Environmental Case Law Index

The court considered an appeal against the first respondent’s decision to approve the second respondent’s construction, of a light industry, namely a metal fabricating workshop. 

The appellants argued that the approval was granted without public consultation and that the construction would interfere with their quiet occupation of their residences. They alleged that the construction would produce noise, emit fumes and encourage the setting up of other industries in a high class residential area. The first respondent argued that this claim was not one for noise or air pollution, but construction, and it did not fall within the scope of its functions but that of the municipal council. The second respondent argued that all relevant consultations had taken place prior to the approval of the environmental impact assessment (EIA) project report.

The tribunal considered the grounds of appeal and observed that the purpose of the EIA process under the act was to assess the likely, significant impacts of a proposed development project on the environment. It stated that the assessment included air quality, water quality, traffic, noise, and other features of the environment but these considerations were not affected by whether an area is designated as a residential area.

The tribunal held that, there was no evidence to show that the second respondent’s development, would adversely impact on the environment, in the area, in ways that could not be mitigated by the measures that had been proposed by the second respondent in the EIA report. 

Accordingly, the appeal was dismissed.

This was an application for a temporary injunction to restrain the defendant from developing the land until it obtained a positive environmental impact assessment, causing excessive noise and dust pollution from his property.

The applicant contended that the defendant was interfering with its right to a clean, safe and secure environment and, that the plaintiff’s tenants were unable to occupy the plaintiff’s premises due to nuisance and pollution on the defendant’s property.

The court determined whether the plaintiff had the necessary locus standi.

The court noted that non-compliance of statutory provisions or conditions made there were of a public nature and could have been dealt with by reporting to the Nairobi City Council officials,and the Commissioner of Lands. It was further noted that the grievances on non-compliance with provisions relating to environmental impact assessments should have been dealt with by the National Environmental Management Authority. For these reasons, the court held that the plaintiff lacked locus standi to institute the suit. Consequently, the application was dismissed with costs.

This was a judicial review application against the decision of the respondent to approve the alteration of use of the suit land from residential to office premises. The applicants sought orders of certiorari quashing the decision and prohibition, prohibiting the user from further excavation and construction on the land as well mandamus to compel the respondents to exercise its statutory duty in ensuring no further excavation and construction is done.

The court found that applications for judicial review were brought in the name of the Republic, since a judicial review is a mechanic whereby the state checks on the excesses of its officers and public bodies in performance of their administrative duties. The court noted that the application was not brought in the name of the republic and held that the case was not properly instituted.

Additionally, it was found that all parties affected by the judicial review proceedings such as National Environment Management Authority (NEMA) were not served in accordance with Order 53 r 3(2) of the Civil Procedure Rules which was fatal to the application. As such, although there was no evidence of compliance with s 59 of the Environmental Management and Coordination Act 1999 as well as regulation 17 of the Environmental (Impact Assessment and Audit) Regulations 2003 by NEMA and the user, court could not make any finding as to do so would amount to condemning NEMA unheard.

Accordingly, the application was struck out.

The plaintiff sought orders that it did not owe the defendant for any service, and for a permanent injunction restraining the defendant from interfering with or disconnecting the plaintiff’s water system connected to its borehole due to an outstanding water bill.

The court considered whether it had jurisdiction to hear and determine this suit and application. The provisions of s 85 of the Water Act show that the jurisdiction of the Water Appeals Board is two-fold: first is to hear appeals from decisions and orders of the Water Resources Management Authority, the minister, or the Water Services Regulatory Board concerning a permit or licence. The second jurisdiction of the Water Appeals Board is as is conferred by any law. There was no decision or order on a permit or licence being appealed in this suit and application. Accordingly, the court found that this dispute is not envisaged by s 85(1).

Furthermore, s 85(2) showed that the additional jurisdiction granted to the Water Appeals Board was in fact limited, and it did not have jurisdiction to determine all disputes under the act, but only those disputes where jurisdiction was conferred on it by the Water Act or any other act. No such law was cited by the defendant, to warrant the application of s 85(2). Therefore, the court found that s 85 did not apply to the facts of this suit and application, and that it, therefore, had jurisdiction to determine the matter.

Preliminary objection dismissed.

This was an appeal from a decision in an application for judicial review. The appellant was aggrieved by the lower court’s finding that the appellant was not entitled to the orders sought for failure to disclose that an appellate procedure existed under s 129 of the Environmental and Management Co-ordination Act 1999 (EMCA) and not demonstrating why judicial review was preferred to an appeal to the National Environmental Tribunal under the act, upon being dissatisfied with the National Environmental Management Authority’s (NEMA) decisions. 

NEMA had ordered the appellant to conduct a fresh Environmental Impact Assessment (EIA) under s 138 of the EMCA and to cease construction on the suit land.

The court determined whether the trial judge erred in finding that the appellant failed to demonstrate that judicial review was more suitable than an appeal to the tribunal.

The court held that the trial judge arrived at the right conclusion. The court applied the rule that, where an alternative remedy such as a statutory appeal procedure existed, judicial review can only be granted in exceptional circumstances. The court noted that the appellant failed to demonstrate these exceptional circumstances and should have made an appeal to the tribunal instead.

The court also found that public participation is a crucial aspect in environmental matters. The court noted that the fresh EIA as ordered by NEMA would give the appellant an opportunity to ensure public participation which had been ignored in the first EIA.

Accordingly, the appeal was dismissed. 

This was an appeal against the decision of the respondents refusing to issue an Environmental Impact Assessment (EIA) Licence for the appellants’ housing project. The appellants asked the tribunal to set aside the decision and award costs of the appeal.

The respondents argued that they had received strong objections from members of the local community since the project was in a wildlife migratory corridor and dispersal area. 

The tribunal determined whether the respondents were justified in their decision, subject to the objections, without considering if the objectives of the project could be met in absence of the project. The tribunal noted that the objecting stakeholders also found the project to be worthwhile. The tribunal found that the respondents failed by ascertaining that the views of the objecting stakeholders expressed the views of a significant section of the local community. The tribunal also found that the respondents failed to demonstrate that the potential adverse impacts could not be mitigated.

Based on these findings, the tribunal unanimously set aside the respondents’ decision and issued an EIA licence for the appellants’ project but on several conditions

The court considered and application for an injunction to restrain the defendant from directing storm and waste water into the plaintiff’s dam, or into the neighboring dam. 

The defendant had acceded to a request by the members of the community to desilt the dam at the primary school, but as the plaintiff submitted, had failed to conduct an environmental impact assessment before undertaking the rehabilitation of the dam. Further, that the storm water from the defendant’s farm had spilled over to the dam in her parcel of land, thereby polluting it and infringing her right to live in a clean environment. 

The issue for determination by this court was whether the plaintiff had established a prima facie case to enable the court to grant her the order of injunction sought.

The court held that the defendant undertook the project before seeking the authority of the National Environmental Management Authority and had therefore not consulted with all parties likely to be affected by the dam in co-ordination with the NEMA, before rehabilitating the dam. Therefore, the defendant breached the law by channeling storm water into the neighboring dam, without first complying with the provisions of the Environmental Management Act and that the plaintiff was within her rights to seek an injunction.

Application successful. 

The court considered an appeal against the condition attached by the respondent, to its approval of a housing project. 

The appellant intended to build a seven storey building, but the respondent restricted it to four. The appellant contended that the limitation placed on the number of storeys and refusal to allow construction for residential floors, below ground level, was unlawful, which had already been approved by the city council. 

Upon request to the tribunal, residents of the area were enjoined to the appeal as interested parties, arguing that the appellant’s development did not respect the stipulated environment, and planning regulations, that permitted only a maximum of four storey buildings in Zone 4, where the proposed construction was located.

The tribunal considered whether the limitations placed on the construction were justified. It held that the respondent had the authority to impose conditions that it deemed necessary to prevent and/or reduce negative environmental impacts that might result from an activity, and therefore had the lawful authority to regulate the appellant’s activity.

Under the Environmental Management and Coordination Act (EMCA) and the regulations made under it, the respondent’s authority superseded that of the city council and any action the Council may have taken regarding the proposed development. The tribunal found that the city council’s approval was not lawful. Accordingly, the appeal was dismissed.

The court considered an application declaring that the applicants right to life had been contravened by forcible eviction, as well as their right to protection of the law. 

The applicants averred that they had resided and carried on farming on the land from which they were evicted for 61 years. After the land had been degazetted for settlement by Gazette Notices, the applicants claimed that their subsequent eviction was an infringement of their constitutional rights.

The Applicants claimed to reside and possess the land in dispute but did not lay any credible foundation to that claim. The only document they placed before the court to support their claim was what was described as “The fact-finding Report of Mr Cheruiyot Kiplangat.” The said person was not known to this court and the court was not told what authority he had, nor his competence to make the report.

The court held that the report had no legal basis and was to be rejected. As the application was substantially based on the fact that the appellants had wrongly been evicted from the land, to which they purported to lay a stake, the court found that their reference had automatically failed, based on the finding that the fact-finding report they relied on had no legal authority.

Reference dismissed.

This was an application for a temporary injunction to restrain the defendant from cutting down trees, felling logs or dealing in whatever manner with the plaintiff’s land.

The plaintiff contended that the respondent had committed trespass and malicious damage to the property on his land. On the other hand, the defendant argued that it was not the registered owner of the land but had entered into an agreement with the government to harvest forest produce in government forests in exchange for royalties.

The court found that the plaintiff was the registered owner of the land and that the defendant lacked the capacity to question the validity of the plaintiff’s ownership. 

It was further held that the plaintiff had established the requirements for an injunction. The plaintiff established a prima facie case with a likelihood of success against the defendant. Further, that if the relief was not granted the plaintiff would suffer irreparable loss as all the trees on his land would be cut down.  

Accordingly, the application succeeded with costs to the respondents. The court issued the injunction and directed the applicant to mark out the boundaries of his land so that the respondent would excluded from its operations. 

This was a review against the respondent’s decisions to set apart land on Funzi Island and grant registration titles to Pati Limited. The applicant prayed for prohibition and certiorari orders since the respondent made the decisions in excess of its jurisdiction and power. 

The applicant argued that the land in dispute was forest land, and that no allotment could have legally taken place on the land unless there was a declaration that it had ceased to be forest land. The court found that when the proceedings commenced, it was assumed that the land was trust land, and despite argument, the applicant failed to adduce enough evidence to prove that the land was forest land. The land was thus declared to be trust land.

Secondly on the applicant’s disputed locus standi, the court found that the applicant’s properties were separated by about 200 metres from the disputed property. Further, the court found that even if the land was forest land, only the authorities in the Ministry in charge of the forest lands had the capacity to defend it. Consequently, it was held that the applicants lacked the requisite locus standi.

Finally, the court found that the respondent complied with the requirements in the Trust Act and dismissed the orders prayed for.

Accordingly, the application was dismissed.