Environmental Case Law Index

This was an appeal against the validity of an order to the Land Valuation Board to assess the compensation payable in respect of buildings and farms belonging to inhabitants of an old village.

The facts of this case were that the appellant, a mining company, requested the respondents and other inhabitants of a village, which adjoined its mining area, to vacate the village and paid them compensation for their buildings, which were later demolished. Section 71 of the Minerals and Mining Act, 1986, provided for compensation for disturbances to owners and occupiers of lands affected by mineral operations. The appellant argued that this compensation was limited to areas within the mineral operations and that these areas were not land designated within its mining lease.

The Supreme Court considered the lawfulness of the board’s decision to award further compensation under s71 of the act. It found that since the mining operations of the appellant affected the owners or occupiers of land they were entitled to statutory compensation. The court stated that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, as permitted under s71(3) of the act, compensation for the disturbance of their farming activities at the old village was mandatory under the act.

The court, however, stated that the lower courts came to the right conclusion but their reasons were not sound in law. Accordingly, the appeal was dismissed but the reasons were substituted for the Supreme Court’s decision.

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.

This was an appeal by a company and its liquidators against the decision of the lower court to dismiss their claim for the validity of a lease. The appellants claimed in the alternative that the decision of the respondent, the Municipal Council of Windhoek (“the council”) be reviewed and set aside. 

The main issues to be determined were, whether the council had validly cancelled the lease prior to the liquidators’ election to continue with it and whether the decision of the council was open to review by the court.

The respondent contended that the cancellation was caused by the appellants’ breach of a term of the contract, by discontinuance of its textile industry.  The respondent further contended that the appellants breached another term regarding sound environmental practices.

The court found that the respondent’s decision to terminate the lease was solely contractual and not administrative. On this basis therefore, the court held that the decision was not open to review on administrative law grounds.

Firstly, the court held that financial failure of a company, leading to liquidation, could not terminate a lease. Secondly, that the council failed to establish what the terms for an environmental friendly textile industry were. In conclusion, the court held that the company had in fact given notice to terminate the lease and that the notice was accepted by the respondent. Consequently, the lease had then ceased to exist.
Accordingly, the court dismissed the appeal with costs.

This was an appeal against the High Court’s decision that declared the land tax imposed under ss 76 to 80 of the Agricultural (Commercial) Land Reform Act as constitutional.

The court determined whether s 76 contravened the constitutional principal of separation of powers which gives the National Assembly power to provide for revenue and taxation.

The appellant contended that the law in question went against separation of powers by devolving legislative power to a minister.

The court held that s 76 did not conflict with the constitutional principles of separation powers as the power of the National Assembly had been exercised by the stipulation of a tax as authorised by the Constitution. The court found that the only role of the minister was to set a rate according to a procedure set out in the regulations. The court stated further that in any event, this rate was subject to the approval of the National Assembly and as such, no independent power was vested in the minister.

The court noted that the regulations that were challenged set out how the land was to be administered. The court held that the appellant’s claim lacked sufficient particularity required for pleadings in constitutional litigation. 

Accordingly, the court held that the appellant had failed to establish how these regulations contravened constitutional provisions and dismissed the appeal. The court also dismissed the appellant’s prayer with no order as to costs.

This was an appeal against a decision of the High Court to dismiss the appellant’s claim for loss of occupation of communal land. Her second claim was that the land was unlawfully expropriated without compensation by the respondents.

The court determined whether or not the appellant had acquired a valid customary law tenure right in the land in dispute and whether this right was unlawfully interfered with. Further, whether any liability attached to the council arising from its interference with that right.

The first respondent (“the council”), contended that the land belonged to it and had ceased to be communal land thus extinguishing communal land tenure. The court found that the appellant acquired and held a customary land tenure right and the state’s succession to the communal land did not extinguish communal land tenure but the state simply held the land in trust for the affected communities.

The court established that the Constitution guaranteed the enforcement of customary land rights. The court therefore, concluded that the appellant had an exclusive right to the use and occupation of the land in dispute; and that the right attached to the land even after its proclamation as town land.

Accordingly, they court upheld the appeal with costs in favour of the appellant. The matter was remitted to the High Court for the adjudication of the appellant’s claim of unjust enrichment and compensation.

The court considered a petition declaring that the violation of Article 42 of the Constitution of Kenya resulted in a denial of the right to a clean and healthy environment, as well as an injunction to have a waste disposal site relocated. 

The court found that the main issues for determination were 1) whether the respondents’ actions violated or threatened the petitioners’ right to a clean and healthy environment, and 2) whether they are deserving of the relief sought. 

The court found the right to a clean and healthy environment to be a fundamental right and held that the duty to have the environment protected for the benefit of the present and future generations is imposed on the State and every person. 

The court considered various provisions of the Constitution, wherein it argued that the first respondent had the mandate to establish and maintain sanitary services for the removal of all kinds of refuse and effluent. It was argued that when dealing with the disposal of waste, no person shall operate a waste disposal site without a licence.

It was clear that the respondent did not have the requisite licence and the court found that the first and third respondents violated the petitioners’ right to a clear and healthy environment, but that the second respondent did not.

The petition partly succeeded. The court granted the declaration but refused to grant the injunction to relocate the waste disposal site.

The matter dealt with a petition of appeal arising out of a dispute over the destruction of the respondent’s crops by wild animals that entered the respondent’s farm.

The court considered whether s3A(l) of the Wildlife Act, imposed liability on the appellant to compensate for loss or destruction of crop. The court held that s3A(l) imposed a duty on the appellant to protect the crops from destruction by wildlife and compensate for destruction.

The court considered whether there is a common law obligation under the principle in Donoghue v Stevenson 1932 SC (HL) 31 and the rule in Ryland v Fletcher [1866] LR 1Ex 265 on the appellant to compensate for damage or destruction caused by wildlife. The court found that neither were applicable to the present matter based on the facts of the case. 

The court considered whether damage caused by migrating wildlife is an act of God. Consideration must be given to the question whether the event was reasonably foreseeable. Migration of wildlife is an annual occurrence thus, foreseeable and so not an act of God.

The court considered whether the government ought to be liable for destruction by wildlife. Factually, the appellant had the duty of control of the wildlife because of s3A of the Wildlife Act and so the court held that liability for the damage fell on the appellant.  

Court of Appeal judgment upheld.

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.