Environmental Case Law Index

This was an appeal against the decision of the High Court to dismiss an application for review of an application for the setting aside of a decision made by the second respondent, the Member of the Executive Committee of the Department of Agriculture, Conservation and Environment, Mpumalanga (the MEC), and upheld on appeal by the first respondent, the Director General, Environmental Management, Mpumalanga, (the DG). The decision in question was to permit the construction of a filling station in White River. The appellant contended that the permission was given contrary to the provisions of the law. 

The court observed that all environmental precautions had been taken into account by the scoping report. It found that the land had been rezoned by the local authority from special area to a business area, based on need and desirability. The court held that that the key factors’ in deciding to grant the application in the circumstance were: firstly, that the property had been rezoned from “special” to “business”; secondly, that no potential threatened plant and animal species were recorded during the site investigation; and, that all identified and perceived impacts were satisfactorily dealt with in the scoping report and the recommendations proposed were sufficient to minimize any negative impacts. Since all this were observed. The appellant case was dismissed with cost.

This was an application for a temporary injunction to restrain the defendant from developing the land until it obtained a positive environmental impact assessment, causing excessive noise and dust pollution from his property.

The applicant contended that the defendant was interfering with its right to a clean, safe and secure environment and, that the plaintiff’s tenants were unable to occupy the plaintiff’s premises due to nuisance and pollution on the defendant’s property.

The court determined whether the plaintiff had the necessary locus standi.

The court noted that non-compliance of statutory provisions or conditions made there were of a public nature and could have been dealt with by reporting to the Nairobi City Council officials,and the Commissioner of Lands. It was further noted that the grievances on non-compliance with provisions relating to environmental impact assessments should have been dealt with by the National Environmental Management Authority. For these reasons, the court held that the plaintiff lacked locus standi to institute the suit. Consequently, the application was dismissed with costs.

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.

Application successful. 

The court considered a final appeal against a decision by the Court of Appeal to dismiss the plaintiff’s first appeal against the judgement of the Trial Court. 

The origin of this matter was a writ of summons issued to the respondent for payment of money that was deposited as compensation by a third party for their mining operations. The respondent then filed a cross-action seeking a declaration that he was entitled to the compensation and an injunction restraining the appellant’s from claiming the money. 

The suits were consolidated and the trial judge gave judgement in favor of the respondent after having found that land used for the third party’s mining operations belonged to him, not the appellant. The appellant then filed an appeal which was dismissed by the Court of Appeal. Still dissatisfied, the appellant filed this final appeal calling upon the Supreme Court to review the lower court’s decision and to finally determine the matter.

The court found that the lower court adequately considered all the relevant issues. It further found that the High Court of Imo State had requisite jurisdiction to hear the case. The court noted that the appellant stretched the meaning of s 7(1)(p) of Decree No. 60 of 199, beyond reasonable limit by purporting that it ousted the High Court’s jurisdiction in matters of compensating land owners.  

The court concluded that the appeal was without merit and deserving of punitive costs. The appeal was dismissed.

The court considered an appeal against the judgment of the court below declaring the defendant a tenant, alternatively a licensee of the plaintiff, as well as determining the 2nd defendant’s misgivings concerning the costs awarded against him.  

The defendant argued that the land devolved on the chief but was subject to use by both parties’ families. The second defendant was joined as a co-defendant, alleging that the land was founded by his ancestor and that he and his predecessors had been in undisputed possession. 

The defendants argued that the judgment was granted erroneously as the trial judge failed to correctly define the boundaries between the parties’ land.  

The court found that the trial court had adequately defined the boundaries between the parties’ land and that the first defendant’s ancestor and his people had lived on the land for over 300 years. Thus, although the plaintiffs are the land owners, the defendants are in possession and their possessionary rights should not be disturbed by an injunction. 

The court found that in a case that has been on the list for 25 years, costs of ¢1,200,000.00 against 1st Defendant and ¢950,000.00 against 2nd Defendant awarded by the Court in my view is stretching judicial generosity to it limit. I am unable to review the costs mulcted against the Defendants. The appeal by the 2nd Defendant/appellant fails as well as that of the Plaintiff/appellant. In the circumstances the judgment of the lower Court is affirmed.