Environmental Case Law Index

This High Court case concerned an appellant that had been convicted for contravening section 87(1) of the Land Act of 1979. The charge was that the accused (now appellant) did unlawfully and intentionally occupy land without proper authority. The appellant held the land and had agricultural license. When the land was declared urban land, the appellant continued to farm it, hence the accusation.

The main issue to be determined on appeal was whether the appellant was occupying the land in contravention of criminal code after the land was declared urban land.

The High Court held that the appellant did not contravene any
criminal code since the commissioner for land did not take steps required in law to nullify the pre-existing licenses. In that view, since the license held by the appellant was still intact even after declaring the land urban, the appellant was lawfully occupying the land.

The appeal was, therefore, upheld.

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.

The court considered an appeal against the judgment of the lower the court in in that the lower court erred in law by handing down the judgment in favour of the respondents. 

The appellants argued that 1) the court had failed to acknowledge estoppel as part of the law of Lesotho. 2) that the learned judge erred in not finding that the respondent was precluded from seeking the relief by virtue of estoppel and 3) that the court had no power to make the order of costs.

On the question of whether the court was empowered to make a costs order, since it was not legislatively empowered to do so, the court held that despite the express powers in statute, the court had the capacity to make such order for reasons to do with justice. 

On the withdrawal of the appeal, the court held that any party which wishes to withdraw an appeal must do so unequivocally. A litigant cannot unilaterally impose conditions on a case withdrawal to which an opponent and the court are enjoined. 

The appeal was struck off the roll with costs.

The court determined the test for applying its discretion to allow an application for an order for the production of documents during the course of proceedings as per rule 34(14) of the High Court Rules of 1980.
The applicants had previously requested for the production of some documents relating to the grant of mining leases before the trial started but made no attempt to enforce the discovery notice a year later into the proceedings. Thereafter, the applicants made a counter application for production of further documents but never pursued it. The reason for this was the belief that the fifth respondent was no longer represented in the proceedings. The applicants then launched this application against the fifth respondent.
The court made a consideration of the element of delay, insofar as it prejudiced the opposite party by preventing them to bring back their own witnesses and the materiality of the evidence in so far as it was practically conclusive.
It was held that the applicants failed to give an acceptable explanation for the delay for requesting the two sets of documents since they could not prove that they became aware of the documents sought at a later stage.
It was also held that the fifth respondent had not formally withdrawn from the case and would be prejudiced if the discovery was allowed,mainly because they could no longer bring back their witnesses and put the documents in cross-examination.
Accordingly, the application was dismissed.

The matter dealt with an appeal in which the respondent had commenced proceedings in the Local Court against the appellant and his mother for trespassing in a forest. The appellant denied the trespass and claimed that the forest had belonged to his father and that he was the heir. The court delivered a very confusing judgement which was hard to comprehend and so the respondent sought an appeal that would see the Magistrate’s Court revisit the matter.

The magistrate reviewed and set aside the matter issuing a new judgement. The principal question was if the magistrate had the power to review the matter from the local court.

Section 26 of the Central and Local Courts Proclamation granted magistrates the power to review matters but that such a magistrate must not constitute himself a court of appeal and arbitrarily interfere with the working of the lower court. He was empowered to ensure that there were no irregularities on the face of the proceedings or prejudice or bias in a decision given by the President of a Local or Central Court only.

The court in this matter therefore, found that the magistrate, by setting aside the decision of the local court and delivering an alternative judgment was exercising an appellate function which was beyond its authority. The court found that it could not consider issues of law in the present matter and referred the matter back to the local court for review as should have been done by the magistrate.

The court had to review an earlier decision by the same court. The accused was charged with contravening the Precious Stones Order of 1970 for wrongful and unlawful dealing in rough and uncut diamonds as a buyer or seller and for possession of uncut diamonds without a licence. The accused had pleaded guilty to all charges and convicted. 

The court at hand had to decide on whether the first count of wrongful and unlawful dealing was appropriate in the circumstances and whether the charge and conviction should be amended. 

The prosecutor relied on the testimony of the member in charge of the digging area who stated that when he searched the accused, he found three rough and uncut diamonds in her possession and upon requesting a valid dealing license, she failed to do so. There was no indication that the accused was going to sell those diamonds.

The court held that at the time the accused was apprehended she was not dealing in diamonds, but she was merely in possession of them. For there to be a crime there must be an act or on omission, a mere subjective contemplation of future criminal conduct which does not find outward expression indeed or omission is not criminally punishable.

The court held that the correct charge ought to have been one of possession and nothing more and ordered that the charge be amended accordingly. It however maintained that the previous sentence was adequate.

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 court considered a petition brought by the applicants against the decision of the Director of Public Prosecutions to charge them with murder. 

The petitioners argued that they were employed as rangers in the Wildlife Service and being lawfully armed in the course of their duties, they confronted suspected armed poachers and shot two of them. They contended that the failure to hold an inquest as prescribed by ss 385 and 388 of the Penal Code, before they were charged amounted to a breach of their constitutional rights.

The court considered whether the applicants used their weapons lawfully and in the course of their duties. Further, whether under the circumstances, an inquest was a prerequisite. 

The court considered the import of ss 386, 387 or 388 of the Penal Code and found that in the circumstances it was clear that an inquest ought to have taken place.  Further, it observed that while the respondent proceeded as if an inquest had been conducted, no inquest, as known in law, was ever conducted and the “inquest” the investigators passed off as having been conducted, had no legal basis. 

The court held that the decision to charge the petitioners with the offences of murder violated article 157 (11) of the Constitution and by the same token infringed on the petitioner’s rights under articles 27(1), 47 (1) and 50 (1)(2) of the Constitution

Accordingly, the court allowed the petition and declared the decision of the DPP to charge the applicants a nullity.

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 against various statutory bodies and offices, who were responsible for land. The petitioners contended that the land in question had been jointly purchased by their late fathers but they were tricked by the respondents, on various occasions, when their land was acquired forcibly without compensation. Subsequently the respondents declined to issue them with a title, purporting that they had surrendered their lease titles for further subdivisions.  

The respondents alleged that the petitioners had no standing to institute proceedings and that this was an abuse of process, as parts of the land had been sold and payment received by the deceased parents.

The court considered whether there had been a violation of the petitioners’ right to property. The court found that the act of the first respondent of surrendering back to the government part of the parcel of land, which was bought by the petitioner’s father, was an act of compulsory acquisition which required compensation. The respondents failed to show that such compensation had been given. 

In conclusion, the court upheld all the petitioners’ prayers and ordered that they were entitled to Kshs. 4,132,942,326.49 billion, being fair compensation for the loss of land with costs to the petitioners.

The court considered a petition against the government’s  failure to recognize the petitioner’s right to property and the right to just compensation when it deprived a person of their property. The case involved the construction of a standard gauge railway (SGR) through private land. The petitioner contended that his right to property and just compensation had been violated and that the third respondent had failed to ensure that the appropriate environmental and social impact study of the SGR was undertaken.

The court considered firstly, whether the compulsory land acquisition was carried out in accordance with the Constitution and the law, and secondly, whether the construction of the SGR was in compliance with environmental laws and the Constitution. 

The court found that the first respondent had accorded the land owners with the requisite notices and at the enquiry, as required by law, many obliged to the acquisition and were paid. Further, that the petitioner’s reliance on a repealed act was unsupported, and that he had not shown any substantive section of the Land Acquisition Act that was misapplied by the respondents through the process of compulsory acquisition, thus there was no violation of the Constitution. 

The court found that an environmental impact assessment had been conducted and that the respondents took into account, all environmental considerations including sustainable development. Accordingly, the petition was dismissed.

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.

Petition successful.

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.