1.The petitioner vide Notice of Motion dated May 17, 2022prays for the following orders;
2.The application was supported by the affidavit of Edward Kimani Nganga. The gist of the application by the petitioners is that the 1st respondent’s construction of a multi dwelling development in a low- density residential area is a violation of their right to a clean and healthy environment. The Petitioners aver that an enforcement notice that had earlier been issued in respect of the construction was irregularly withdrawn and amounted to a violation of their rights.
3.The first respondent filed a replying affidavit in which shedetailed the process she went through to acquire the necessary approvals. She urged the court to dismiss the Applicants’ application.
4.The application was opposed by the 4th respondent who filed grounds of opposition in which they stated that the Physical and Land Use Planning Act provides a forum for resolving disputes of this nature. The 4th Respondent further filed submissions in which they deponed that they had carried out their role as assigned by the law. They insisted that the duty of granting planning permission does not belong to them. The 5th respondent on their part filed a replying affidavit in which they detailed the process the approvals went through before the construction was approved.
5.After parties had filed submissions in respect of the application dated May 17, 2022 and a Ruling date set, the 1st respondent filed an application dated May 2, 2023 wherein the 1st Respondent seeks the following order:
6.The third respondent filed a replying affidavit in which it supported the application dated May 2, 2023application. The 3rd respondent argues that the court has no jurisdiction to hear the matter.
7.The 4th respondent also filed a replying affidavit in which they supported the application by the 1st respondent.
8.The application was heard and the 1st respondent allowed to orally address the court on the preliminary objection. The grounds raised in the preliminary objection are that;
9.The court will determine the issues raised in the preliminary objection together with the application. In this regard, the court has identified the following issues for determination;
Whether the court lacks jurisdiction to preside over the suit
10.The Environment and Land Court in Kenya is a court with equal status with the High court established by article 162 (b) of the Constitution of Kenya under the provision of article 162 2(b). From the preamble of the ELC Act, the jurisdiction of the court is defined as “a Superior court to hear and determine disputes relating to the environment and the use and occupation of, and the titles to, land and to make provisions for its jurisdiction functions and powers and for connected purposes”.
11.Section 13(2) of the Environment and Land Act gives the powers of the court as provided under article 162(2) (b) of the Constitution. This powers include but are not limited to disputes;
12.Subsection 3 of the Environment and Land Court states “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”.
14.The courts including this court have clearly stated that matters which should be heard by other entities should be handled by the bodies that have been granted jurisdiction to do so. In the case of Benard Ambuti Andega & 2 others vs Kibos Distillers Ltd and 5 others( 2020) eKLR the Supreme Court restated the importance of a court exercising jurisdiction strictly in accordance to the law:- “This principle has been replicated in a plethora of determinations by this court, of common cause being that, a court, even this court, cannot arrogate itself jurisdiction through crafts of interpretation (see Interim Independent Electoral Commission Constitutional (Advisory Opinion) Application No. 2 of 2011) and a court ought to exercise its powers strictly within the jurisdictional limits (Peter Oduor Ngoge v. Francis Ole Kaparo & 5 others (supra)).”
15.The issue then is whether as drawn the petition is asking this court to adjudicate over a dispute which should statutorily be heard by another body. I have looked at the petition and note that in the petition the petitioners claim their rights have been violated by the Respondents handling of this matter. This is an issue that cannot be heard in the Tribunal or in the Physical Liaison Committee. As such the facts in this case are different from the case of Samora Machel Sikali vs NEMA and 2 others cited by counsel for the respondent wherein the prayers that were sought were exactly the prayers that would have been addressed at the tribunal. I therefore find that the court has jurisdiction to hear the matter.
Whether the suit offends the mandatory provisions of section 6 of the Civil Procedure Act.
18.The three elements that must be proved to establish a matter is sub judice are;
19.Both parties have alluded to the fact that there is a pending case in court that is Elc civil suit no 023 of 2022 Monicah Nyakiringa Ndindiri vs Dr Munene Irimu & 3 others. The parties are the same as the petitioner herein is the defendant in the previous suit and the respondent herein is the plaintiff.
20.The issues in both suits center on construction works on Lr Nairobi Block 110/425. The substance of the suit is similar to the earlier suit. The basic purpose and the underlying object of sub judice is to prevent the courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel cases in respect of same cause of action, same subject matter and the same relief. This is to ensure parties don’t abuse the discretionary power to institute suits and place courts at a position where they can give contradictory findings in respect of the same set of facts. It is also aimed at preventing multiplicity of proceedings.
21.In view of the above and to reduce the spectre of two courts possibly issuing contradictory orders, I hereby order that in line with the advise given by the Supreme Court in the Kenya National Human Rights Commission case supra, this matter be stayed until the hearing and determination of ELC 023 of 2022.