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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Molise Lepota v Vincent Masoabi & 4 Ors (LC/APN/39/2013) [2015] LSHC 57 (26 August 2015); 
EL Index Abuse of Process Conduct of proceedings Civil Procedure Land use Human exploitation of the environment Environmental lawThis matter dealt with a land dispute which had commenced in the District Court but was transferred to the Land Court by agreement of the parties. At the end of the trial, an application for absolution from the instance (an order to dismiss a claim on the basis that no order can be made) was made. This application, the applicant sought to include an amendment that would introduce new evidence. The respondents argued that the application was an attempt to cover its failure to comply with the rules of court.
The court considered whether the application was properly before it. The court observed that the applicant had not obtained leave of the court for the application nor consent from the other parties to amend and file further evidence. It relied on r 13 of the Land Court Rules, No. 1 of 2010 and stated that even if the applicant had obtained leave or consent, the court could not grant the application for absolution so as to assist the applicant to cure a defect of none compliance with the rules of court.
It was held that the amendments were an abuse of the court process because the applicant was in fact curing the deficiencies in his pleadings after he had closed his case. Further, the court found that there were no exceptional circumstances to allow the application.
Accordingly, the application was dismissed with costs to the respondents.
Kepha Omondi Onjuro & others v Attorney General & 5 others [2015] eKLR (Petition 239 of 2014); (04 February 2015); Judicial Review Appeals and reviews Civil Procedure Procedural Fairness Justice and fairness Civil Procedure Free prior informed consent Human and environmental rights Environmental law Public participation Human and environmental rights Environmental law Land use Human exploitation of the environment Environmental law EL IndexThe 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.
Rankin v Nyatsuro & Others (HC 12579/15) [2016] ZWHHC 09 (25 December 2015); EL Index Judicial Review Appeals and reviews Civil Procedure Procedural Fairness Justice and fairness Civil Procedure Land use Human exploitation of the environment Environmental law |
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