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.
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Elizabeth Kurer and Detlef Heir (Suing on their behalf and on behalf of aggrieved residents of Watamu within Kilifi County) v County Government of Kilifi & 4 others [2018] eKLR (Petition 23 of 2016); (19 April 2018); 
Frivolous, vexatious, nuisance proceedings Conduct of proceedings Civil Procedure Role of state in relation to environment Actors in environmental law Environmental law Pollution and waste management offences Criminal offences in environmental law Environmental law Public interest in environment Environmental decision-making Environmental law Access to environmental information Human and environmental rights Environmental law Healthy environment Substantive rights Human Rights EL IndexThe petitioners in this matter contented that since 1998, the fourth and fifth respondents had played excessively loud music at night thus causing the petitioners and other residents sleepless nights. The respondents operated an entertainment spot located near a residential area and learning institutions and whose main entertainment menu was the playing of very loud music. The petitioners alleged that the noise interfered with their peace and quiet enjoyment of their properties and violated their right to a clean and healthy environment.
In order to prove that the noise and vibration levels from the respondent’s restaurant were excessive, the petitioners used self-made instruments that were not approved by a relevant lead agency or any person appointed by the National Environmental Management Authority.
This was against the requirements of the Environmental Management and Coordination Act. Therefore, the petition had to fall, although the learned Judge noted that the petitioners had a noble claim.
Kenya Association of Manufacturers & 3 others v Cabinet secretary, Ministry of Environment and Natural Resources & 3 others [2018] eKLR (Petition 32 & 35 of 2017 & Judicial Review Application 30 of 2017 (Consolidated)); (22 June 2018); EL Index Environmental impact and risk assessment Environmental decision-making Environmental law Judicial Review Appeals and reviews Civil Procedure Public participation Human and environmental rights Environmental lawMohamed Ali Baadi and others v Attorney General & 11 others[2018] eKLR (PETITION NO 22 OF 2012); (30 April 2018); Public interest in environment Environmental decision-making Environmental law Access to environmental information Human and environmental rights Environmental law Public participation Human and environmental rights Environmental law Class actions (environmental) Litigation of environmental issues Environmental law Healthy environment Substantive rights Human Rights EL IndexThis was a petition brought by various parties challenging the implementation and design of the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET Project). The court considered whether the implementation of the project violated the rights of the affected communities.
The court observed that the rights of citizens regarding information on environmental matters, public participation, and access to justice were indispensable to foster sustainable development. The court found that the various petitioners’ rights were violated or could potentially be violated by the project, including the rights to fishing and to a clean and healthy environment.
The court ordered the project designers to engage the community as a distinct group and to mitigate on how the project, would affect their rights to culture. Secondly, it ordered the respondents to design a measurable and actionable plan, in consultation with the affected community on how to protect the cultural identity during and after the construction of the project. Thirdly, it ordered the government to draw up a management plan to preserve the Lamu Island as a UNESCO World Heritage Site as directed through UNESCO declarations. Fourthly, it ordered the department responsible for issuing environmental impact assessments to ensure that the rights of the communities were implemented before reconsidering the licence. Accordingly, the petition was upheld.
Gongqose and Others v Minister of Agriculture, Forestry and Others, Gongqose and S EL Index Offences in relation to indigenous species Criminal offences in environmental law Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Use of coastal and marine areas Water and coasts Environmental law Protected areas (general) Environmental decision-making Environmental law
Gausi v A.G. (Order) (Civil Cause No. 123 of 2015) [2018] MWHC 970 (20 July 2018); Attribution of Costs Costs Civil Remedies African customary law and rights of indigenous peoples Human and environmental rights Environmental law EL IndexThis was an application by the plaintiff claiming compensation for the land which was compulsorily acquired by the defendant. The plaintiff made a further claim for compensation for the destruction of 390 banana plants. The court had to decide on the quantum of damages payable for the loss of use and occupation of land and the loss of the 390 banana plants.
The court first dealt with the general principles guiding compensation and considered the applicable legal provisions. The court held that the main principle underpinning damages was restitution. In addition, the court listed several grounds under which compensation can be calculated. These grounds included a calculation of compensation based on the market value of the land; compensation based on the depreciation of value, if only a part of the land was expropriated; disturbance compensation among other guiding principles.
In awarding judgment for the plaintiff, the court considered the nature of the deprivation and concluded that such deprivation was permanent. The plaintiff was awarded MK3, 812, 000.00 as compensation and the respondent was ordered to pay the costs.
Kapiye v Lapken & Anor. (Civil Appeal Cause No. 102 of 2017) [2018] MWHC 1101 (23 July 2018); Judicial Review Appeals and reviews Civil Procedure Injunction Injuctions and interdicts Civil Remedies Cultural and heritage values in the environment Environmental decision-making Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Land use Human exploitation of the environment Environmental law EL IndexThis was an appeal against a decision of a magistrate to dismiss the appellant’s claim over a piece of customary land which he claimed was unlawfully in the possession of the second respondent, his son. The appellant had left the village for a long time and upon returning found that the first respondent had constructed a home on his land. The appellant instructed the first respondent to vacate land but he refused and proceeded to sell the land to the second respondent. The appellant told the court below that he inherited the piece of land from his father. The lower court found that the appellant had failed to adduce enough evidence to show that the land belonged to him.
The court had to determine the following: which party had the right of occupation of the land; whether the land was lawfully transferred to the second respondent and whether a permanent injunction could be granted restraining the appellant or the respondents from interfering with the land in question.
The court held that although the land had been given to the first respondent customarily, chiefs must be guided by the law specifically, the Constitution and it was against the law to deprive any person the right to use and occupy customary land without any justification at law. It held that indefinite individual usage and occupation of customary land was therefore permissible under the laws of Malawi and the subsequent transfer was legal. Accordingly, the court upheld the lower court ruling.
Agnes Kahimbi Kashela v Katima Mulilo Town Council and Others (SA 15/2017) [2018] NASC 409 (16 November 2018); Judicial Review Appeals and reviews Civil Procedure Constitutional Interpretation Constitutional Law African customary law and rights of indigenous peoples Human and environmental rights Environmental law EL IndexThis 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.
Masundvwini Royal Kraal v Evangelical Church (By Christ Ambassadors) and Another (19/2017) [2018] SZSC 10 (03 May 2018); EL Index Injunction Injunctions and interdicts Civil Remedies African customary law and rights of indigenous peoples Human and environmental rights Environmental lawCivil Procedure ̶ Application by Appellant for an order ejecting the Respondents from the land situate at Mhlaleni, directing the Respondents to demolish all structures they have constructed on the land and interdicting Respondent’s from carrying out any activities on the land – Dispute over the territorial jurisdiction over the area where land is situate – Plea of lis pendens raised by the Respondents - whether matter pending determination by the High Court or the traditional authorities – High Court upholds plea of lis pendens and orders status quo prevailing to be maintained pending determination by appropriate authority – Whether High Court erred in so holding – Whether High Court has jurisdiction to entertain matters relating to land pending before traditional authorities having regard to Section 151 (3) (b) of the Constitution - Held that High Court has no original jurisdiction to entertain matters in which a Swazi Court has jurisdiction, but High Court has only revisional and appellate juridiction as provided by Section 151 (3) of the Constitution - where a matter is pending or has been determined by the traditional authorities, the High Court must refer the matter back to those authorities for determination or enforcement – Decision of High Court upheld, and – Appeal dismissed with costs.
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