Gemini Properties Limited v New Muthaiga Residents Association [2015] KEHC 1337 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  478    OF 2008

GEMINI PROPERTIES LIMITED.……………................................…. APPELLANT

VERSUS

NEW MUTHAIGA RESIDENTS ASSOCIATION………………………. RESPONDENT

RULING ON JURISDICTION

This appeal  arises  from the ruling of the Chairman and members of the National Environment Tribunal (NET) (Mr  Donald  Kaniaru, Ms Jane Dwasi, Mr Stanley  Waudo, Mr Joseph Njihia and Mr Tom Ojienda delivered  on 15th August 2008 in (NET)appeal No.  NET/24/2007.

The appeal  to the National Environmental  Tribunal by New Muthaiga  Residents Association followed  the Director  General NEMA’s approval and licensing  of the  2nd respondent ( Gemini Properties Ltd)  conversion of plot No.  LR 209/9295 in New Muthaiga Estate in Nairobi from residential to commercial centre by construction thereon of a shopping complex.  Among the grounds raised for opposing the approval and licensing of change of user are:

The area is an exclusive residential area and is inappropriate to have a commercial centre in its midst;

The proposed construction would increase noise pollution in a generally quiet and serene area;

The proposed construction would increase air pollution due to dust emanating from construction works and vehicular traffic during and after construction;

If not  properly managed, waste  water  generated  from the proposed  facility  would pollute  water  used by residents  of New Muthaiga  Estate for domestic purposes.

x………….the 1st respondent  allowed the erection  of four cellular  phone masts  in one  concentrated  area  on the plot  in question, which constitutes a health hazard  for residents  and school children due to  radioactive emission.

From the above particulars or grounds of appeal, it is clear that the claim herein relates to environment and the use of land.

That being the case, it is my humble view that this court (High court) is divested of jurisdiction to hear and determine such claims/appeals.

The jurisdiction thereof is vested in the Environment and Land Court, as established under Section 4 of the Environment and land Court Act, 2011 being a Superior Court of record with the status of the High Court.

The jurisdiction of that court is  contained  in Section 13(1) of the  Act, which confers both original and appellate  jurisdiction  on the court to hear  and determine  all  disputes  in accordance  with Article  162(2) (b)  of the Constitution and with the  provisions of  the Act   and any other  law applicable  in Kenya relating to  environment and land.

Section 2  thereof  is clear that  in  exercise  of its jurisdiction  as espoused  in Article  162(2) (b) of the Constitution, the court shall have power to hear and determine  disputes  relating to:

Environment planning  and protection, climate  issues, land use planning, title, tenure, boundaries, rates, rents, valuation, mining, minerals  and other natural  resources;

Any other dispute relating to environment and land.

The issue of change of user and the alleged pollution is a purely land use planning and environmental issue.

Consequently, albeit  this appeal was lodged  in 2008 before the  effective  date and before the  establishment  of the Environment and Land Court, this court could  only proceed  to hear and determine  this appeal in the transitional period pursuant  to  Part 5  Section 22 of the transitional  and consequential provisions of the Constitution on administration of justice, pending establishment  of the corresponding  court.

That transitional period  is also recognized  under Section 30 of the  Environment and  Land Court Act,2011.

However, the Environment and Land Court is now fully established and operationalised with the appointment of competent judges to preside over the court.  That being the case, and  with Article 165 (5)(b) of the Constitution expressly ousting  the  jurisdiction of the High Court from hearing  and determining  disputes  that fall within the jurisdiction of the Supreme Court  and the courts contemplated  in Article 162(2) of the Constitution, this court  holds that the transitional  period  is over and  I must  therefore  down my tools, for without  jurisdiction I can do no more than  refer this matter to  the appropriate  court as contemplated  in Section 30(1)(2) of the Environment and Land Court  for further  hearing and  determination.

I therefore  place this file (appeal ) before  the Environment and Land Court  Presiding Judge for further  directions  as to  its hearing and  disposal .

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 5th day of October 2015.

R.E. ABURILI

JUDGE