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 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 application for judicial review wherein the applicants sought orders to quash the respondents’ decision to place an advertisement in the newspapers calling for applications for concessions in state forests, prohibition orders to prevent the respondent from actualizing any matters concerning the advertisement. They also sought an order of mandamus to compel the respondent to comply with constitutional provisions on the protection of forests.
The respondent argued that they had taken the action in accordance with s 37(2) of the Forest Act.
The court determined whether the respondent had complied with the law in making the decision.
The court interpreted s 37(2) and established that before the board takes a decision to place an advertisement for concessions, it must be satisfied that the forests will be efficiently managed through such concession or license and for the board to be satisfied, factors such as public views and opinion, should be taken into account before the decision is made.
The court found that the respondent had not made provision for public participation, yet it was constitutionally bound to do so and thus failed to comply with the law.
Accordingly, the court granted the orders sought by the applicants.
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.
The matter dealt with an application for a temporary order of injunction restraining the defendant from carrying on the business of a student hostel and a mandatory injunction directing the defendant to remove the student hostel.
The court considered whether the plaintiff met the requirements for the grant of a temporary injunction which entails firstly, establishing a prima facie case and secondly, determining whether there was irreparable damage likely to be caused to the plaintiff that cannot be compensated by way of damages, if an injunction is not granted.
Firstly, the exclusive use of the premises as a students’ hostel, from its previous use as a catering school was a material change of use. Approval was required before the commencement of any development or material change of use of land. Therefore, the defendant was in breach of the relevant planning and environmental laws.
Secondly, the injury to the plaintiff would be of a continuing nature and no amount of damages could ever adequately compensate for harm being caused to the physical and social environment, nor could it buy one’s peace of mind. The plaintiff thereby established a prima facie case to warrant the grant of an order of temporary injunction.
The court considered whether the plaintiff showed any special circumstances to entitle it to the mandatory injunction sought. The court held that the mandatory injunction sought would amount to determining the matter with finality before it proceeded to trial. Consequently, the said prayer was denied.
Consequently, the application partially succeeded.
The matter dealt with an appeal against the decision of the High Court to remit the decision of a board, regarding the appellant’s submission to build below the control flood line, back to that board for determination.
The main issues for consideration were: whether the lower court had set aside the initial decision of the board; whether the court should have determined the matter on the merits; and whether the board had authority to grant permission or not, without any proof of pollution.
The appellant had argued that the matter should not have been remitted back to the board but determined on its merits and further that the court should have ordered costs to the appellant, as the decision was made in its favour.
The court established that it was clear from a reading of the judgment in its entirety that the intention of the lower court had been to set aside the decision of the board. The court held further that the lower court was right in refusing to determine the matter when the evidence revealed that a decision was taken by the Chief Executive Officer alone and not the board. The court concluded that since no decision had been taken by the board as required, it would have to determine whether permission should be granted and whether there was any danger of pollution.
Accordingly, the court dismissed the appeal but ordered the first respondent to bear the appellant’s costs in the matter before the lower court.
This was a ruling on a preliminary objection that disputed the jurisdiction of the court. The respondents argued that its discretionary powers were not amenable to judicial review.
This objection was raised in the course of a review of a decision of the respondent to cancel the applicants’ licences that gave them a right to carry out sludge and waste disposal at the port of Mombasa. The applicants sought an order to quash the respondent’s decision and a further order to prohibit the respondent from implementing and enforcing the purported cancellation of the licenses.
Having considered the competing arguments for and against the preliminary objection, the court found that the objection was challenging the jurisdiction of the court. The respondents argued that its discretionary powers were not amenable to judicial review. The court held in the contrary that the decision was administrative and therefore could be the subject of a judicial review. It was further held that the applicants were not barred from coming to that court for assistance when they had grievances with administrative matters.
The court found that the preliminary objection had no merit and dismissed the application with costs to the applicant.
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.
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 appeal against the first respondent’s approval of the Environmental Impact Assessment (EIA) Project Report, submitted by the second respondent, in support of its application for the development of a housing estate.
The appellant contended that the housing estate was located in an industrial area with high levels of air and noise pollution, among others, and that a full EIA study ought to have been conducted.
During the course of the trial, it became evident that the Appellant objected to this proposed development, due to its concern that the proposed development, would introduce a conflict between its commercial activities within its premises, and the use of neighboring property for residential purposes.
The tribunal observed that the purpose of the EIA licensing process as prescribed by the Environmental Management and Coordination Act of 1999 and the Environmental (Impact Assessment and Audit) Regulations, Legal Notice No 101 of 2003 was to assess the likely significant impacts of a proposed project on the environment.
The tribunal found that the alleged serious health risks on account of the high levels of pollution in the area were not substantiated by credible evidence, and as such the first respondent was justified in rating approval. Further, the tribunal held that there was no evidence to show that this project would adversely impact on the environment in ways that could not be mitigated by the measures that had been proposed by the project proponent in the EIA project report.
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.
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 an application for a temporary injunction to restrain the respondent from cutting down trees, felling logs and trees remaining into or dealing in whatever manner with the applicant’s parcel of land.
The matter before the court was whether the applicant had established a prima facie case with a probability of success to entitle him to an injunction.
The court held that the definition of land includes trees which may be growing on the land and the respondent did not have the capacity to question the manner in which the applicant acquired his title deed as the validity of the title deed was not in issue.
The court held that the applicant had established a prima facie case with a likelihood of success as against the respondent and agreed with the applicant that unless the orders sought were granted the applicant would suffer irreparable loss as all the tree on his land would be cut down and ferried away by the respondent. The applicant had therefore satisfied the tests for grant of temporary injunctions. The court also held that the balance of convenience tilted in favour of the applicant.
The court granted the orders sought by the applicant and directed him to mark out the boundaries of his land if the same were not clear so that the respondent may exclude it from its operations. The court also awarded costs of the application to the applicant.
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.
This matter determined whether the principles of granting an injunction should be applied differently in environmental litigation.
The applicants sought an injunction to restrain the respondents from mining and excavation activities which were likely to trigger environmental and health problems. The respondents argued that they were not mining but prospecting and had a license to do so.
The court determined that the applicants had the necessary locus standi by virtue of being persons entitled to a clean and healthy environment as per s3(2) of the Environment Management and Coordination Act (EMCA).
The court determined whether the grounds for the grant of an injunction were satisfied by the application. The court noted that breaches of the environmental statute must be looked at without the trappings of the law on injunctions but rather in line with the principles under s3 of the EMCA.
The court established that anybody who intends to mine or conduct prospecting activities is required to submit a project report and an Environmental Impact Assessment (EIA) to the National Environment Management Authority (NEMA) as per s58 of the EMCA. It was further held that where the provision is not complied with, it is immaterial whether such person had a license. The court found that the respondent failed to comply with the provisions of the act and declared the respondent’s activities illegal.
The injunction was granted since the environmental factors were not taken into account before the project commenced.
The court considered an appeal, whereby the plaintiff was claiming pecuniary damages incurred for cleaning up an oil leak into the harbour, for which the defendant was allegedly responsible.
The defence pleaded that the suit was misconceived and that the alleged loss and damage were not recoverable in law. Further, that the plaintiff disclosed no cause of action and that the case ought to be dismissed. The plaintiff relied on two causes of action, the first in negligence and the second, in terms of the strict liability rule.
The high court held that the only damage proved to have been caused by the oil leak was to the sea water surrounding the harbour, and that the plaintiff did not own that water. Thus, the plaintiff had not suffered any damage to its property and further that in bringing oil to its land in the port area, the defendant was not making a non-natural use of the land.
On appeal, the court held that the plaintiff suffered no actual damage to any of its property as water was not the property of the plaintiff, and pecuniary loss arising out of purely precautionary measures taken to clean up pollution, which might cause damage to property, is not recoverable at common law. It held that the storage of oil on land by a person licensed to generate electricity there, the oil being essential for the production of electricity, did not amount to a non-natural user of the land.
The petitioners in this matter contented that since 1998, the fourth and fifth respondents had played excessively loud music at night thus causing the petitioners and other residents sleepless nights. The respondents operated an entertainment spot located near a residential area and learning institutions and whose main entertainment menu was the playing of very loud music. The petitioners alleged that the noise interfered with their peace and quiet enjoyment of their properties and violated their right to a clean and healthy environment.
In order to prove that the noise and vibration levels from the respondent’s restaurant were excessive, the petitioners used self-made instruments that were not approved by a relevant lead agency or any person appointed by the National Environmental Management Authority.
This was against the requirements of the Environmental Management and Coordination Act. Therefore, the petition had to fall, although the learned Judge noted that the petitioners had a noble claim.
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  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.
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.