Maasai Mara Landowners Conservancy Limited & another v Losokwan Camp Limited (Land Case E010 of 2024) [2024] KEELC 4946 (KLR) (24 June 2024) (Ruling)
Neutral citation:
[2024] KEELC 4946 (KLR)
Republic of Kenya
Land Case E010 of 2024
CG Mbogo, J
June 24, 2024
Between
Maasai Mara Landowners Conservancy Limited
1st Plaintiff
Old Boma Limited
2nd Plaintiff
and
Losokwan Camp Limited
Defendant
Ruling
1.The defendant herein filed a Notice of Preliminary Objection dated 27th May, 2024 challenging the Notice of Motion Application dated 21st May, 2024 and the Plaint on the following grounds: -a.This honourable court is divested of jurisdiction to entertain the plaintiffs’ suit and motion dated 21st May, 2024 which were filed before this honourable court in breach of Sections 125 and 129 of the Environment Management and Coordination Act.b.The suit as lodged is incompetent and premature as the plaintiff has not exhausted the dispute resolution mechanism established under Section 32 (a)(i) and 125 of the Environment Management and Coordination Act EMCA, and hence the ELC court’s jurisdiction not invoked in its appellate jurisdiction is forums non conveniens ab initio.
2.This notice of preliminary objection was canvassed by way of written submissions. The defendant filed its written submissions dated 27th May, 2024 where it raised two issues for determination as follows: -a.Whether this honourable court has jurisdiction to entertain this suit and motion.b.Who should bear the costs of the proceedings.
3.On the first issue, and while relying on the cases of Kakuta Maimai Hamisi versus Peris Pesi Tobiko & 2 Others [2013] eKLR and Kibos Distillers Limited & 4 Others versus Benson Ambuti Adega & 3 Others [2020] eKLR, the defendant submitted that the plaintiffs have lodged their claim in the wrong forum as clearly pleaded in paragraph 8 and 9 of the plaint.
4.Further, the defendant submitted that the doctrine of exhaustion mandates the plaintiffs to exhaust the dispute resolution mechanism provided by the Environmental Management & Coordination Act before resorting to this court. Reliance was placed on the cases of Speaker of National Assembly versus Karume [1992] KLR, Geoffrey Muthinja & Another versus Samuel Muguna Henry & 1756 Others [2015] eKLR, and William Odhiambo Ramogi & 3 Others versus Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested parties) [2020] eKLR. The defendant submitted that the plaintiffs are bound to invoke the laid down processes in the Environmental Management & Coordination Act regarding the wildlife corridor that is allegedly being interfered with pursuant to Section 129 (1) and (2) of the Act.
5.The defendant while further relying on the case of National Environmental Tribunal versus Overlook Management Limited & 5 Others [2019] eKLR and Borbor & 2 Others versus National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR) (28 July 2022) (Ruling) submitted that this court’s sole jurisdictional basis under the Act would be under Section 130 as a second appellate court. To buttress on this submission, the defendant relied on the cases of Bridge Gate Holding Limited versus National Environment Management Authority & Another [2015] eKLR, Samson Chembe Vuko versus Nelson Kilumo & 2 Others [2016] eKLR, Michael Moragia Nyachae versus Baddies Kisii Limited & 2 Others [2016] eKLR, Orata International Limited versus National Environment Management Authority [2019] eKLR, Joseph Ojwang’ Oundo versus National Environment Management Authority & 8 Others [2015] eKLR and International Centre for Policy and Conflict & 5 Others versus Attorney General & 5 Others [2013] eKLR.
6.The defendant submitted that the issues raised in this suit fall under the ambit of the Public Complaints Committee established under Section 31 of the Act, with appeals lying to the National Environmental Tribunal. Reliance was placed in the case of Gitei & 18 Others versus Kenya Rural Roads Authority & Another (ELC E008 of 2023) [2024] KEELC 3322 (KLR) (24 April 2024) (Ruling).
7.The defendant further submitted that Section 78 of the Physical and Land Use Planning Act provides for an appeal avenue before the County Physical and Land use Planning Liaison Committee clothed with the jurisdiction to hear appeals against decisions made by the planning authority, and in this case, no complaint was made by the plaintiffs to the Narok County under the said legislation. To buttress on this submission, the defendant relied on the case of Whitehorse Investments Limited versus Nairobi City County [2019] eKLR.
8.On the second issue, the defendant submitted that the suit and the notice of motion application herein fails and should be dismissed with costs.
9.The plaintiffs did not file their written submissions. Be that as it may, I have considered the preliminary objection and the written submissions filed by the defendant herein. I am of the view that the issue for determination is whether this court has jurisdiction to hear this suit.
10.The plaintiffs filed a plaint dated 21st May, 2024 seeking the following orders: -1.A declaration that the defendant has no right whatsoever to erect or construct a camp on the said parcel of land which is a wildlife corridor/habitat.2.An eviction order against the defendant himself or his agents or servants.3.A permanent order of injunction to restrain the defendant by himself, his agent or servant from entering upon, remaining upon or in any way interfering with the plaintiffs use and occupation of the suit plots.4.Cost of the suit.5.Any other relief that this honourable court may deem fit.
11.In the plaint, the plaintiffs pleaded in paragraph 6 as follows: -
12.Paragraph 7 reads: -
13.Paragraph 8 states: -
14.Paragraph 9 reads further: -
15.The plaintiffs pleaded particulars of threat to wildlife and trespass under paragraph 10 as follows: -
16.In their notice of motion application, the plaintiffs sought a temporary order of injunction preventing the erection and construction of a camp by Losokwan Camp Limited within the wildlife corridor being set up by the respondent in Lemek Conservancy. The application is supported by the of Robert Nabaala, the secretary of the 1st plaintiff. In paragraph 3 of his supporting affidavit, the 1st plaintiff deposed that the conservancy has a working plan approved by the members and which plan is used by NEMA to approve camp construction. In paragraph 6, the 1st plaintiff deposed that they reported the matter to the National Environment Authority (NEMA) who released a stop letter to the defendant. He deposed that the defendant halted the said construction for some time only to resurface 2 days later and undertake construction without the approval of the conservancy and NEMA which makes the said construction an illegality and an obstruction to wildlife migration and its habitat.
17.A Preliminary Objection was described in the Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd (1969) EA 696 to mean: -per Law, JAFurther Sir Charles Newbold, P stated that: -
18.This court having made a finding on the description of a preliminary objection, it is not in doubt that a preliminary objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct.
19.However, it cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion. In the case of Quick Enterprises Ltd Vs Kenya Railways Corporation, Kisumu HCCC No.22 of 1999, the court held that: -
20.It is also this court’s opinion that in determining a preliminary objection, the court will consider that the preliminary objection must stem from the pleadings and raise pure point of law. See the case of Avtar Singh Bhamra & Another versus Oriental Commercial Bank, Kisumu HCCC No.53 of 2004, where the court held that: -
21.In this case, I am satisfied that the preliminary objection raised by the defendant raises a pure point of law, and which can be deduced from the pleadings.
22.Having said the above, and from the pleadings, it can be seen that the plaintiffs herein are displeased with the ongoing construction by the defendant whom they claim has defied the directives by NEMA and which is a threat to wildlife conservation as the construction is along the wildlife corridor.
23.The Supreme Court in Samuel Kamau Macharia and another v Kenya Commercial Bank and 2 Others, Application No. 2 of 2011, pronounced itself on jurisdiction thus:
24.Section 32 (a) (i) of the Environmental Management and Coordination Act provides that: -
25.Further, section 129 of the Environmental Management and Coordination Act states;
26.The above provision of the law provides an avenue for any party to challenge any action that is against the directives issued by National Environment Management Authority. Upon analysis of the plaint and particularly paragraphs 6 to10, the plaintiffs in this case should have first and foremost lodge a complaint with the body mandated to do so, which is NEMA before coming to this court. This court would then only exercise its appellate jurisdiction once the parties have exhausted the revenues available for resolution of their dispute.
27.Arising from the above, the notice of preliminary objection dated 27th May, 2024 is hereby upheld. This court lacks jurisdiction to hear and determine the instant application and suit, the same is hereby struck out with costs to the defendant. It is so ordered.
DATED, SIGNED & DELIVERED VIA EMAIL THIS 24TH DAY OF JUNE, 2024.HON. MBOGO C.G.JUDGE