Automated Summary
Key Facts
The Applicant, Rahim Dharani, sought injunctive orders against Canaan Developers Limited and others to halt construction on Land Reference 205/76 without procuring Environment Impact Assessment (EIA) licenses, change of user approvals, and other required permits under EMCA 1999 and the Physical and Land Use Planning Act 2019. The 1st and 2nd Respondents contested jurisdiction and argued the case should be resolved via statutory bodies (National Environment Tribunal, County Physical Liaison Committee). The court dismissed jurisdictional objections, finding no evidence of issued licenses or approvals, and ruled the Applicant demonstrated a prima facie case for conservatory orders to protect his right to a clean and healthy environment under Article 42 of the Constitution.
Issues
- Whether the instant suit is defeated by the Doctrine of Exhaustion.
- Whether the Honorable court is seized and/or possessed of the requisite Jurisdiction to entertain the subject suit or otherwise.
- Whether the Applicant herein has established and/or demonstrated the requisite ingredients to warrant the issuance of the Conservatory/ Injunctive orders sought or otherwise.
Holdings
- The court found the Doctrine of Exhaustion inapplicable, as no decisions have been made by the statutory bodies under EMCA or the Physical and Land Use Planning Act, allowing the Applicant to directly approach the Environment and Land Court under constitutional provisions.
- The court dismissed the preliminary objection contesting its jurisdiction, holding that it is seized of the requisite jurisdiction to entertain the suit as no decisions, licenses, or development approvals have been issued by NEMA or the Planning Authority to trigger the jurisdiction of other statutory bodies.
- The court granted the conservatory/injunctive orders, concluding the Applicant demonstrated a prima facie case of environmental harm and likelihood of success in protecting their constitutional right to a clean and healthy environment.
Remedies
The court granted injunctive orders restraining the 1st and 2nd Respondents from proceeding with construction on Land Reference Number 205/76 (original No. 205/1615) pending the receipt of all Development Permissions and Licenses. Additionally, the court ordered the Kileleshwa Police Station or a nearer police station to assist in compliance with these orders.
Legal Principles
- The court applied Section 112 of the Evidence Act, which states that where facts are within a party's special knowledge, the burden of proof lies with that party. This was used to determine that the 1st and 2nd Respondents had the burden to demonstrate they obtained necessary licenses and approvals for the project.
- The Doctrine of Exhaustion was raised as a jurisdictional challenge, but the court found it inapplicable since no decisions or approvals from statutory bodies (NEMA or Nairobi County) had been made, leaving no dispute resolution mechanism for the Applicant to exhaust.
- The court granted interim injunctive orders based on the Applicant's prima facie case of environmental harm, citing principles from multiple judgments (e.g., Uhuru Secondary School vs. City County Director of Education) that require demonstrating a likelihood of success and potential prejudice without the order.
Precedent Name
- Phoenix of E.A. Assurance Company Limited versus S. M. Thiga t/a Newspaper Service
- Owners of Motor Vessel Lilian S versus Caltex Oil (Kenya) Limited
- Board of Management of Uhuru Secondary School versus City County Director of Education & 2 others
- Martin Nyaga Wambora -v- Speaker of the County Assembly of Embu & 3 Others
- Gatirau Peter Munya -v- Dickson Mwenda Githinji & 2 Others
- Centre for Rights Education and Awareness and 7 Others -V- The Attorney General
- Micro Small Enterprises Association of Kenya (Mombasa Branch) -v- Mombasa County Government
- Jimaldin Adan Ahmed & 10 Others -V- Ali Ibrahim Roba and 2 Others
- Muslims for Human Rights [MUHURI] & Others -V- Attorney General & Others
- S K Macharia versus Kenya Commercial Bank Ltd & Another
Cited Statute
- Environment Management and Coordination Act, 1999
- Evidence Act, Chapter 80
- Constitution of Kenya, 2010
- Environment and Land Court Act, 2011
- Physical and Land Use Planning Act, 2019
Judge Name
Oguttu Mboya
Passage Text
- I find and hold that the Preliminary objection disputing and contesting the Jurisdiction of this Honourable court is bereft/ devoid of merits; and hence same is dismissed.
- I come to the conclusion that the Doctrine of Exhaustion... is not applicable to the dispute beforehand and in any event at this juncture.
- the Applicant has met the requisite threshold to warrant the intervention by the court and essentially to issue the orders sought.