Environmental Case Law Index

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.

The court considered a summons to strike out a notice of appeal. The respondent, as applicant in this case, applied to the court for an order that the notice of appeal be struck out with costs on the grounds that it was obviously frivolous, vexation and an abuse of process. The respondent (applicant), contended that the appeal was not competent as it purported to bring up matters that were not raised in the court below for the assessment hearing.

The court considered whether the appeal was admissible or whether it constituted an abuse of process and should be struck out. It was held that the respondent (applicant) needed to satisfy the court that the grounds of appeal were obviously frivolous, vexation and an abuse of process.

The court found that the appellant was not challenging the judgement or liability, but merely the quantum of damages arrived at following the assessment of damages. This, the court held, could not be interpreted as an attempt to re-litigate the matter, as the respondent (applicant) alleged. The court, therefore, concluded that it could not be said with any degree of certainty that the appeal was obviously frivolous, vexation and an abuse of process. 

Accordingly, the application failed and each party was ordered to bear its own 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 an application for the continuation of an interlocutory injunction which was granted to restrain the defendants from entering, cultivating, occupying or developing on the plaintiff’s land.  The plaintiff’s father gave him customary land, which he cleared himself and the land was later subdivided.  The first defendant alleged that he held a right to the land on account of the growing population of the family.  

The court held that an interlocutory injunction is a temporary and exceptional remedy which was available before the rights of the parties had been finally determined. The first issue for the court to determine was whether there was a triable issue. It found that there were pertinent questions regarding the land that had to be determined at trial. The court then considered the issue of compensability, that is, the extent to which damages could be an adequate remedy. The court found that every piece of land had its own unique value and damages would be an inadequate remedy and as the value was difficult to quantify. 

The court found that if the interlocutory injunction was not extended the plaintiff would suffer irreparable harm and justice demanded that the land remain intact until the action was determined. Accordingly, the application succeeded.

This was a preliminary application for a stay of hearing in order for the matter to be referred to arbitration owing to the existence of an arbitration clause in a Royalties Agreement (RA), entered into in relation to the parties’ mining operations. The main matter involved an application for the discharge of leave to move for judicial review on a decision by the respondents to cancel a mining licence.

The court considered whether the judicial review proceedings should have been stayed owing to the existence of an arbitration clause in the RA; and whether the preliminary objection was or was not caught by the provisions of s 6(1) of the Arbitration Act.

The court noted that the main issues for determination revolved around two agreements: the Mining License (ML) and the (RA). The court found that the two agreements ought to have been applied as one agreement. This was mainly because the RA, was an agreement made pursuant to a provision in the ML, and secondly, because the RA provisions were the very ground upon which the ML was purportedly terminated.

The court therefore held that the arbitration clause was applicable. However, the court went on to hold that s 6(1) of the Act precluded the applicant from referring the matter arbitration after it had taken steps in the proceedings or delivered pleadings. The court found that the evidence was clear that the applicant had taken steps in the proceedings. Accordingly, the applicant could not rely on the arbitration clause.

This was an appeal to the High Court against the decision of a magistrate to dismiss the appellant’s claim which concerned a dispute over a customary piece of land. While the appellant stated that the part of the land in dispute was his, the respondent maintained otherwise. 

The issue for determination was whether the land belonged to the respondent or the appellant. The court held that in civil cases, the evidence was on a balance of probability. As such, the respondent’s evidence that he was the one given the land by the chief carried more weight and was therefore convincing. The court further held that customary lands were owned communally, which meant that the chief did not own the land as his belonging. Therefore, the court stated that the chief did not have the power to deprive one person of land and give it to another. In conclusion, the court upheld the decision of the court below and accordingly dismissed the appeal.

This was an appeal against the decision of a magistrate to order the appellant to vacate a disputed piece of customary land. The appellant applied for a stay of execution of judgment pending appeal.

The two issues for the court’s determination were, whether the appellant was duly allocated the piece of land according to customary law, and whether he had the right of usage and occupation. The court applied the burden and standard of proof based on a balance of probabilities, and ss 2, 25 and 26 of the Land Act which regarding title and ownership of customary land.

The court found out that the respondent had left the land unattended for a period of 13 years and, although this did not remove his right of usage and occupation, the status quo could not be maintained. The court observed that, the land was lying idle when it was allocated by the Group village Headman to the appellant who in turn redeveloped it by building a house, a grocery store and planted trees and fruits. The court held that the respondent sat on his rights and allowed the appellant to develop the land. The court also found that respondent’s conduct had been unreasonable during the time that the appellant developed the land.

In conclusion, the judge held that the appellant was duly allocated the piece of customary land according to law and that he then had permanent rights of usage and occupation. Accordingly, the appeal succeeded 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.

Customary Law – Communal Land – Communal land rights – Power to evict a leaseholder from a communal land – Whether the Communal Land Reform Act, 2002 empowers a leaseholder to cancel a sub-lease and evict a sub lessee from a communal land area.

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 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.

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 plaintiff was claiming outstanding water use charges together with interest from the defendant. 

The court determined if sea water can be owned or managed, and if so by which statutory body. The court  held that art 260 of the Constitution defined land to include marine waters in the territorial sea and thus disagreed with the defendant’s argument that sea water is not capable of ownership. It was further held that the National Land Commission was the only body empowered to administer and manage the territorial sea, the exclusive economic zone and the sea bed on behalf of the people of Kenya.

The court noted that the Water Act and the Water Resources Management Rules lacked specific provisions that included sea water as a water resource for the purpose of levying charges for the use of sea water. It was therefore held that the plaintiff lacked the locus standi to levy charges for use of sea water.
 
Accordingly, the case was struck out with costs to the plaintiff.