Environmental Case Law Index

The court considered an urgent application regarding quarrying activities, wherein the applicants sought, amongst several other grounds, to interdict the 1st and 2nd respondent from carrying out blasting and quarrying activities, pending the finalisation of the damage caused to the applicants’ houses.

The 3rd respondent operated a quarry for materials needed for the construction of mountain roads and in order to perform their job, blasting was required in order to loosen up the materials. Prior to the commencement of the work photographs of the houses within 500-meter radius of the quarry would be taken, in order to monitor and evaluate the effect of such blasting. 

The respondents argued that the applicant had refused to have the liaison committee survey their buildings to detect the damage incurred due to the blasting. 

The court considered whether the matter was urgent. It found that even with the applicants’ refusal, the buildings had been photographed and numbered to facilitate the assessment of damage following the blast. 

On determining whether the matter was inherently urgent, the court found that the applicants were at all times aware that the blasting had occurred, yet they did nothing. On this basis, the court found that the applicants rights were not being impaired and as such their interdict was not granted. Accordingly, the application was dismissed.  

The court considered an application against the decision to suspend the applicant’s license and for compensation as a result of the suspension or non-renewal of his digging license. The applicant was a diamond digger, who found a large diamond and upon enquiring from the mining advisor of the 1st respondent how to dispose of the diamond and to have it valuated, he decided to keep it, until the diamond went missing. The duty of the advisor was to issue digging licenses and to ensure diamonds were sold legally and correctly. Once the advisor noticed that the diamond was missing, he reported to the government representative. 

In terms of his digging license, the applicant worked as part of a co-operative society and a mined diamond belonged to the co-operative to be sold. The applicant argued that the reason the diamond was not kept in a safe place, and rather in a grave, and not reported after it went missing was due to the advisor wanting to benefit from the sale. 

The court found that there was no reason for the 1st respondent to lie, and in fact it was the applicant who wished to be the sole beneficiary and to gain from the black-market sale. It held further that there was no possibility that the diamond went missing by accident. Accordingly the application was dismissed.  

The matter dealt with an application by the applicants against the respondent’s decision to remove them from and refuse them permission to sell their goods. The applicants were street vendors along the Kingsway Street. The 1st respondent had ordered them to relocate, which the applicants refused as the conditions were unfavourable. As a result, the applicants were removed. The applicants argued that in terms of s 5 of the Constitution, by forcing them to relocate their right to life was infringed as it denied their basic means of a livelihood.  

The court considered whether the applicants’ removal from the Kingsway Street, was a violation of their right to life. The court found that “life” can be defined as a mammalian biological existence, and in a wider sense, it can be defined as the deprivation of human life itself. In this instance, the court held that the opportunity to trade should be viewed and weighed against other competing interests and values. 

The court observed that, trading as a street vendor was a deliberate choice and not the only alternative to a living.  Thus, the interests and values of livelihood were outweighed. In conclusion, the court found that to include the right to trade as one’s livelihood in the constitutional right to life would lead to absurd results. Accordingly, the application was dismissed.

This was an appeal in the Court of Appeal against a judgment of the High Court which had dismissed an appeal to it against a judgment of the Judicial Commissioner’s Court, the effect of which was to uphold a decision of a local court. The issue concerned the removal of wood from a plantation by the appellant, which the respondent contended belonged to the community of which he was a headman. The appellant’s reasoning that the plantation was situated in his grandfather’s field was rejected by the court which ordered the appellant to desist from using the plantation and never to use it. The appellant was not satisfied with the ruling, so he appealed unsuccessfully, first to the Central Court, then to the Judicial Commissioner’s Court and finally to the High Court.

The issue for the court’s consideration was whether the local court had the jurisdiction to hear the matter. 

The court observed that the matter concerned provisions of the Chieftainship Act 22 of 1968 pursuant to which the judge held that the finding by the Office of the Chief did not preclude the appellant from seeking recourse in the Local Court. The court upheld the High Court judge’s view that the dispute between the parties was not a dispute involving claims to; title, exemption from title, or overriding title. Therefore, the submission that the dispute must be dealt with in the Land Court or the District Land Court was not upheld. The appeal was dismissed with costs.

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.

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.