Environmental Case Law Index

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 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. 

The court considered an application by which the applicants sought an order declaring that their right to life had been contravened by forcible eviction and by settlement of other persons on their land. The applicants were members of the Ogiek community who had been living in East Mau Forest for decades, as food gatherers and hunters. Upon the introduction of colonial rule, the land was declared a forest, however, no land was set aside for the applicants. 

The court set out the issues as follows: whether the members of the community had recognizable rights arising from their occupation of the forest; whether in the circumstances of the case, their rights had been infringed by their eviction and allocation of other persons; and whether the settlement was ultra vires.  

The court found that the right to a livelihood did not have a definition and could be included in the right to life. Thus, their livelihood was directly dependent on forest resources to sustain their way of life. Further, the court held that the applicants were a minority group who had lost their access to land and their right to live in the forests which was key to their livelihood, thus their rights had been infringed.Finally, the court found that there were significant irregularities made during the allocation of land, thus the settlement scheme was ultra vires and the applicants were therefore entitled to the relief sought.
Accordingly, the application was upheld. 

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 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. 

The court considered an application declaring that the applicants right to life had been contravened by forcible eviction, as well as their right to protection of the law. 

The applicants averred that they had resided and carried on farming on the land from which they were evicted for 61 years. After the land had been degazetted for settlement by Gazette Notices, the applicants claimed that their subsequent eviction was an infringement of their constitutional rights.

The Applicants claimed to reside and possess the land in dispute but did not lay any credible foundation to that claim. The only document they placed before the court to support their claim was what was described as “The fact-finding Report of Mr Cheruiyot Kiplangat.” The said person was not known to this court and the court was not told what authority he had, nor his competence to make the report.

The court held that the report had no legal basis and was to be rejected. As the application was substantially based on the fact that the appellants had wrongly been evicted from the land, to which they purported to lay a stake, the court found that their reference had automatically failed, based on the finding that the fact-finding report they relied on had no legal authority.

Reference dismissed.

This was an application for a temporary injunction to restrain the defendant from cutting down trees, felling logs or dealing in whatever manner with the plaintiff’s land.

The plaintiff contended that the respondent had committed trespass and malicious damage to the property on his land. On the other hand, the defendant argued that it was not the registered owner of the land but had entered into an agreement with the government to harvest forest produce in government forests in exchange for royalties.

The court found that the plaintiff was the registered owner of the land and that the defendant lacked the capacity to question the validity of the plaintiff’s ownership. 

It was further held that the plaintiff had established the requirements for an injunction. The plaintiff established a prima facie case with a likelihood of success against the defendant. Further, that if the relief was not granted the plaintiff would suffer irreparable loss as all the trees on his land would be cut down.  

Accordingly, the application succeeded with costs to the respondents. The court issued the injunction and directed the applicant to mark out the boundaries of his land so that the respondent would excluded from its operations. 

The applicants challenged the respondent’s issuance of improvement notices with respect to their properties; on grounds of encroachment on a riparian reserve contrary to law.

The applicants prayed for an injunction restraining the respondents from enforcing the notices and entering their properties. They also prayed for a declaration that the notices were void since they were issued without regard for fair administrative action and due process; and an order for costs.

Without delving into the merits of the main matter pending in the tribunal, the court found that the appellants had established
the requirements for an injunction. Firstly, because the appellants had established a prima facie case with a probability of success at trial based on the intriguing legal and factual arguments. Secondly, the court noted that there was no other alternative remedy since the appellants would suffer irreparable harm if the injunction was not granted. Mainly because the subjects of the consolidated appeals suffered the risk of being rendered nugatory by enforcement of the improvement notices. Finally, the court found that the balance of convenience lied in the favour of the appellants because the respondents failed to point an immediate, ongoing or direct harm to the environment that necessitated the immediate enforcement of the improvement notices.

Accordingly, the application succeeded.