the petitioner has also circumvented the statutory procedure outlined at Section 31 of the EMCA that requires that any complaints or allegations of environmental injury be presented at the Public Complaints Committee on Environment. The recent case of Salat Aden Mohamed & another v Noor Aden Abdullahi & 4 Others  eKLR is on all fours on this matter.
26.That the Salat Aden decision is very instructive and persuasive since very similar prayers are compared to the ones in this petition, ware made. The only distinction would be that in the present petition, the decision of the 1st respondent (NEMA) being an EIA licence, does exist and is exhibited by NEMA as Annexure MMW3. However, in both cases, the statutory procedures of visiting the Public Complaints Committee as well as the National Environment Tribunal have been circumvented.
27.That it’s Instructive too that an appeal/proceedings at the National Environment Tribunal touching on the same subject matter as this Petition - the felling and exportation of 8 baobab trees - was filed as NET 45 of 2022 by Omar Salim Mwakweli and Others vs NEMA and Georgy Gvasaliya.
28.It is the 1st respondent’s views that the notice of motion dated February 23, 2023 and the petition dated January 18, 2023 for the reasons as canvassed ought to be dismissed with costs.
by the Petitioner
30.Section 125, 126 and 129 of the Environmental Management and Co-ordination Act 1999 relied upon by the 1st Respondent relates to disputes under EMCA. The instances in which one may appeal to the National Environment Tribunal under Section 129 relate to licences and licensing and all end with the phrase 'under this Act or its regulations'. A literal interpretation of the phrase is that appeals only lie to the Tribunal if they emanate from the instances outlined under Section 129 under EMCA and its regulations. The petition and the application do not emanate from EMCA but from violations of Articles 10, 11, 42, 43, 60 and 69 of the Constitution.
31.The 1st Respondent also relies on Section 70 of the Forest Conservation and Management Act 2016 which relates to 'disputes that may arise in respect of forest conservation, management, utilization or conservation'. The petition and application do not entail such a dispute but rather focuses on violations of Articles 10, 11, 42, 43, 60 and 69 of the Constitution.
34.The Environment and Land Court has jurisdiction to hear all other environmental disputes falling outside the purview of Section 129(1) of EMCA. The ELC derives its jurisdiction from Article 162 (2) (b) of the Constitution which established the ELC to determine disputes relating to the environment and the use and occupation of, and title to, land. Further, Section 13 of the Environment and Land Court Act 2011 confers the ELC with the original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources. It also provides that the court shall have the jurisdiction to hear any other disputes relating to the environment and land.
35.Further, the Environment and Land Court is a Court of superior record with status of High Court hence, it has the jurisdiction to determine Constitutional Petitions. In Nakuru Constitutional Petition No 2/2013 Mohammed Said vs County Council of Nandi  eKLR, the Court sought to clear the ambiguity on the role of ELC in hearing and determining Constitutional Petitions in disputes relating to the right to a clean and healthy environment under Articles 42,69,70 of the Constitution of Kenya. The court in dismissing the preliminary objection challenging the jurisdiction of the ELC stated as follows:
38.The applicant locks horns with the 1st respondent’s assertion that there exists an appeal before the Tribunal on the issues before this court namely NET 45 of 2022 Omar Salim Mwakweli and Others V NEMA and Georgy Gvasaliya.
39.The alleged appeal before the Tribunal is also improperly pleaded seeing, as it is trite law that new issues cannot be raised through submissions. This position was affirmed in Clips Ltd V Brand imports (Africa Ltd formerly named Brand Imports Ltd  eKLR where the court stated:
40.The Petitioner therefore submits that the allegation of a pending appeal be disregarded and ignored. In any event, proceedings before the ELC and the Tribunal are different for the reason that they have different jurisdictions with the ELC dealing with the wider scope of constitutional violations relating to the environment whereas the scope of the Tribunal is limited to the disputes under Section 129 on licences and licensing under EMCA.
41.Whether the 1st Respondent has raised a proper preliminary objection, the Petitioner thinks otherwise and contends that a proper Preliminary Objection based on the celebrated case of Mukhisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd  has not been achieved as held by Law JA that a preliminary objection consists of a point of law which has been pleaded. The nature of a preliminary objection is such that when argued, may dispose of the suit. Law, JA gave examples of preliminary objections key amongst them being objection to the jurisdiction of the Court.
42.In the present case, the 1st Respondent has not challenged the jurisdiction of this court to entertain the petition but rather the application. No jurisdictional issue has been raised against the Petition. Consequently, the preliminary objection raised is not capable of disposing of the entire suit.
43.Whether costs should be awarded. The petitioner avers that it is well settled that on matters of public interest litigation such as this one, parties are not awarded costs citing the Supreme Court in Mumo Matemu V Trusted Society of Human Rights Alliance and 5 Others  eKLR and Jasbir Singh Rai and 3 Others V Tarlochan Singh Rai and 4 Others  eKLR where costs were declined because they were public interest matters.