Kenya Towers Ltd v Omboga & 7 others (Civil Appeal 422 of 2019) [2025] KECA 686 (KLR)
The bottom line
#Kenya's Court of Appeal set aside an Environment and Land Court ruling because the judge never addressed a raised jurisdiction challenge; the dispute now returns to Machakos for a fresh decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Environment and Land Court had jurisdiction to hear and determine the 1st-4th respondents' constitutional petition, or whether the National Environment Tribunal had original jurisdiction over grievances arising from the issuance of an EIA licence
- 2.Whether the learned Judge erred in failing to determine the question of jurisdiction raised before the trial court
- 3.Whether there was adequate public participation before commencement of the telecommunication tower project
- 4.Whether the trial court correctly found a violation of the 1st-4th respondents' right to a clean and healthy environment
Key legal issues
#Duty of first appellate court where the trial court failed to determine a threshold jurisdictional question
Where the court below never addressed a jurisdictional issue raised before it, the appellate court should not determine that issue itself but should set aside the judgment and remit the file for the lower court to pronounce itself on jurisdiction first
The Court noted that the 8th and 6th respondents had challenged the trial court's jurisdiction, but the learned Judge's judgment never addressed the point, which fell through the cracks. Although the Court of Appeal had jurisdiction to determine the issue, doing so would deprive aggrieved parties of a first determination below and a second bite at the cherry on appeal. Following Supreme Court authority in Geo Chem and Nyutu Agrovet, the proper course was remittal to the ELC for a priority determination of jurisdiction.
Primacy of jurisdiction in judicial decision-making
Jurisdiction is foundational; any determination made by a court without jurisdiction is a nullity and liable to be set aside as of right
Relying on the Owners of the Motor Vessel 'Lillian S' principle as restated in this judgment, the Court reaffirmed that without jurisdiction a court's decision is null and void ab initio. This underscored why the unresolved jurisdictional question could not be left undetermined and why the ELC judgment had to be set aside pending a jurisdictional ruling.
Public participation standards for low-risk EIA project report projects (argued but not determined)
Not determined; the issue was left open pending the ELC's jurisdictional determination
The appellant argued that the project required only a project report under section 58 EMCA and regulation 17 of the 2003 Regulations, and that the Judge wrongly imposed full EIA study report participation standards. The respondents invoked Article 69. The Court did not resolve these merits because the jurisdictional question had to be determined first by the trial court.
Legal principles established
#- An appellate court can only properly exercise its appellate jurisdiction on an issue where the court appealed from has rendered itself; where the lower court failed to determine a jurisdictional question, the matter must be remitted to that court for determination before a substantive appeal lies
- Where an appellate court holds that a lower court wrongly declined to determine a matter in the mistaken belief that it lacks jurisdiction, the matter must be remitted to the lower court, and only after compliance would a substantive appeal lie
- Jurisdiction is everything; a decision of a court without jurisdiction is null and void ab initio and will be set aside ex debito justitiae
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the Environment and Land Court is set aside
- 3.The file is remitted to the ELC for determination of the question whether it had jurisdiction to hear and determine the 1st-4th respondents' petition
- 4.The Judge presiding over the ELC at Machakos, or any other Judge appointed by him or her, to determine the issue of jurisdiction expeditiously and on priority based on the material on record
- 5.Each party to meet their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Not stated in judgment
- Jurisdiction invoked
- Article 164(3) of the Constitution (appeals from the Environment and Land Court)
Relief refused
#The appellant's request that the appeal be allowed outright on the merits (public participation, alleged rights violations)
The Court declined to determine the substantive issues because the trial Judge never addressed the question of jurisdiction, which had to be resolved first by the court below
Costs
Each party to bear their own costs of the appeal: "the appropriate order is to direct the parties to meet their own costs of the appeal"
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court can only properly exercise its appellate jurisdiction where the Court appealed from has rendered itself on the issue that is the subject of the appeal.
our jurisdiction can only be properly engaged where the court appealed from has addressed the issue
we find that the appeal is for allowing, the judgment of the ELC is set aside and the file remitted to that court for determination of the question as to whether it had jurisdiction to hear and determine the 1st–4th respondents’ petition
the appropriate order is to direct the parties to meet their own costs of the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Towers Ltd v Omboga & 7 others (Civil Appeal 422 of 2019) [2025] KECA 686 (KLR)", Case Analysis (2025). Not stated in judgment (first appeal to the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/686/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.