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.
Read also JIFA's Environmental Country Reports for SADC
The matter dealt with an application to release the applicant’s motor vehicle which was being detained by the Kenya Forest Service pursuant to an order of forfeiture.
The court held that the right to forfeit private property must be subject to both the constitution and the enabling statute.
The court held that the key elements in an application by the state seeking forfeiture in a criminal proceeding are that:
(a) The state must establish the requisite nexus between the property and the offence;
(b) The courts determination may be based on evidence already on record including any plea and or adduced evidence accepted by the court as relevant;
(c) If the court seeks to forfeit a specific property, a notice of the order must be sent to any person who reasonably might appear to be a potential claimant with standing to contest the forfeiture;
(d) This is more so when in practical terms the seized property would be in the hand of an agent, employee, or servant of the person with proprietary interest or right;
(e) Furthermore, as a form of punishment the principle of proportionality ought to apply.
The court held that, a presumptive innocent person whose property is a subject of criminal proceedings should not lose the property without an opportunity to be heard. In the present case, the order on forfeiture was disproportionate to the nature and gravity of the offence and there was a failure to serve notice. Accordingly, the order on forfeiture was quashed.
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 case concerned a constitutional petition in which the petitioners sought a declaration that the creation of a national reserve through the legal notice 86 of 2000 was unlawful. The court considered the effect of legal notice and whether it was published or degazetted in violation of the law. Lastly, the court considered whether the rights of the community were violated.
The court determined whether the notice was published without consultation and observed that consultations were held between the minister and the county council. The court then considered whether the former president’s alleged verbal revocation of the legal notice at a public rally was a lawful avenue for the revocation of a legal notice. The court held that the Wildlife Conservation and Management Act provided mechanisms on how to withdraw a declaration and as a result, the president had no power to revoke any declaration.
On this basis, the court held that the claim by the petitioners that the land in question was degazetted to be available for their use could not be sustained. In conclusion, the court held that the petitioners failed to show how their rights were violated and therefore could not rely on the new constitution and the act to claim the infringement of their rights. Accordingly, the court dismissed the petition without an order of costs.
The applicants sought a declaratory order, to prevent the respondents from prosecuting them on for the alleged neglecting of their functions under the applicable laws which resulted in the collapse of a dam, injury and loss of life. The court considered whether the applicants’ application amounted to a defence, suitable for determination in the lower court and whether the respondents’ actions in charging the applicants were irrational, unreasonable and procedurally unfair.
The court observed in the first place, that it had no capacity to interfere with lawful exercise of the constitutional and statutory powers of the respondents. The court however stated that in appropriate cases, it was empowered to issue judicial review orders, where there was abuse of power by public authorities. The court further held that the applicable legal provisions, including the constitution place certain duties on public office bearers, particularly the applicants.
The court held that on account of the tragic incident, the actions of the respondents to bring criminal charges against the applicants were not unreasonable or irrational. The court therefore declined to issue the declaratory order, arguing that it was in the public interest that the applicants be subjected to the criminal trial. Accordingly, the application was dismissed with costs.
The substance of this appeal was a judicial review against the decision by the National Environment Management Authority (NEMA) to grant an EIA license. The appellants alleged that the license was issued without observance of the law.
The 2nd respondent raised preliminary objections and argued that the appeal was statute barred, the appeal was a subject matter of another suit and therefore sub judice and constituted an abuse of court process.
The appellants argued that the appeal was not statute barred since the time limitation, being 60 days only starts to run when the decision is handed down. The court interpreted Rule 7 of the National Environmental Tribunal Procedure, Rules 2003 and found that its provisions only allowed an extension of time to file proceedings where the time limit is not set in the Environmental Management and Coordination Act. The court noted that this appeal was not in the ambit of Rule 7 since s 129(1) of the Act set the time limit to 60 days after occurrence of the Act, which in this case was 60 days after the EIA license was issued. The court held that the appellants were not in compliance of the time limitation and declared the appeal to be incompetent.
The court found that as a result of the appeal being incompetent, there was no need to consider whether the matter was sub judice.
Accordingly, the appeal was dismissed.
The applicants challenged the respondent’s issuance of improvement notices with respect to their properties; on grounds of encroachment on a riparian reserve contrary to law.
The applicants prayed for an injunction restraining the respondents from enforcing the notices and entering their properties. They also prayed for a declaration that the notices were void since they were issued without regard for fair administrative action and due process; and an order for costs.
Without delving into the merits of the main matter pending in the tribunal, the court found that the appellants had established
the requirements for an injunction. Firstly, because the appellants had established a prima facie case with a probability of success at trial based on the intriguing legal and factual arguments. Secondly, the court noted that there was no other alternative remedy since the appellants would suffer irreparable harm if the injunction was not granted. Mainly because the subjects of the consolidated appeals suffered the risk of being rendered nugatory by enforcement of the improvement notices. Finally, the court found that the balance of convenience lied in the favour of the appellants because the respondents failed to point an immediate, ongoing or direct harm to the environment that necessitated the immediate enforcement of the improvement notices.
Accordingly, the application succeeded.
This application was brought pursuant to the provisions of Rule 19 of the National Environmental Tribunal Procedure Rules, 2003; to invoke the powers of the tribunal to strike out the respondent’s reply for disobedience of the tribunal’s order. The applicants argued that the 2nd respondent had disobeyed a stop order to stop all activities relating to the construction of 2 residential homes. They contended that this amounted to an abuse of due process of the tribunal.
The respondents argued that the application was defective and bad in law.
The court determined whether the actions of the 2nd respondent were illegal and unlawful. The court found that a stop order was issued and that the 2nd respondent had temporarily complied with the stop order until it decided to proceed with the development. However, the court held that the applicants could not invoke the tribunal’s powers despite the disobedience, mainly because the stop order was not granted upon an application for directions made under part V of the National Environmental Tribunal Procedure Rules.
Further, it became apparent that the advocate appearing for the applicants had deposed to the affidavit in support of the application. The court found that an advocate should not depose to an affidavit in a matter which he is appearing. Further, that he should not depose to an affidavit on information supplied by his client when his client is available to swear on his own. The court thereby struck the affidavit out, and as a result the application could not stand on its own.
Accordingly, the application was dismissed.
In this case the appellants appealed against the first respondent’s decision to issue an environmental impact assessment (EIA) license to the second respondent for the proposed development of offices, staff quarters, and a conference hall. The applicants sought the following: a stop order; cancellation of the license; and an environmental restauration order.
The first respondent filed a notice of preliminary objection contending that the tribunal lacked jurisdiction to entertain the appeal, as the appeal was filed more than 60 days after the issuance of the license and, therefore, out of time.
The appellants argued that they filed the appeal within 60 days of the time they became aware that the license had been issued and urged the court to admit the appeal.
The tribunal considered whether the appeal was one under s129(1) or s129(2) EMCA. It observed that any appeal that sought to challenge matters surrounding the grant or refusal to grant a licence fell within the ambit of s 129(1) whereas s129(2) covered appeals against acts or omissions of the Director General or the committee of the authority or its agents on matters outside the issue of licensing.
The tribunal found that the appeal fell under s129(1) which imposed a strict time limit, incapable of extension. Thus, the tribunal held that the date when the appellants became aware of the decision to issue the license was immaterial in determining whether the appeal was competent or not. Accordingly, the preliminary objection was allowed, and the appeal dismissed.
The court considered an application for review of the Appellate Court’s decision to decline to grant certification to appeal. The applicant argued that the Appellate Court failed to appreciate that the matters, in respect of which the applicant sought a decision, were substantial points of law which were of general public importance and transcended the circumstances of the particular case.
The court held that an applicant seeking certification “must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case” and if the applicant’s appeal is based on a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.”
In the present case, the court found that the decisions of the lower courts were based on each of those court’s interpretation of the provisions of the private transportation and storage agreement between Triton Petroleum Company Limited (Triton) and the Respondent and the collateral financing agreement between Triton and the applicant. These were not issues of general public importance which transcended the circumstances of the particular case.
Accordingly, the court dismissed the application.
This was a petition brought by various parties challenging the implementation and design of the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET Project). The court considered whether the implementation of the project violated the rights of the affected communities.
The court observed that the rights of citizens regarding information on environmental matters, public participation, and access to justice were indispensable to foster sustainable development. The court found that the various petitioners’ rights were violated or could potentially be violated by the project, including the rights to fishing and to a clean and healthy environment.
The court ordered the project designers to engage the community as a distinct group and to mitigate on how the project, would affect their rights to culture. Secondly, it ordered the respondents to design a measurable and actionable plan, in consultation with the affected community on how to protect the cultural identity during and after the construction of the project. Thirdly, it ordered the government to draw up a management plan to preserve the Lamu Island as a UNESCO World Heritage Site as directed through UNESCO declarations. Fourthly, it ordered the department responsible for issuing environmental impact assessments to ensure that the rights of the communities were implemented before reconsidering the licence. Accordingly, the petition was upheld.
The two applicants were seeking an order for joinder in a substantive appeal by the petitioner. The court considered whether the applicants ought to be joined to the appeal as interested parties. The appeal dealt with the lawfulness of charges levied against the appellant and the applicants for the use of sea water.
In deciding the case, the court relied on the case of Francis Kariuki Muruatetu and Another v. Republic and Four Others which set out guiding principles when seeking to be joined to proceedings as an interested party. The rule stated that the party seeking to be enjoined must move the court through a formal application and must place sufficient grounds before the court namely: the personal interests that the party has in the matter; the prejudice that the interested party will suffer; and the relevance of the submissions the party seeks to rely on in the case.
In dismissing the application for joinder, the court held that the applicants expressed no interest in the matter during the lower courts. Furthermore, the court held that the applicants could bring their own application since there was no order of stay of proceedings in place. Lastly, it held that the applicants did not stand to suffer or incur any prejudice in the matter. Accordingly, the court dismissed the applications with costs.
The appellant in this matter claimed that the respondent had encroached onto her land. The lower court found for the respondent and dismissed the claim. The appellant argued that the learned Magistrate erred in law and fact in ordering that the defendant acquired the land in dispute through adverse possession yet there was evidence that the appellant protested the defendant's conduct and further that the magistrate had erred in law in disregarding the laws of inheritance.
The court held that the evidence rendered by the appellant, was insufficient to counter the argument on adverse possession. The defendant and his father had used this land for over 35 years without any disturbance legally for growing trees. The court held that if a person occupied land without the sanction of the owner for 12 years, he was deemed to have acquired it through adverse possession. The court went on to hold that the claim had nothing to do with distribution of intestate property. The pleadings merely spoke of the respondent’s encroachment into her land and nothing to do with intestate succession. That being the case, the lower court would have erred if it had decided the case on the basis of the act when inheritance was not an issue before the lower court.
Accordingly, the case was dismissed.
This was a claim for negligence and damages caused to the plaintiffs’ houses by road construction works that were carried out by the first defendant with the authority of the second defendant. The second defendant argued that the action was statute barred and that it could not be held liable for the first defendant’s negligence since they were independent contractors.
The court noted that the plaintiffs accepted that the action against the second defendant was statute barred but argued that the second defendant waived its right to a remedy under the act. The court held that the joinder of the second defendant to the proceedings was improper. It was further held that the waiver which was not pleaded lacked merit.
Secondly, the court determined whether the first defendant was negligent. The court noted that an action of negligence required the plaintiffs to prove that there was a duty of care owed to them, a breach of the duty and damages suffered thereof. The court held that the first defendant owed the plaintiffs a duty of care not to subject their houses to a risk of damage. However, the court found that the plaintiffs failed to prove a breach of the duty, since there was no evidence that the construction was done without risk assessment and the plaintiffs had been compensated for the damages.
The issue of the second defendant’s liability was found to be redundant, since the action was already dismissed on the basis of the first and second issues.
The matter dealt with an application for an order for the continuation of an interlocutory injunction arising from a dispute regarding encroachment onto the claimant’s land by the defendant.
The court considered whether it should grant an order for the continuation of the interlocutory injunction or discharge the interlocutory injunction.
An interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties have been finally determined. In any application for an interlocutory injunction, the court first needs to determine whether there is a serious issue to be tried. If not, the application fails in limine. In this case, it was clear from reading the sworn statements that the facts herein were in dispute and raised pertinent questions to be determined by the court at a full trial.
The court then considered whether damages would constitute an adequate remedy. It held that damages would have been an inadequate remedy in this application.
It was the court’s view that the balance of convenience tilted in favour of allowing the continuation of the interlocutory injunction.
Accordingly, continuation of interlocutory injunction granted.
The matter dealt with an application for an order of interlocutory injunction restraining the defendant from entering, cultivating and burning bricks on the claimant's farm lands pending the hearing and determination of this matter or until a further order of the court.
The court considered whether it should grant an order of interlocutory injunction or dismiss the application. An interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties have been finally determined.
When considering an application for injunctions, the following principles apply:
1) as long as there is a serious question to be tried, a prima facie case does not have to be shown;
2) whether the plaintiff would be adequately compensated by damages for the loss if they succeed;
3) whether the defendant would be adequately compensated if the plaintiff fails;
4) consider all matters relevant to the balance of convenience;
5) consider the relative strength of each party’s case.
In this case, according to the claimants' own evidence, each of them received a court order to the effect that the judgement of the First Grade Magistrate Court sitting at Mulanje extended to the claimants. Therefore, the court order had to continue to apply until, if at all, a contrary decision was made in the substantive action.
Application for interlocutory injunction dismissed.
This was an application by the plaintiff claiming compensation for the land which was compulsorily acquired by the defendant. The plaintiff made a further claim for compensation for the destruction of 390 banana plants. The court had to decide on the quantum of damages payable for the loss of use and occupation of land and the loss of the 390 banana plants.
The court first dealt with the general principles guiding compensation and considered the applicable legal provisions. The court held that the main principle underpinning damages was restitution. In addition, the court listed several grounds under which compensation can be calculated. These grounds included a calculation of compensation based on the market value of the land; compensation based on the depreciation of value, if only a part of the land was expropriated; disturbance compensation among other guiding principles.
In awarding judgment for the plaintiff, the court considered the nature of the deprivation and concluded that such deprivation was permanent. The plaintiff was awarded MK3, 812, 000.00 as compensation and the respondent was ordered to pay the costs.
This was an action for damages for nuisance and trespass against the defendant. The plaintiff claimed that he was the owner of a property on which the defendant erected a 55m antenna in a brick enclosure along with an unsilenced diesel generator which produced noise. He further claimed that the defendant erected a girder with red flashing lights and positioned two 24-hour security guards at the enclosure. The defendant contended that the property was part of a forest reserve for which it had obtained a licence from the Department of Forestry.
The court considered whether or not the defendant was liable in trespass and nuisance and whether or not the plaintiff was entitled to the damages claimed.
The court found that the plaintiff held a 99-year lease over his property and that the licence granted to the defendant by the Department of Forestry did not specify the exact site for the location of the antenna. It was therefore held that the licence did not justify the trespass. The court concluded that the defendant was liable for trespass on the plaintiff’s land.
In determining the issue on nuisance, the court noted that the plaintiff did not plead the particulars of the alleged nuisance by the defendant and that he did not adduce evidence to prove the allegation of the nuisance. As such, the claim for nuisance was dismissed.
Accordingly, the court awarded the plaintiff damages for trespass.
This was an appeal against a decision of a magistrate to dismiss the appellant’s claim over a piece of customary land which he claimed was unlawfully in the possession of the second respondent, his son. The appellant had left the village for a long time and upon returning found that the first respondent had constructed a home on his land. The appellant instructed the first respondent to vacate land but he refused and proceeded to sell the land to the second respondent. The appellant told the court below that he inherited the piece of land from his father. The lower court found that the appellant had failed to adduce enough evidence to show that the land belonged to him.
The court had to determine the following: which party had the right of occupation of the land; whether the land was lawfully transferred to the second respondent and whether a permanent injunction could be granted restraining the appellant or the respondents from interfering with the land in question.
The court held that although the land had been given to the first respondent customarily, chiefs must be guided by the law specifically, the Constitution and it was against the law to deprive any person the right to use and occupy customary land without any justification at law. It held that indefinite individual usage and occupation of customary land was therefore permissible under the laws of Malawi and the subsequent transfer was legal. Accordingly, the court upheld the lower court ruling.
Civil Procedure ̶ Application by Appellant for an order ejecting the Respondents from the land situate at Mhlaleni, directing the Respondents to demolish all structures they have constructed on the land and interdicting Respondent’s from carrying out any activities on the land – Dispute over the territorial jurisdiction over the area where land is situate – Plea of lis pendens raised by the Respondents - whether matter pending determination by the High Court or the traditional authorities – High Court upholds plea of lis pendens and orders status quo prevailing to be maintained pending determination by appropriate authority – Whether High Court erred in so holding – Whether High Court has jurisdiction to entertain matters relating to land pending before traditional authorities having regard to Section 151 (3) (b) of the Constitution - Held that High Court has no original jurisdiction to entertain matters in which a Swazi Court has jurisdiction, but High Court has only revisional and appellate juridiction as provided by Section 151 (3) of the Constitution - where a matter is pending or has been determined by the traditional authorities, the High Court must refer the matter back to those authorities for determination or enforcement – Decision of High Court upheld, and – Appeal dismissed with costs.
Civil Procedure ̶ Action by Appellant claiming damages for negligence – Bus conductor throws bottle under bus from which the Appellant has just alighted – Bus stamples over the stump of crushed bottle – Part of the bottle springs up and hits eye of the Appellant resulting in injury – Respondent raises plea of absolution from the instance on ground that the injury was not foreseeable – court a quo upholds the plea on ground that the bus conductor was not negligent as the damage caused was neither reasonably foreseeable nor preventable – whether court a quo applied proper test for absolution from the first instance – On appeal, held that on the evidence adduced the conduct of the bus conductor was negligent and the damage caused to the Appellant was reasonably foreseeable and preventable – Appeal allowed with costs – Matter remitted back to the court a quo, to hear the Respondent’s case and determine the case on the merits.