The Supreme Court in ascertaining the position of judicial abstinence, as with judicial restraint also known as the Pullman doctrine in Benson Ambuti Adega & 2 Others vs Kibos Distillers Ltd & 5 Others [2020] eKLR upheld the Court of Appeal’s decision in finding that the lower court erred in law in finding that the Environment and Land Court [ELC] had jurisdiction simply because some of the payers in the Petition were outside the jurisdiction of the Tribunal or the National Environmental Complaints Committee.
The Court held that, though a Court may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, it should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism. Hence, the Ex parte Applicants ought to have invoked the jurisdiction of National Environment Tribunal under section 125 and 129 (3) of Environment Management and Coordination Act before moving the ELC.
As for the ELC it failed in adhering to the principle of exhaustion which provides for the need to explore all other available mechanisms in dispute resolution before proceeding to the Courts. The proper procedure as emancipated by the Supreme Court would have been to reserve the constitutional issues on the rights to a clean and healthy environment, pending the determination of the issue with regards to the issuance of EIA licenses at the Tribunal, thereby affording any aggrieved party the opportunity to appeal to the Court. It would then have determined the reserved issues, alongside any of the appealed matter, if at all, thus ensuring the parties right to a fair hearing under Article 50 of the Constitution was protected.
The Conclusion of it all was that, the ELC had usurped the jurisdiction of statutorily instituted and legally mandated bodies, to wit, the National Environmental Tribunal and the National Environmental Complaints Committee, by arrogating upon itself the jurisdiction to hear and determine issues that were not within its purview.