Environmental Case Law Index

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 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

Appeal upheld.

This was an application for an injunction order by the plaintiffs to restrain the defendants from harvesting trees without consulting and involving the community. The court had to decide on the following: whether a community that was a beneficiary of a forest had capacity to commence proceedings against the illegal and irregular harvesting of timber and fuel wood materials from the forest; whether public participation was mandatory in the management of forests; and whether the Director of Kenya Forest Service (KFS), the first defendant, could be sued in their capacity as a director.

The court held that there were no provisions in law which barred any suit against the first defendant in that capacity. The court observed that the community had an interest in the preservation and sustainable use of the forest. As such, public participation was an important component of environmental management as enshrined in the constitution. However, the court pointed out that there was no public participation that was demonstrated by the respondents. On the lack of a management plan by the KFS, the court held that it was difficult to know when a tree was planted or harvested, thus creating difficulty to prove which trees were to be cut. The court held that the balance of convenience weighed in favour of the applicants because environmental interests far-outweighed private interests.

Accordingly, the court ordered the respondents to stop harvesting trees, pending the hearing of the suit.

The court considered a petition whereby the petitioner sought an order of certiorari to quash a Gazette Notice declaring his land to be forest land. The petitioner had entered into a sale agreement with the original owner of the land by which the parties agreed to a down payment upon successful application to the land control board. The Petitioner took immediate possession and contracted to pay the balance of the purchase price after the maize season. The application was made and rejected due to the Ministry of Natural Resource’s interest in the land. Subsequently, the land control board met and the petitioner’s application was granted, however, the land was transferred to the government  and marked a forest.

The petitioner argued that during the dispute, its members were harassed and evicted from their farms, with their houses being torched. 

The court found that there was no doubt that the petitioner had entered into a sale agreement. Further, the control board acted in a manner to deny the petitioner the land. The court found that based on a letter received from the Commissioner of Land, there was a clear acknowledgment of foul play in the manner in which the government came to buy the land. Further, the government had deprived the petitioner of its right to land and subjected its members to poverty. In conclusion, the court held that the land was to be placed in the name of the petitioner as it was the rightful and lawful owner. 

This petition arose primarily out of a concern over the incidences of poaching of wildlife. The petitioners sought a clarification of whether the Kenya Wildlife Service (KWS) fell under the national security framework. The court had to decide whether uniformed officers of the KWS were officers of the National Police Service (NPS) and on the right of the petitioners to information, among others. 

In dismissing the petition, the court held that the NPS and KWS were established under different legal regimes to discharge different functions and they operated under different chain of command structures. The court further noted that its mandate was limited to fill the legislative gaps and it could not supplant the intention of the legislative role. It observed that the petitioners in essence sought to change the law relating to the inclusion of KWS officers under the NPS. The court observed that the relief sought by the petitioners was better directed to the right forum namely, the legislature which held the legislative mandate. The court went on to hold that the applicant had to show that the information being sought had been denied in order te establish a violation of the petitioners’ access to information. It ound that as no request for such information had been made to the respondents, the enforcement of the right could not have crystallized.
Accordingly, the petition was dismissed with costs.

The court determined the threshold for public participation required for the coal-mining project. The court noted that there was no litmus test for determining when a court could conclude that there was adequate public participation. However, the court found that it is necessary to consider the bona fides of the public actor, the nature of the subject matter, the length and quality of the engagement and the number of mechanisms used to reach as many people as possible. On consideration of these factors, the court held that the government complied with the requirement for public participation in the project.

Secondly, the court noted that the non-involvement of the Kitui County Government in the Coal mining project was explained by the fact that the County Government was not in existence at the time of the award of the Concessioning Tender.

Thirdly, the court found the apprehension of deprivation of property to be speculative as the Government had indicated that it would compensate and resettle the affected parties.

Fourthly, the court held that the petitioners could not invoke the court’s jurisdiction to question either the procedural propriety or substantive merits of the procurement process since they did not follow the procurement procedures.

Fifthly, the court found it unnecessary to determine the issue on violation of the right to information, since the Government had supplied a copy of the Benefits Sharing Agreement to all the parties. Finally, the court held that the petitioners failed to prove environmental harm.
Accordingly, the petition was dismissed.

The appellants appealed against the decision of the High Court to dismiss an application for judicial review. The appellants sought orders of certiorari and prohibition against the County council to set apart a portion of land for the purposes of a boat landing base and the subsequent granting of a lease to the third respondents. The court had to consider several issues including: whether judicial review was the proper avenue for nullifying a title which was granted by law; whether a person other than the ministry in charge of forest could challenge an allocation of land; and what the correct status of the land in question was.

The court observed that the remedy of judicial review under Kenyan law was not wide enough to accommodate a party who was not just aggrieved by the process but sought to ventilate other issues. The court however concluded that there was no material dispute of fact, and the case could be decided on the papers. The court held that the Commissioner of lands had no power to grant more land than what the statute empowered him to do and that he had no power to set aside public land. On the locus standi of the appellants, the court held that the land which was allocated was a beach in front of the appellants’ pieces of land which tourists and local villagers used. There was therefore substantial interest by the appellants in the matter.

Accordingly, the appeal was allowed and the order of the High court dismissing the appellants’ notice of motion was set aside. 

The petitioner argued that the first respondent violated his right to a clean and healthy environment, by leasing out property to the third respondent for the construction of a telecommunications base transmission mast.

Firstly, the court determined the jurisdiction of the court to decide on a dispute concerning the issuance of an Environmental Impact Assessment License despite the existence of an avenue of redress at the National Environmental Tribunal (NET). The court noted that the dispute could was on one hand based on the issuance of the EIA license by NEMA but it was also based on the violation of the right to health. The court therefore relied on s 13 (3) of the Environment and Land Court Act and held that the court had the requisite jurisdiction.

Secondly, the court determined whether the construction of a telecommunications base transmission mast on property adjacent to that of the petitioner violated the petitioner’s right to a clean and healthy environment. The court noted that the third respondent had not obtained that license thus the mast was constructed illegally and that the 4th respondent had a duty to commence investigation and take necessary legal action.

It was further held that, where a procedure for the protection of the environment was provided for in law but was not followed a presumption would to be drawn that the project violated the right to a clean and healthy environment, or was one that had potential to harm the environment.

Accordingly, the petition was allowed.

The court considered an appeal against the first respondent’s decision to approve the second respondent’s construction, of a light industry, namely a metal fabricating workshop. 

The appellants argued that the approval was granted without public consultation and that the construction would interfere with their quiet occupation of their residences. They alleged that the construction would produce noise, emit fumes and encourage the setting up of other industries in a high class residential area. The first respondent argued that this claim was not one for noise or air pollution, but construction, and it did not fall within the scope of its functions but that of the municipal council. The second respondent argued that all relevant consultations had taken place prior to the approval of the environmental impact assessment (EIA) project report.

The tribunal considered the grounds of appeal and observed that the purpose of the EIA process under the act was to assess the likely, significant impacts of a proposed development project on the environment. It stated that the assessment included air quality, water quality, traffic, noise, and other features of the environment but these considerations were not affected by whether an area is designated as a residential area.

The tribunal held that, there was no evidence to show that the second respondent’s development, would adversely impact on the environment, in the area, in ways that could not be mitigated by the measures that had been proposed by the second respondent in the EIA report. 

Accordingly, the appeal was dismissed.

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 a judicial review application against the decision of the respondent to approve the alteration of use of the suit land from residential to office premises. The applicants sought orders of certiorari quashing the decision and prohibition, prohibiting the user from further excavation and construction on the land as well mandamus to compel the respondents to exercise its statutory duty in ensuring no further excavation and construction is done.

The court found that applications for judicial review were brought in the name of the Republic, since a judicial review is a mechanic whereby the state checks on the excesses of its officers and public bodies in performance of their administrative duties. The court noted that the application was not brought in the name of the republic and held that the case was not properly instituted.

Additionally, it was found that all parties affected by the judicial review proceedings such as National Environment Management Authority (NEMA) were not served in accordance with Order 53 r 3(2) of the Civil Procedure Rules which was fatal to the application. As such, although there was no evidence of compliance with s 59 of the Environmental Management and Coordination Act 1999 as well as regulation 17 of the Environmental (Impact Assessment and Audit) Regulations 2003 by NEMA and the user, court could not make any finding as to do so would amount to condemning NEMA unheard.

Accordingly, the application was struck out.