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Court of AppealPartially AllowedCivil Appeal 49 of 2016· [2022] KECA 861 (KLR)

Eaton Towers Kenya Limited v Kasing’a & 5 others

Court of Appeal
28 April 2022
4,927 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal threw out an environmental petition because the complainant skipped dedicated tribunals and went straight to court.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Nambuye, Karanja and Kiage, JJA) allowed an appeal by Eaton Towers Kenya Limited against a High Court (ELC) judgment that had cancelled the EIA licence and development permission for a telecommunications mast, ordered the mast pulled down, an environmental restoration order, and Kshs. 10,000 in recognition of the 1st respondent's infringed right to a clean and healthy environment. The appellant argued the petition was a disguised challenge to the EIA licence and development permission which should have gone to the National Environmental Tribunal and the Liaison Committee, that the precautionary principle was misapplied, and that unpleaded orders were granted. The Court distilled four issues but resolved the appeal on jurisdiction alone. It held that the 1st respondent had creatively couched procedural complaints as a constitutional petition when statutory forums were available and accessible; that the multifaceted nature of a petition cannot confer jurisdiction, citing Kibos Distillers; that the principle of avoidance is mandatory, not discretionary; and that jurisdictional procedures are not mere technicalities curable under Article 159. The Court set aside the judgment of the High Court in its entirety with no order as to costs, expressly declining to determine the remaining grounds. The judgment binds lower courts on the mandatory nature of the exhaustion and avoidance principles and the impermissibility of constitutionalising disputes that belong before statutory tribunals.

Key legal issues

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01

Jurisdiction and exhaustion of statutory remedies

Holding

The High Court/ELC ought not to have entertained the petition; the 1st respondent should have gone to the National Environmental Tribunal on the EIA licence and the Liaison Committee on the development approval.

Reasoning

The heart of the petition was a challenge to procedural issuance of the EIA licence and development permission, for which EMCA and the Physical and Land Use Act provide dedicated forums. The 1st respondent was not barred from those avenues; he skipped them for convenience. Constitutionalising such complaints promotes forum shopping and cannot confer jurisdiction.

p. 7
02

Principle of avoidance

Holding

Adherence to the principle of avoidance is mandatory, not discretionary; constitutional redress is a last resort.

Reasoning

The learned judge treated the choice between constitutional petition and statutory forums as a discretionary weighing exercise. The Court held this was error: where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved at all, citing Mwau and foreign authority.

p. 8
03

Article 159 and jurisdictional prerequisites

Holding

Jurisdiction-conferring procedures cannot be downgraded to technicalities curable under the overriding objective.

Reasoning

The judge below relied on Article 159 to justify hearing the petition despite non-exhaustion. The Court held that statutory channels allocating jurisdiction serve salutary purposes and go to the heart of a court's competence; they are not procedural technicalities that Article 159 can cure.

p. 9
04

First appellate court duty

Holding

As a first appellate court, the Court is enjoined to re-evaluate the entire evidence before deciding whether the trial judge's conclusions stand.

Reasoning

The Court invoked its standard first-appeal duty as captured in Robin Angus Paul v Miriam Hemed Kale, but disposed of the appeal on the preliminary jurisdictional question without re-evaluating the evidence on the other issues.

p. 6

Legal principles established

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  • The multifaceted nature of a petition is not a basis for a court to arrogate jurisdiction to itself; jurisdiction cannot be conferred by the art and craft of drafting pleadings.
  • The principle of avoidance is not discretionary; where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved.
  • Statutory procedures that bring matters within a court's jurisdiction are not mere technicalities curable by Article 159.
  • A litigant must exhaust available statutory dispute-resolution avenues before resorting to a constitutional petition, unless barred from pursuing them.

Court orders

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  1. 1.Appeal allowed on the foundational question of jurisdiction alone, without going into the other issues
  2. 2.Judgment of the High Court (ELC) set aside in its entirety
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 165(3)(a)
  • Constitution of Kenya, 2010Article 159
  • Environmental Management and Co-ordination Act, 1999section 2 and provisions establishing the National Environmental Tribunal
  • Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009general
  • Physical and Land Use Actprovisions on the Liaison Committee

Cases cited (12)

  • ANARITA KARIMI NJERU -VS- THE REPUBLIC
    (1976-1980) KLR 1272

    Standard for pleading constitutional violations with reasonable precision

  • KIBOS DISTILLERS LIMITED & 4 OTHERS -VS- BENSON AMBUTI ADEGA & 3 OTHERS
    [2020] eKLR

    Multifaceted pleadings cannot confer jurisdiction; promotes forum shopping

  • GABRIEL MUTAVA & 2 OTHERS -VS- MANAGING DIRECTOR KENYA PORTS AUTHORITY & ANOTHER
    [2016] eKLR

    First port of call should be suitable statutory forums; constitutional litigation not a panacea

  • BETHWELL ALLAN OMONDI OKAL -VS- TELKOM (K) LTD (FOUNDER) & 9 OTHERS
    [2017] eKLR

    Exhaustion of statutory dispute resolution organs before constitutional petition

  • ROYAL MEDIA SERVICES LIMITED -VS- ATTORNEY GENERAL
    [2018] eKLR

    Constitutional petition permissible where respondent bars pursuit of alternative avenues

  • JOHN HARUN MWAU -VS- PETER GASTROW & 3 OTHERS
    [2014] eKLR

    Principle of avoidance - Constitution invoked only when necessary

  • ASHWANDER V. TENNESSEE VALLEY AUTHORITY
    297 U.S. 288, 347 (1936)

    Avoidance doctrine - constitutional pronouncement only when necessary

  • S V. MHLUNGU
    1995 (3) SA 867 (CC)

    Avoidance doctrine support

  • ROBIN ANGUS PAUL & 2 OTHERS -VS- MIRIAM HEMED KALE
    [2019] eKLR

    Duty of first appellate court to re-evaluate evidence

  • OWNERS OF THE MOTOR VESSEL "LILLIAN S" -VS- CALTEX OIL (KENYA) LTD
    [1989] eKLR

    Jurisdiction is everything; a court without it must lay down its tools

  • ODD JOBS -VS- MUBEA
    (1970) EA 476

    Reliance by 1st respondent on orders arising from submissions and proceedings

  • Ken Kasinga -vs- Daniel Kiplagat Kirui & 5 others
    [2015] eKLR

    Cited by trial judge for multifaceted-claim jurisdiction; rejected as wrong exposition of law

On appeal from
High Court of Kenya at Nakuru (Environment and Land Court)
Petition No. 50 of 2013
Jurisdiction invoked
First appellate jurisdiction under Article 164 of the Constitution over the High Court/ELC; constitutional redress provisions considered under Articles 23 and 165(3)(a)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Eaton Towers Kenya Limited v Kasing’a & 5 others", Case Analysis (2022). Civil Appeal 49 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/861/eng@2022-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.