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.

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 Further, that the petitioner’s reliance on a repealed act was unsupported, and that he had not shown any substantive section of the Land Acquisition Act that was misapplied by the respondents through the process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 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 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.

The applicant intended to erect a petrol station and submitted an Environmental Impact Assessment (EIA) report to the respondent for approval. The respondent did not, however, respond to the report within three months, as envisaged in the Environmental Management and Co-ordination Act. The applicant decided to proceed with the project, as permitted by section 58 (9) of the Act.

The respondent stopped the project and handed the applicant a letter to the effect that the proposal for the project had been rejected.

The applicant applied for judicial review orders and submitted that the respondent had failed to conduct public hearings to assess the acceptability of the proposal. Thus, the respondent could not interfere with the applicant’s statutory discretion under section 58 (9) of the Act. 

The court had to decide whether the rejection by the respondent was binding and if the respondent had sufficient grounds for the rejection.

The court held that the remedy of judicial review deals with the process, but not the merits of the decision by a tribunal, therefore the respondent’s submission that the applicant should have appealed to the tribunal if aggrieved, was untenable.

Further, that members of the public were denied sufficient opportunity to respond and make their comments. The applicant could not blame the respondents for failing to comply with section 58 (9). The delay in giving the decision was only one month, which in view of the court, was reasonable in the circumstances.

Application dismissed.

This matter arose from an application for judicial review of a decision of the defendant to issue a notice for the cancellation of the plaintiff’s license. The plaintiff prayed for orders of certiorari, prohibition and mandamus.

The court certified the application as urgent and directed the applicant to serve the respondent. The respondent failed to make an appearance during the hearing, and the court granted leave to stay the notice of cancellation of the licence.

The respondent later filed an application under s 3A of Civil Procedure Act to set aside the stay order. The court found that the replying affidavits filed by the interested parties raised environmental issues and deficiency in the procedure leading to the grant of licence to the applicant.

The court noted its obligation to protect and uphold the authority of all the concerned parties to preserve and manage the environment. The court thus ordered the applicant and the Water Resource Management Authority (interested party) to file joint reports after surveying the riparian reserve area to indicate whether the project had interfered with the reserve. In case of failure to get a joint report, the court ordered the parties to file separate reports from their respective experts within 15 days and prohibited the applicant from developing the area of suit land along the riparian reserve.

This was an appeal from a decision in an application for judicial review. The appellant was aggrieved by the lower court’s finding that the appellant was not entitled to the orders sought for failure to disclose that an appellate procedure existed under s 129 of the Environmental and Management Co-ordination Act 1999 (EMCA) and not demonstrating why judicial review was preferred to an appeal to the National Environmental Tribunal under the act, upon being dissatisfied with the National Environmental Management Authority’s (NEMA) decisions. 

NEMA had ordered the appellant to conduct a fresh Environmental Impact Assessment (EIA) under s 138 of the EMCA and to cease construction on the suit land.

The court determined whether the trial judge erred in finding that the appellant failed to demonstrate that judicial review was more suitable than an appeal to the tribunal.

The court held that the trial judge arrived at the right conclusion. The court applied the rule that, where an alternative remedy such as a statutory appeal procedure existed, judicial review can only be granted in exceptional circumstances. The court noted that the appellant failed to demonstrate these exceptional circumstances and should have made an appeal to the tribunal instead.

The court also found that public participation is a crucial aspect in environmental matters. The court noted that the fresh EIA as ordered by NEMA would give the appellant an opportunity to ensure public participation which had been ignored in the first EIA.

Accordingly, the appeal was dismissed. 

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 an appeal against the condition attached by the respondent, to its approval of a housing project. 

The appellant intended to build a seven storey building, but the respondent restricted it to four. The appellant contended that the limitation placed on the number of storeys and refusal to allow construction for residential floors, below ground level, was unlawful, which had already been approved by the city council. 

Upon request to the tribunal, residents of the area were enjoined to the appeal as interested parties, arguing that the appellant’s development did not respect the stipulated environment, and planning regulations, that permitted only a maximum of four storey buildings in Zone 4, where the proposed construction was located.

The tribunal considered whether the limitations placed on the construction were justified. It held that the respondent had the authority to impose conditions that it deemed necessary to prevent and/or reduce negative environmental impacts that might result from an activity, and therefore had the lawful authority to regulate the appellant’s activity.

Under the Environmental Management and Coordination Act (EMCA) and the regulations made under it, the respondent’s authority superseded that of the city council and any action the Council may have taken regarding the proposed development. The tribunal found that the city council’s approval was not lawful. Accordingly, the appeal was dismissed.

This matter determined whether the principles of granting an injunction should be applied differently in environmental litigation.

The applicants sought an injunction to restrain the respondents from mining and excavation activities which were likely to trigger environmental and health problems. The respondents argued that they were not mining but prospecting and had a license to do so.

The court determined that the applicants had the necessary locus standi by virtue of being persons entitled to a clean and healthy environment as per s3(2) of the Environment Management and Coordination Act (EMCA).

The court determined whether the grounds for the grant of an injunction were satisfied by the application. The court noted that breaches of the environmental statute must be looked at without the trappings of the law on injunctions but rather in line with the principles under s3 of the EMCA.

The court established that anybody who intends to mine or conduct prospecting activities is required to submit a project report and an Environmental Impact Assessment (EIA) to the National Environment Management Authority (NEMA) as per s58 of the EMCA. It was further held that where the provision is not complied with, it is immaterial whether such person had a license. The court found that the respondent failed to comply with the provisions of the act and declared the respondent’s activities illegal.

The injunction was granted since the environmental factors were not taken into account before the project commenced.

In this case the appellant challenged the first respondent’s decision to grant the second and third respondents an Environmental Impact Assessment (EIA) license for the construction of a church and related facilities. The second and third respondents raised an objection to the tribunal’s right to hear the matter on the ground that the appeal had been filed outside the timelines set out in the Environmental Management and Coordination Act 1999 (EMCA) as well as the National Environmental Tribunal Procedure Rules, 2003

The main issue for the tribunal’s consideration was whether it had jurisdiction to entertain an appeal which had been filed out of time. The tribunal relied on the rule established in Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited that jurisdiction must be acquired before judgment is given. It also relied on s129(1) of the EMCA and held that the act was clear that an appeal ought to have been filed within 60 days but the evidence revealed that the appellants had filed their appeal after 78 days.

Accordingly, the tribunal found that it lacked jurisdiction to determine the matter, as the appeal was filed out of time and the appeal 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.