The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-area expert postgraduate students from the University of Cape Town.
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The court considered an application for the ejectment of the respondent from the applicant’s premises.
The respondent was a sublease on property leased by the applicant. The area was subsequently declared a development in terms of the Land Act of 1979. The respondent had earlier applied for the setting aside of the declaration, which application was unsuccessful.
The court distinguished several cases that supported the view that in ejectment matters, courts should not quickly order the ejectment of a respondent who is carrying out business on the land.
The court found that the declaration of the area into a development, and the subsequent publication in the government gazette all supported the view that development had to continue.
The court further balanced the costs incurred by the applicants, the benefits of the development to the public and the fact that the applicant offered the respondents space in the completed development to support that the respondent had to vacate the premises.
The court ordered the respondent to vacate and to pay the costs of the application.
The court considered an application declaring the suspension and non-renewal of the licence by the respondent, null and void. The applicant was further seeking an order compelling the respondent to pay damages incurred as a result of the suspension.
The court was faced with the question of how a court must approach cases brought through motion proceedings, which require oral evidence to be heard..
The court pointed out that while the suspension and non-renewal of the licence could be decided on motion proceedings, the application for damages required oral evidence.
The court found that damages require proof and therefore cannot be decided on motion proceedings.
The court came to decision that the matter be referred to trial and all affidavits and depositions which formed part of the application be used as pleadings in the action.
The court postponed the issue of costs, until the trial.
This appeal arose from a rule nisi application that required the appellant to justify why an interdict should not be issued against him for the unlawful use of the respondent’s property.
The respondent instituted interdict proceedings when the appellant continued to use the disputed property after a default judgment that reinstated a previous judgment in his favor.
The court noted that interdict applications require proof of a clear right, an injury and the absence of any other satisfactory remedy.
The appellant submitted that the respondent had alternative remedies in contempt proceedings and a writ of execution. The court noted that the real issue was whether the alternative remedies would afford adequate protection from the continuing mischief. The court held that contempt proceedings are entirely unsatisfactory, where the injury has already started and is continuing. It was also held that a writ of execution was unsatisfactory for immovable property such as land.
The appellant claimed that service by postal service did not constitute proper service of summons as per rule 44 of Central and Local Courts (Practice and Procedure) Rules; and that this affected the validity of the default judgment. However, the court noted that the service was properly effected. It was also held that the validity of a default judgment was not affected by service of summons so, it was valid unless set aside lawfully.
Accordingly, the appeal was dismissed with costs.
The plaintiff in this case was permitted by the Chief of Matebeng to graze 187 goats and 84 sheep at Pekamollo near Mount Tsolo. The defendants took legal custody of about 700 of the plaintiff's animals and some of the plaintiff’s animals died in their custody.
The plaintiff instituted a claim for damages caused by the defendants’ trespass and negligence. He submitted that the death of his animals was caused by the defendants’ failure to exercise reasonable care to safe keep the animals.
The plaintiff proceeded with the case against the second, third, fourth and seventh defendants who did not file their notice to defend the claim. The court was satisfied that the plaintiff had made a conclusive case on the claim for negligence since the defendants decided not to give any defence.
The court held that the plaintiff was not entitled to damages for trespass since the first defendant was the Chief of Tsolo and had the power to decide which area under his jurisdiction was a reserved pasture. It was also held that the other damages were reasonable.
Accordingly, the second, third, fourth and seventh defendants were found to be severally and jointly liable. The court ordered the payment of M18,090.00 for the loss of the animals that died; M2,000.00 for the loss of wool and mohair; and an interest at the rate of 11% per annum from date of the judgment and costs of the suit.
This was a counter-application by the fifth respondent (now applicant) against first and sixth respondents (respondents), for an order declaring a mining lease between the Basotho Nation and another company void. The applicants also prayed for costs in the event that the application was opposed. The applicant claimed that there was non-compliance with the procedures prescribed by sections 6 and 7 of the Mining Rights Act of 1967, as amended, when granting the lease.
The court determined whether Order No. 1 of 1970 which was enacted after the coup d'etat of 1970 abolished the office of the King and his executive power of allocating land or interest in land as contended by applicants.
The court noted that the applicant quoted Makenete v Lekhanya and others C of A (CIV) 17/1990 in support of the position that the order abolished the office of the king. However, it was noted that this position was only referred to in the obiter, (not the main holding) which failed to consider the effect of the Regent (Assumption of Office) Notice of 1970.
The court then interpreted the definition of regent to be “one who is invested with royal authority by”. Consequently, it was found that the notice appointed Queen Mamohato Seeiso to be regent for the duration of the King’s absence from Lesotho. It was further held that the king’s office had not been abolished since the queen was appointed to be his regent for the duration of his absence.
Accordingly, the application was dismissed.
The matter deal with a land dispute. After the first defendant declared the plot of land in question a “selected development area” and leased it to the second defendant, the second defendant fenced it off. Prior to this, the plaintiffs had been the lawful occupiers and users of that plot of land which they utilised for agricultural purposes.
Initially, the plaintiffs sought a court order declaring as void the first respondent’s decision to define the plot of land a “selected development area” and an eviction order ejecting the second defendant or, alternatively, a compensation order ordering the defendants to compensate the plaintiffs. The plaintiffs conceded however, that the second defendant did come into occupation of the land legally. Eventually, the parties agreed that the court should decide only whether the plaintiffs were entitled to compensation.
Relying on s45(2) of the Land Act No 17 of 1979, the court held that two conditions must be satisfied for the loser of the right to use and occupy particular piece of land to be entitled to compensation. First, the selected development area that has been declared must consist wholly or partly of agricultural land within a selected agricultural area. Second, the land must be within a "selected agricultural area".
The plaintiffs, however, did neither allege nor prove that the land was in a selected agricultural area. Consequently, the plaintiffs claim for compensation failed and was dismissed with costs.
The court considered an application for the applicants to be compensated before removing them from their land for improvements to those sites, as well as an interdict restraining the respondents from removing or demolishing the houses of the applicants without compensating them. The facts surrounded the applicant’s right to occupy the land based on allocation of land letters. The respondents argued that the applicants were in unlawful occupation as only the Urban Land Committee could allocate land. Further, that the Minister had published a legal notice advising the applicants that the land would be taken.
The court considered whether the right to land under s 44 of the Land Act 1979, which governs that the seizure of land for public purposes, was correctly administered. Further, the court stated that in Lesotho, land is not subject to individual ownership, and a person only has a right to occupy and use the land and when land has been taken away by custom, it has to be replaced.
The court found that the applicants, who had collectively spent millions on improvements to their houses, could not have their land taken away and their rights ignored. Further, the court held that peoples land could not be seized without them being consulted and being heard.
The court found that the legal notice issued by the minister was contrary to law as there was no prior consultation and it did not specify the purpose for seizure or the properties to be seized. Accordingly, the application succeeded.
This was an appeal from a decision of the High Court which declared the proclaimed Selected Development Area (SDA) as null and void for failure to comply with Legal Notice 17/1999 and an order requiring compensation of the respondents before they were evicted.
The court determined whether the respondents had legal rights arising from their occupation of the land and if such rights had been extinguished upon proclamation of the SDA, with the non- payment compensation being no bar to eviction.
The court established that the respondents were bona fide occupiers who made useful improvements on the land. Further, the court established that s 17 of the Constitution prohibits compulsory acquisition of any right or interest in property unless the 3 conditions therein are satisfied.: the acquisition must be necessary, justify consequential hardship and there must be prompt and full compensation thereof.
The court found that the constitution does not countenance taking of possession of property without payment of prompt compensation and the appellants cannot assert a right to evict the respondents without compensation.
The court held that the respondents were entitled to compensation and interdicted the appellants from demolishing the developments on the land.
The court considered an application for an interdict, restraining the respondents and their associates from setting foot near the diamond mine.
The respondents raised several issues, including the material disputes of facts, making the application unsuitable. The correct procedure as the respondents argued, was to proceed through the issuing of summons. The court pointed out that over the years, the court has allowed litigants to proceed by way of action proceedings if facts are not disputed, or if no dispute of fact is foreseeable. The court dealt with the requirements for an interdict and concluded that the applicants met the requirements. The court held that the applicants established a clear right to the mine and the respondents were interfering with such a right. The court also pointed out that there was no clear, alternative right available to the applicants. On the contrary, the respondents had other remedies available in the event that the interdict affected their rights.
The court granted the interdict and restrained the first and second respondents from setting foot at the diamond mine under the administration of the applicant.
This matter dealt with a land dispute which had commenced in the District Court but was transferred to the Land Court by agreement of the parties. At the end of the trial, an application for absolution from the instance (an order to dismiss a claim on the basis that no order can be made) was made. This application, the applicant sought to include an amendment that would introduce new evidence. The respondents argued that the application was an attempt to cover its failure to comply with the rules of court.
The court considered whether the application was properly before it. The court observed that the applicant had not obtained leave of the court for the application nor consent from the other parties to amend and file further evidence. It relied on r 13 of the Land Court Rules, No. 1 of 2010 and stated that even if the applicant had obtained leave or consent, the court could not grant the application for absolution so as to assist the applicant to cure a defect of none compliance with the rules of court.
It was held that the amendments were an abuse of the court process because the applicant was in fact curing the deficiencies in his pleadings after he had closed his case. Further, the court found that there were no exceptional circumstances to allow the application.
Accordingly, the application was dismissed with costs to the respondents.
The petitioners disputed eviction from the railway reserve. The respondents filed a cross petition arguing that the petitioners were non project affected persons (PAPs) who were illegally squatting in the reserved area.
Firstly, the court determined whether the implementation of the Relocation Action Plan was in compliance with international legal provisions. The court noted that there was no legal framework in Kenya governing adequate housing and forced evictions. The court, therefore applied the United Nations Basic Principles and Guidelines as a source of international law in the matter, in accordance to art 2 (5) and (6) of the Constitution of Kenya. The court held that the Relocation Action Plan was carried out within the required legal framework.
Secondly, the court determined whether the implementation of the Relocation Action Plan caused a violation of the petitioner’s constitutional rights. The court noted that art 21 of the Constitution of Kenya 2010, imposed a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. The court found that the affected residents had knowledge of the intended relocation for a period of 9 years, which amounted to adequate notice of the eviction and relocation.
Accordingly, the petition was dismissed. The cross petition succeeded and the court ordered the petitioners whose names did not appear in the list of the PAPs to move out of the railway reserve and allow the second respondent to proceed with the resettlement plan.
The court considered a petition whereby the petitioners averred that they were land owners on which a wind farm was to be developed. The respondents bought the project rights from the initial owners whose application for the construction of the farm had been successful and sought to expand the farm. They obtained permission from the National Environmental Management Authority (NEMA) by renewing the initial project application.
The petitioners alleged that this was against the provisions of the Environmental Management and Coordination Act and the Constitution as the expansion was not implemented in accordance with the law and would violate their constitutional rights to a clean and healthy environment and their rights to own property. The expansion entailed the farm would encroaching onto their surrounding properties.
The issue faced by the court was whether the expansion was legal and whether the rights of the petitioners had been violated or not.
The court held that the expansion could not be logically carried out at the site captured in the original Environmental Impact Assessment and the EIA study report initially filed with NEMA. It could therefore, not be renewed. They had to file a new application and therefore the renewal of the application was contrary to law.
This failure to adhere to the EIA regulations potentially threatened the petitioners’ right to a clean and healthy environment but not their right to own property as the farm did not make use of their land nor did it threaten to use it up.
The court considered a petition stop the development of flats within a residential area. The property was initially planned as a single dwelling unit but the developer applied for change of user to multiple dwelling units which was approved. The petitioners claimed that the change of user was irregularly granted and claimed that approval from the National Environmental Management Agency was improper because the county government approved the change of user despite multiple objections from the public.
The petitioners sought an order declaring that the decision of the first respondent to change the user was unconstitutional and null and void. Further, that the approval of the re-development amounted to a dereliction of duties.
The court considered 1) whether a proper Environmental Impact Assessment was conducted, 2) whether the process of planning approval was lawfully adhered to and, 3) whether there was a violation of the petitioners' constitutional rights.
It held that the NEMA processes were casually done as objections to the project, were not given a hearing and were not considered before the decision to allow the project was made.
Further, it held that there was no consultation with interested parties as was required by the law. This meant that no proper EIA was carried out and therefore the process of planning approval was legally flawed.
As a result of this, the court held that claims for violations of the right to a clean and healthy environment were breached or at the very least, under threat.
The matter required the Supreme Court’s advisory opinion in line with art 163(6) of the constitution. The reference concerned land administration and management powers of the National Land Commission versus those of the Ministry of Land, Housing and Urban Development.
The main issue for determination was whether the Supreme Court had the jurisdiction to render an advisory opinion- on the powers and functions of the National Land Commission namely, those of the Ministry of Lands, Housing & Urban Development.
The court noted that it proceeded on a case by case basis in determining whether to exercise its advisory opinion jurisdiction. It was held that the instant reference met the admissibility requirement as set out in art 163(6) of the constitution but on condition that the court shall adopt a re-framed set of issues for consideration. However, the court found it premature to render the opinion at that moment and ordered the parties to undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.
Judge Njoki SCJ dissented and held that the majority ruling was against the spirit of art 163 of the Constitution. Mainly because the questions posed were not subject of the court’s advisory opinion since they had no direct correlation with county government.
The court considered a petition whereby the petitioner sought an order of certiorari to quash a Gazette Notice declaring his land to be forest land. The petitioner had entered into a sale agreement with the original owner of the land by which the parties agreed to a down payment upon successful application to the land control board. The Petitioner took immediate possession and contracted to pay the balance of the purchase price after the maize season. The application was made and rejected due to the Ministry of Natural Resource’s interest in the land. Subsequently, the land control board met and the petitioner’s application was granted, however, the land was transferred to the government and marked a forest.
The petitioner argued that during the dispute, its members were harassed and evicted from their farms, with their houses being torched.
The court found that there was no doubt that the petitioner had entered into a sale agreement. Further, the control board acted in a manner to deny the petitioner the land. The court found that based on a letter received from the Commissioner of Land, there was a clear acknowledgment of foul play in the manner in which the government came to buy the land. Further, the government had deprived the petitioner of its right to land and subjected its members to poverty. In conclusion, the court held that the land was to be placed in the name of the petitioner as it was the rightful and lawful owner.
This was a petition sought on the grounds that the petitioner’s rights to the protection of property and to fair administrative action under the Constitution had been violated. The case concerned a contractual agreement involving the petitioner and the state over a leasehold property which expired before the conclusion of the contract. The petitioner had, prior to the expiry filed an application for renewal of the lease. The court considered whether the state had demonstrated its intention to renew the lease and whether a legitimate expectation was created.
Secondly, the court considered whether the failure by the commissioner of lands to exercise its statutory duty to renew was a violation of the petitioner’s rights.
The court observed that by entering a contractual relationship, the state had demonstrated its intention to renew the lease and created a legitimate expectation on which the petitioner had relied. Furthermore, the court held that in terms of the Land Act, the lessee had the right of first refusal, and was therefore entitled to the extension of the lease.
The court held however, that it would be inappropriate for it to grant a lease renewal of 99 years as prayed, since the renewal term was discretionary. The court further noted that the fact that people had already settled on the land would create challenges in the future. In conclusion, the court ordered the parties to enter further negotiations to resolve the matter within 90 days failing which the court would then pronounce the final reliefs.
The court considered an application by which the applicants sought an order declaring that their right to life had been contravened by forcible eviction and by settlement of other persons on their land. The applicants were members of the Ogiek community who had been living in East Mau Forest for decades, as food gatherers and hunters. Upon the introduction of colonial rule, the land was declared a forest, however, no land was set aside for the applicants.
The court set out the issues as follows: whether the members of the community had recognizable rights arising from their occupation of the forest; whether in the circumstances of the case, their rights had been infringed by their eviction and allocation of other persons; and whether the settlement was ultra vires.
The court found that the right to a livelihood did not have a definition and could be included in the right to life. Thus, their livelihood was directly dependent on forest resources to sustain their way of life. Further, the court held that the applicants were a minority group who had lost their access to land and their right to live in the forests which was key to their livelihood, thus their rights had been infringed.Finally, the court found that there were significant irregularities made during the allocation of land, thus the settlement scheme was ultra vires and the applicants were therefore entitled to the relief sought.
Accordingly, the application was upheld.
The appellants appealed against the decision of the High Court to dismiss an application for judicial review. The appellants sought orders of certiorari and prohibition against the County council to set apart a portion of land for the purposes of a boat landing base and the subsequent granting of a lease to the third respondents. The court had to consider several issues including: whether judicial review was the proper avenue for nullifying a title which was granted by law; whether a person other than the ministry in charge of forest could challenge an allocation of land; and what the correct status of the land in question was.
The court observed that the remedy of judicial review under Kenyan law was not wide enough to accommodate a party who was not just aggrieved by the process but sought to ventilate other issues. The court however concluded that there was no material dispute of fact, and the case could be decided on the papers. The court held that the Commissioner of lands had no power to grant more land than what the statute empowered him to do and that he had no power to set aside public land. On the locus standi of the appellants, the court held that the land which was allocated was a beach in front of the appellants’ pieces of land which tourists and local villagers used. There was therefore substantial interest by the appellants in the matter.
Accordingly, the appeal was allowed and the order of the High court dismissing the appellants’ notice of motion was set aside.
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 court considered an application requesting an order to commit the respondents for contempt of court for not respecting an interdict which restrained them from undertaking any developments on the land in dispute, until the determination of an application for interlocutory injunction.
The respondents argued that they were not in contempt since no formal order had been issued to give effect to the orders of the court. The respondents also denied developing the land in dispute. The court noted that there was no requirement for a formal order to be issued, since both parties and their counsel were in court when the order was issued.
The court considered whether the respondents willfully disobeyed the interdict order by going to the land in dispute, to work. The court found that contempt is a criminal offence, which requires an applicant to prove the case beyond reasonable doubt, and to make a prima facie case before the respondent’s defence is considered.
The court found that the evidence was inconclusive since the applicant relied on pictures of people building on the land, but failed to identify the respondents as the people in the pictures, alternatively to prove that the respondents sent the people in the pictures.
Accordingly, the application was 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 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.