Mueni & 2 others (Suing on their Own Behalf and on Behalf of Members of "Boyani Community") v Third Engineering Bureau of China City Group Limited & 3 others (Environment & Land Petition E001 of 2024) [2025] KEELC 4000 (KLR)
The bottom line
#The Environment and Land Court in Malindi confirmed it can hear a community's constitutional challenge to quarry operations, dismissing arguments that other laws blocked the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court lacks jurisdiction to hear the petition by virtue of the provisions of Section 129 (1), (2), (3) & (4) of the Environmental Management and Coordination Act (vesting jurisdiction in the National Environment Tribunal)
- 2.Whether this court lacks jurisdiction by virtue of Section 67 (b) of the Kenya Roads Act No. 2 of 2007 (statutory bar on the claim)
- 3.Who should bear the costs associated with the preliminary objections
Key legal issues
#Whether the National Environment Tribunal has exclusive jurisdiction under Section 129 of EMCA, ousting the ELC's jurisdiction over the petition
The ELC has jurisdiction; the petition is a constitutional petition asserting violations of rights under Articles 26, 27, 28, 40, 42, 43 and 45, for which the Tribunal cannot grant the remedies sought (declarations and compensation under Article 23(3)).
The court reviewed the reliefs sought and found the NET cannot fully address them because the claims concern constitutional rights violations arising from the 1st Respondent's operations, with remedies of declarations and compensation reserved to courts under Article 23(3). Relying on the Supreme Court's guidance in Nicholus, a multifaceted petition with a licensing element is not thereby barred from the ELC.
Whether Section 67(b) of the Kenya Roads Act bars the claim for failing to file within 12 months (or six months for continuing injury)
The claim is not statute-barred because the complained-of activities are ongoing and constitute continuing wrongs (continuous trespass), so the limitation period has not commenced or ceased.
The Petitioners argued the activities complained of are ongoing, making Section 67(b) inapplicable since the limitation period for a continuing injury runs from cessation. The court accepted that the grievances are still in progress and constitute continuing wrongs, accruing anew daily, so the petition was duly filed in accordance with Section 67(b).
Costs of the preliminary objections
The 1st and 3rd Respondents, having failed, bear the costs of the preliminary objections.
Having found the court seized of jurisdiction and the POs without merit, the court dismissed both POs and awarded costs, consistent with the principle that costs follow the event.
Legal principles established
#- A preliminary objection must raise a pure point of law, on the assumption that all pleaded facts are correct and with no facts needing ascertainment.
- Jurisdiction is foundational; a court must down tools the moment it finds it lacks jurisdiction.
- Section 129(3) of EMCA cannot be used to transfer specific powers given to the courts under the Constitution (Article 23(3) remedies) to the National Environment Tribunal.
- Where a claim is multifaceted and asserts constitutional violations, the existence of a licensing element within NET's remit does not oust the ELC's jurisdiction.
- Section 67(b) of the Kenya Roads Act does not defeat a claim based on continuous/continuing trespass, as the cause of action accrues anew daily.
Court orders
#- 1.The preliminary objections dated 11 November 2024 and 14 February 2025 are dismissed
- 2.The preliminary objections are dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 22(1) as read with Article 23(1) of the Constitution of Kenya 2010, and Articles 162(2)(b) and Section 13(1) and (2) of the Environment and Land Court Act
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 is the most adequate and eficacious forum to hear the matter; thus, the POs dated 11 November 2024 and 14 February 2025 are hereby dismissed with costs.
A review of the petition and sought reliefs shows that the National Environment Tribunal cannot fully address them.
The fact that licenses may well be a part of the appellant's petition does not in any way outlaw the hearing and determination of it by ELC.
the acts complained of constitute continuous trespass.
Issues in the judgment
#Inconsistent dating of the 1st Respondent's preliminary objection: paragraph 1 describes it as dated 14th February 2025, but the disposition refers to '11 November 2024 and 14 February 2025'.
The 3rd Respondent's preliminary objection date is given as 14th June 2024 in paragraph 1, but no such date appears in the final orders, which instead reference 11 November 2024.
The judgment excerpt does not state the parties' full names or the petition case number; parties are referred to only by role and number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mueni & 2 others (Suing on their Own Behalf and on Behalf of Members of "Boyani Community") v Third Engineering Bureau of China City Group Limited & 3 others (Environment & Land Petition E001 of 2024) [2025] KEELC 4000 (KLR)", Case Analysis (2025). Petition dated 28th March 2024 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4000/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.