1. Introduction

The recent decision of the Environment and Land Court in Mohamed Said Ali Karungu & Raphael Mwandoe Nyiro v. National Environment Management Authority & Taifa Gas Investment SEZ Ltd (ELC Petition No. E006 of 2025, Mombasa) marks a decisive moment in the evolution of Kenya’s environmental jurisprudence.

Delivered by Hon. Justice Stephen Kibunja, the ruling does more than strike out a petition; it re-articulates the constitutional architecture of environmental adjudication and its intersection with national infrastructure development. By upholding a preliminary objection grounded on res judicata and the doctrine of exhaustion, the Court has sent a clear signal: the path to environmental justice must follow the statutory sequence under the Environmental Management and Coordination Act (EMCA) and not bypass it under the guise of constitutional litigation.

2. The Reassertion of Jurisdictional Boundaries

The Court’s central holding is doctrinally precise. It affirms that the Environment and Land Court (ELC), though endowed with constitutional jurisdiction under Article 162(2)(b), cannot be converted into a parallel licensing tribunal. Where a dispute has already traversed the statutory pathway, from NEMA approval, to appeal before the National Environment Tribunal (NET), to final determination, the ELC’s jurisdiction is only appellate, confined to points of law under Section 130 of EMCA.

This restores jurisdictional discipline in a field increasingly blurred by overlapping petitions. It reinforces that environmental justice is not an invitation to bypass procedural rigour, and that the Constitution is not a sanctuary for administrative dissatisfaction. In so holding, the Court protected the institutional integrity of Kenya’s environmental regulatory framework.

3. Res Judicata and the Public-Interest Litigant

Perhaps the most notable feature of this ruling is the expansive application of the res judicata doctrine. The Court held that although the petitioners were not named parties in the earlier NET Appeals Nos. 37, 41 and 46 of 2022, they were members of the same Likoni community whose representatives had already challenged the same EIA Licence No. NEMA/EIA/PSL/21998.

Relying on Explanation 6 to Section 7 of the Civil Procedure Act and the holding in Uhuru Highway Development Ltd v. Central Bank of Kenya & Others [1996] eKLR, the Court extended the doctrine to include persons litigating under a shared community interest or title. This approach elevates finality as a public policy imperative, ensuring that public-interest litigation does not degenerate into perpetual re-litigation by rotating petitioners or re-mandated NGOs.

For advocates, it carries an ethical caution: counsel cannot recycle previously adjudicated matters through new clients or constitutional language. The duty to the court now includes ensuring that environmental petitions are both procedurally novel and substantively distinct.

4. Deference to Technical Expertise and Regulatory Finality

The Court also gave practical content to the principle of regulatory finality. Taifa Gas had demonstrated compliance with every statutory requirement: submission of Terms of Reference, EIA studies, stakeholder consultations, issuance of licence, and periodic environmental audits. Both NEMA and the NET had confirmed due process. The Court declined to reopen those findings.

This judicial restraint signals respect for institutional competence. It re-centres technical regulators as the primary decision-makers in complex environmental and energy projects. The message is unmistakable: once a project has passed through lawful scrutiny, courts will not lightly disturb the equilibrium of approvals in the absence of fraud, illegality, or demonstrable procedural abuse.

For Kenya’s investment climate, especially under the Special Economic Zones Act, 2015, this represents a long-awaited assurance of predictability and continuity.

5. Procedural Discipline in Environmental Justice

By invoking the doctrine of exhaustion, Justice Kibunja reminded litigants that Article 48 (access to justice) is not a licence to ignore statutory architecture.

Section 9 of the Fair Administrative Action Act, 2015 codifies the rule that parties must exhaust available remedies before invoking judicial review or constitutional jurisdiction. The Court found that the petitioners had neither sought exemption under Section 9(4) nor demonstrated exceptional circumstances warranting direct recourse to the ELC.

The ruling, therefore, aligns environmental adjudication with the jurisprudence in International Centre for Public Policy and Conflict v. Attorney General and Diana Kethi Kilonzo v. IEBC, underscoring that constitutional litigation is a remedy of last resort, not first resort.

6. SEZ Governance and the Energy Transition Context

The implications of this ruling resonate beyond the immediate dispute. Taifa Gas operates within a Special Economic Zone (SEZ), a regime designed to catalyse industrialisation by simplifying approvals and attracting long-term capital. The Court’s recognition that SEZ projects, once lawfully licensed, are entitled to protection from repetitive litigation aligns judicial oversight with national policy.

For Kenya’s ongoing energy diversification and decarbonisation agenda, the ruling reinforces that strategic investments, whether in LPG import terminals, renewable energy facilities, or logistics corridors, cannot be perpetually hostage to procedural uncertainty.

It strikes a deliberate balance: environmental accountability without developmental paralysis.

7. Ethical and Strategic Lessons for Practitioners

The decision also speaks to the professional bar.

Environmental and constitutional practitioners must undertake due diligence on prior NET or ELC proceedings before filing new matters. Filing identical claims under different names may now expose counsel to findings of abuse of process.

It equally calls upon public-interest advocates to re-engineer strategy shifting from post-approval litigation to early participation in Environmental Impact Assessment (EIA) processes, where public consultation and scientific evidence can shape outcomes before projects crystallise.

8. Broader Policy Consequences

From a policy perspective, the ruling contributes to:

• Regulatory coherence: Aligning EMCA, the SEZ Act, and the Energy Act by discouraging parallel adjudicatory tracks.
• Investor confidence: Reinforcing that Kenya’s courts will uphold lawful approvals, a cornerstone of the rule of law.
• Judicial economy: Preventing multiple courts from revisiting issues already decided by expert tribunals.
• Predictable governance: Encouraging state agencies to coordinate environmental licensing within a unified procedural matrix.

9. Conclusion

The Karungu & Nyiro ruling is therefore not a mere procedural victory for Taifa Gas; it is a jurisprudential recalibration of how Kenya balances environmental rights with national development imperatives. It re-centres the rule of law, procedural fidelity, and institutional competence at the heart of environmental adjudication.

It affirms three enduring propositions:

1. Environmental litigation must respect statutory hierarchies; the path through NEMA and the NET is not optional.
2. Finality is a constitutional value; public interest does not license endless litigation.
3. Compliance is protection;n investors who follow the law earn judicial insulation.

Kenya’s environmental jurisprudence has entered a new phase, one in which sustainability and certainty are not adversaries, but co-equals in the pursuit of national progress.