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 by the state to recall witnesses in a trial in which the accused stood charged in the main count with theft of diamonds, or alternatively with possession of diamonds in contravention of Proclamation 17 of 1939. The court had dismissed the main charge on the basis that the link between the objects which were found in possession of the accused, and which were ultimately valued and identified as rough and uncut diamonds, did not exist. However, the state relied on the alternative and requested the court to recall witnesses to prove that these objects were in fact rough and uncut diamonds.
The main issue was whether it was necessary to recall witnesses for the fair adjudication of a case.
The court stated that where the evidence of a witness was necessary for the fair adjudication of the case, the court was obliged in terms of s 167 of the Criminal Procedure Act 51 of 1977 to recall that witness or those witnesses.
The court established that the evidence was necessary for the fair adjudication of the case between the State and the accused, in the sense that a person who was guilty on that charge might be acquitted but that the giving of such evidence would not lead to an innocent person possibly being found guilty.
The court, therefore, held that the evidence was essential for the fair adjudication of the case and granted the application by the state.
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.
Civil Procedure – application for absolution from the instance – Rules of Court - Rule 100 – principles governing the application discussed – requirement for absolution from the instance - whether or not the plaintiff set out a prima facie case – Law of Evidence - whether failure to examine an expert who has filed his report results in the court attaching no value to the expert report – commercial value attached to the Exclusive Prospecting Licence – court’s discretion on how the value of the EPL License is computed.
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.
Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.
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 applicants sought to interdict and restrain the respondent from continuing to refuse access to a parcel of land, based on the respondent refuting an existing and enforceable prospecting right which was held by the applicants.
The court considered whether a prospecting right becomes an enforceable limited real right upon registration in the Mining Titles Office and held, it was universally accepted that mineral rights were real rights. Thus, prospecting rights were limited real rights in respect of the mineral and the land to which such rights related.
The court held that a distinction is drawn between the date the right becomes effective and the date of registration. The right becomes effective from the date of approval and subsequently needs to be registered within 30 days of it becoming effective. Therefore, the prospecting right will become enforceable from the date it is effective. The court found that to interpret the Mineral and Petroleum Development Act to mean that a prospecting right becomes effective but remains unenforceable because it has not been registered, would be impractical.
The court found that the respondent’s refusal was primarily a point of protecting his right as a landowner and to the protecting against being arbitrarily deprived of one’s property. Irrespective of the fact that the applicants renewed their prospecting right, the right remained in force until such time as the renewal had been granted or refused. Thus, the applicants had a valid and existing prospecting right and were entitled to access the land to complete their operations.
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 court considered a petition whereby the petitioners averred that they were land owners on which a wind farm was to be developed. The respondents bought the project rights from the initial owners whose application for the construction of the farm had been successful and sought to expand the farm. They obtained permission from the National Environmental Management Authority (NEMA) by renewing the initial project application.
The petitioners alleged that this was against the provisions of the Environmental Management and Coordination Act and the Constitution as the expansion was not implemented in accordance with the law and would violate their constitutional rights to a clean and healthy environment and their rights to own property. The expansion entailed the farm would encroaching onto their surrounding properties.
The issue faced by the court was whether the expansion was legal and whether the rights of the petitioners had been violated or not.
The court held that the expansion could not be logically carried out at the site captured in the original Environmental Impact Assessment and the EIA study report initially filed with NEMA. It could therefore, not be renewed. They had to file a new application and therefore the renewal of the application was contrary to law.
This failure to adhere to the EIA regulations potentially threatened the petitioners’ right to a clean and healthy environment but not their right to own property as the farm did not make use of their land nor did it threaten to use it up.
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 applicant was a holder of a mining right and was conducting open cast mining operations. Due to changes to the applicant’s mine, they submitted an application to have the EMP amended. The 1st respondent directed that the applicant was to submit a revised environmental liability report in order to cover the inherent risk related to the proposed project, thus they need to provide funding to cover a worst-case scenario.
The crux of the issue concerned the powers conferred on the 1st respondent to approve EMP’s and amended EMP’s. The court found that the applicant’s amended EMP would, if implemented successfully, result in the partial backfilling and flooding as part of its mine closure process, thus creating a dam to supply water to the local community and resulting in a practical closure of the mine.
The court found that the conditions imposed were unreasonable and irrational and that the 1st respondent failed to take cognizance of all relevant conditions. In addition, the decision to impose the conditions and require financial provisions as a worst-case scenario, was ultra vires (acting beyond one’s legal power or authority).
The court found that the 1st respondent committed an error of law when making his decision which he was not entitled to make within the powers vested in him.
Review upheld and decision set aside.
The applicant, sought to review and set aside the 5th respondent’s decision on 3 grounds 1) it failed to adhere to the audi alteram partem principle, 2) the decision was unreasonable, and 3) there was a perception of bias.
The applicant was formed to manage the Long Beach development on behalf of individual members, which gave them the powers to make applications for environmental authorizations.
The audi alteram partem principle entitles affected parties to make representations. The applicant contended that it was denied this opportunity when the 5th respondent made its decision.
The court found that there is a distinction between reasons advanced in support of a decision and concerns that may relate to matters which are not properly addressed. Held, that an uncertainty suggests a lack of clarity to enable the decision maker to apply his mind. However, if an uncertainty is created, the decision maker should afford the applicant an opportunity to answer, and settle those concerns. The court found that the fifth respondent’s actions, in not allowing the applicant to respond, denied it of its right curtail uncertainties and failed to adhere to the audi alteram partem principle.
On the basis of the applicant’s additional grounds, it was found that the arguments for unreasonableness and bias were not sustainable.
The court set aside the 5th respondent’s decision and referred the matter back, to allow the applicant to respond to any uncertainties.
The court considered an appeal against a decision in the Environment and Land court, declaring that the respondent had trespassed on the applicant’s premises and that the respondent be ordered to vacate the area and demolish and structures it had erected.
The respondent alleged that it had settled in the area 45 years prior and had inherited the land from his father.
The appellant alleged it had purchased the property in 1994 but had not occupied or used the land. The lower court held that by the time the action was brought in 2008 there was evidence that the respondent had been in occupation for a period of time that would entitle him to raise the defense of limitation, and after the expiration of over 12 years, the appellant was precluded from bringing an action to recover the premises.
The question was whether the respondent had been in possession of the premises for over 12 years as at the time the suit to evict him was instituted in 2008, and whether his possession was averse to that of the appellant?
The court held that the relevant period would be between 1994, the date of registration of the appellant as the proprietor, and 2008, when the suit was filed. It held that the period translated to 14 years which meant the respondent could legitimately base his claim and dealt with the premises as if it was exclusively his. Thus dispossessing the appellant of its right to the land.
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.
The court considered whether an interim interdict could be granted to stop short-term remedial measures which were put in place to treat acid mine drainage (AMD).
To determine whether to grant the interim interdict, the date on which the ECL would be reached was critical. The court found that pursuant to the date being determined, the court was to apply the precautionary principle, which requires authorities to insist on adequate measures to safeguard against the contamination of underground water.
The court found that the ECL could not be determined and based on the short-term project, the greater the danger and consequences of untreated AMD is averted.
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 required the Supreme Court’s advisory opinion in line with art 163(6) of the constitution. The reference concerned land administration and management powers of the National Land Commission versus those of the Ministry of Land, Housing and Urban Development.
The main issue for determination was whether the Supreme Court had the jurisdiction to render an advisory opinion- on the powers and functions of the National Land Commission namely, those of the Ministry of Lands, Housing & Urban Development.
The court noted that it proceeded on a case by case basis in determining whether to exercise its advisory opinion jurisdiction. It was held that the instant reference met the admissibility requirement as set out in art 163(6) of the constitution but on condition that the court shall adopt a re-framed set of issues for consideration. However, the court found it premature to render the opinion at that moment and ordered the parties to undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.
Judge Njoki SCJ dissented and held that the majority ruling was against the spirit of art 163 of the Constitution. Mainly because the questions posed were not subject of the court’s advisory opinion since they had no direct correlation with county government.
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.
This case concerned the obligation of public authorities to prevent and remediate damage caused by natural disasters. The applicants argued that the respondents had constitutional and statutory duties to remediate the flooded area and to reasonably prevent future harm. They further contended that the respondents fell short of these duties. This was not contested by the respondents and, in fact, largely confirmed by an internal memo.
The High Court considered whether the application for a mandamus interdict ought to be enforced against the respondents following their alleged failure to remediate significant damage to the applicants as a result of flooding, which led to blocked culverts, exposed them to increased risk of future inundations, as well as increased levels of water pollution.
The court held that the applicants had a constitutional right to a safe environment and that the respondents had legal duties to remediate the flooded area and reasonably prevent future harm. Given that no post-disaster rehabilitative work had been conducted and no explanation for this failure had been provided, the court found that the respondents fell short of their duties. It further held that the constitutional rights of the applicant outweighed any inconvenience for the respondents to fulfill their duties.
Consequently, the court directed the first respondent to immediately remediate the flooded area and to clean the culverts to prevent future damage. The first responded was further ordered to provide the applicants with regular feedback concerning its implementation of the orders.
The court considered a petition to have a decision handed down by the Ministry of Devolution and Planning quashed and declared unconstitutional.
The petitioners were Embobut Forest dwellers which shared a common border with five other clans. The petitioners alleged that they were genuine evictees and internally displaced persons who were aggrieved, ignored and not compensated when the respondents harmonized their registers.
The petitioners argued that their constitutional right to a clean and healthy environment had been infringed and that they had not been appropriately compensated. They alleged that they ought to have been compensated like any other squatters and that they had been discriminated against.
The court found that the arguments put forward by the petitioners were non-justiciable. Justiciability refers to the types of matters the court can adjudicate on. In this instance, the court found that the harmonization of the register of the petitioners was a political question, and not a legal one.
The court found that the purpose of compensating those who were in illegal occupation of the forest was to give effect to their right to property. However, the court found that the petitioners did not demonstrate that they were part of those who illegally occupied the land, and thus could not be compensated. Further, the court found that the petitioners did not demonstrate that any of the constitutional provisions had been violated, thus their petition was without substance.
The court considered an application for judicial review on the ground that the decision of a magistrate to grant an injunction was ultra vires (i.e beyond the powers). The applicant contended that the magistrate lacked jurisdiction to make such an order and as such the order was a nullity. The respondent argued that the application was misconceived; that it had jurisdiction and that the applicant had failed to lodge an appeal which meant that the remedy of judicial review was not available to it.
The court considered whether the respondent had the jurisdiction to consider the matters before it. The court also considered whether the applicant exhausted other equally convenient, beneficial and effective alternative remedies which were available under the law.
The court found that although the application was brought in terms of the Forests Act, such dispute ought to have been brought before the National Environment Tribunal.
The court found that the learned magistrate acted without jurisdiction and in excess of statutory authority, contrary to Section 63(2) of the Forests Act to receive, entertain, hear and otherwise deal with the said case as the proper forum to hear and determine the interested party’s claim, would have been the National Environment Tribunal. On this basis, the decision issued was ultra vires and thus a nullity ab initio. Accordingly, the court set aside the decision of the magistrate.
This application sought a review of regulations requiring a 24-month period for lions to be fending for themselves in an extensive wildlife system before the lion would be hunted (self-sustaining provisions).
The court accepted a request by both parties to determine the validity of the regulations as if they were applicable to lions regardless of the omission of lions in the 2008 amendment.
It was also found that the applicantÕs argument that the predator breederÕs industry should be represented on the scientific authority was not a ground for review.
The court considered whether the Promotion of Administrative Justice Act of 2000 (PAJA) was applicable to the making of regulations and held that regulations are administrative actions according to PAJA.
Secondly, the court considered whether sufficient opportunity was provided for the applicant to make representations to the panel. The court considered s3(5) and s4(1)(d) of PAJA that allows a procedure that is fair but different from PAJA provisions. The court accepted that in some instances procedural fairness requires provision of a further opportunity to make representations. The court found that the respondent acted fairly and had no way of knowing the applicantÕs attitude on the self-sustaining provision since they considered the applicantÕs letter of 2006 and the applicantÕs opposing letter of 2007 was received after announcement of the regulations.
Thirdly, the court considered whether there was a rational basis for the self-sustaining provisions. The court appreciated the fact that the hunting of lions bred in captivity has damaged the reputation of the country and the principle of fair chase. It was held that the provisions were rational since they would prevent the hunting of lions that are completely dependent on humans. Consequently, the court also held that the provisions were reasonable.
Accordingly, the application was dismissed with costs.
The court considered an appeal against the decision of the court below, dismissing an application for judicial review. The issue for consideration was whether the doctrine of res judicata applied to judicial review.
Res judicata refers to a matter which has been heard by a competent court and cannot be pursued further by the same parties.
The 16th respondent alleged that the Minister had used the information from them to grant permits to the parties named as interested parties, in respect of the concerned areas and that such licenses should be revoked. Further that the interested parties cease operations in the areas immediately.
The court below dismissed this, prompting a review by the 16th respondent, who sought an order “compelling the respondents to vacate and stay out of the disputed areas. This was based on the interested parties trespassing on the disputed land.
The interested parties argued that the court could not entertain the matter because of the principle of res judicata. However, the court below held that res judicata did not apply to reviews.
The court in this instance held that the basis upon which the 16th respondent instituted the previous judicial review application was essentially the same basis upon which the subsequent judicial review application was based and was thus res judicata. Further, that the subsequent judicial review application was not only barred by the doctrine of res judicata, but was also an abuse of court processes