Environmental Case Law Index

The appellants in this case appealed against the decision of the High Court to uphold a counter-application by the respondents. The High Court upheld the respondent’s counter application on the basis that certain peremptory conditions had not been fulfilled and by its judgment set aside the appellants’ mining lease and awarded costs in favour of the respondent.

The applicants argued that the requirements that they failed to fulfill were not peremptory and that these requirements were only peremptory prior to the 1970 and 1986 coups. They contended further that the lease agreement having been concluded thereafter, it should not have been declared null and void. The argued further that the court below erred in awarding costs on the attorney and own client scale.

The Court of Appeal held that, while the coups suspended the 1966 Constitution, they did not set at nought all other legislative provisions. It held that the provisions of the Mining Rights Act, relating to the conclusion of mining leases, were still in place. The court further held that the conditions that the appellants failed to fulfill were grounded in long tradition and custom. 

Consequently, the appeal was dismissed save on the issue of costs. The court held that the High Court was justified in making a special order as to costs on the issue of conspiracy but that the punitive costs were more appropriate in the circumstances and accordingly adjusted the costs order against the appellants whose conduct was deemed vexatious.

This was an appeal in the Court of Appeal against a judgment of the High Court which had dismissed an appeal to it against a judgment of the Judicial Commissioner’s Court, the effect of which was to uphold a decision of a local court. The issue concerned the removal of wood from a plantation by the appellant, which the respondent contended belonged to the community of which he was a headman. The appellant’s reasoning that the plantation was situated in his grandfather’s field was rejected by the court which ordered the appellant to desist from using the plantation and never to use it. The appellant was not satisfied with the ruling, so he appealed unsuccessfully, first to the Central Court, then to the Judicial Commissioner’s Court and finally to the High Court.

The issue for the court’s consideration was whether the local court had the jurisdiction to hear the matter. 

The court observed that the matter concerned provisions of the Chieftainship Act 22 of 1968 pursuant to which the judge held that the finding by the Office of the Chief did not preclude the appellant from seeking recourse in the Local Court. The court upheld the High Court judge’s view that the dispute between the parties was not a dispute involving claims to; title, exemption from title, or overriding title. Therefore, the submission that the dispute must be dealt with in the Land Court or the District Land Court was not upheld. The appeal was dismissed with costs.

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.

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 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. 

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 ruling on a preliminary objection that disputed the jurisdiction of the court. The respondents argued that its discretionary powers were not amenable to judicial review.

This objection was raised in the course of a review of a decision of the respondent to cancel the applicants’ licences that gave them a right to carry out sludge and waste disposal at the port of Mombasa. The applicants sought an order to quash the respondent’s decision and a further order to prohibit the respondent from implementing and enforcing the purported cancellation of the licenses.

Having considered the competing arguments for and against the preliminary objection, the court found that the objection was challenging the jurisdiction of the court. The respondents argued that its discretionary powers were not amenable to judicial review. The court held in the contrary that the decision was administrative and therefore could be the subject of a judicial review. It was further held that the applicants were not barred from coming to that court for assistance when they had grievances with administrative matters.

The court found that the preliminary objection had no merit and dismissed the application with costs to the applicant.

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.

The two applicants were seeking an order for joinder in a substantive appeal by the petitioner. The court considered whether the applicants ought to be joined to the appeal as interested parties. The appeal dealt with the lawfulness of  charges levied against the appellant and the applicants for the use of sea water.

In deciding the case, the court relied on the case of Francis Kariuki Muruatetu and Another v. Republic and Four Others which set out guiding principles when seeking to be joined to proceedings as an interested party. The rule stated that the party seeking to be enjoined must move the court through a formal application and must place sufficient grounds before the court namely: the personal interests that the party has in the matter;  the prejudice that the interested party will suffer; and  the relevance of the submissions the party seeks to rely on in the case.

In dismissing the application for  joinder, the court held that the applicants expressed no interest in the matter during the lower courts. Furthermore, the court held that the applicants could bring their own application since there was no order of stay of proceedings in place. Lastly, it held that the applicants did not stand to suffer or incur any prejudice in the matter. Accordingly, the court dismissed the applications with costs.

The case concerned a dispute between the applicant, a non-profit company involved in the promotion of a wildlife conservancy and the first respondent, a mining business within the area of jurisdiction of the second respondent. The applicant invoked its entitlement in public interest to apply for an interdict restraining the first respondent from making any development on any portion of the concerned properties as defined in s 1 and s 38(3), of the KwaZulu-Natal Planning and Development Act No. 6 of 2008 (KZNPD). 

The applicant argued that the first respondent was required to apply for its proposed development but the applicant contended that it had not yet obtained such authorisation. The first respondent contended that it had been granted approval for mining authorisations in March 1998, in terms of the then applicable Minerals Act No. 50 of 199. The first respondent argued that mining authorisations approved and granted under the Minerals Act entailed that no further authorisations were required where a mining right subsisted.

The court pointed out that mining authorisations were subject only to the provisions of the Minerals Act and there was no provision similar to that in the Mineral and Petroleum Resources Development Act, 28 of 2002. The court found that the concerned properties were not inside a municipal area and were never the subject of any zoning controls when mining authorisation was granted. On the basis of this alone, no further authorisations were required under any other legislation. Accordingly, the application was dismissed with costs.

The applicant sought various reliefs concerning a project to abstract and pump water from Lake Malawi by and under the watch of the respondents. The judge considered the main issue to be an application for leave to apply for judicial review. The second issue was whether the applicant and the Malawi Law Society (MLS), an interested party), had locus standi in the matter in light of s 26(1)(d) of the Legal Education and Legal Practitioners’ Act (LELPA).

The applicant contended that the matters that it raised were matters of public interest and were intended to protect the public on an issue that directly touched on the law, namely compliance with various legal processes relating to environmental protection before a project of the nature of the instant one is commenced. The judge held that prima facie, this was a matter of public interest and that the MLS had a legal duty to take measures intended at protecting the public, within the meaning of s 26(1)(d) of the LELPA. The judge was also satisfied by the applicant’s representations that there was no alternative remedy for the applicant in the circumstances to secure appropriate reliefs. The court was satisfied that the applicant had an arguable case and therefore granted the applicant leave to apply for judicial review. The court further ordered the first respondent to make available to the applicant the contract with the contractor and other relevant environmental information. 

This case concerned a preliminary point raised that the first and second respondents’ legal practitioner should be prohibited from appearing on their behalf. The applicant contended that the legal practitioner who was present at a meeting where the Mining Development Board discussed the shareholding of the respondents, was intimately interested in the subject matter of the proceedings. The applicant further contended that the same legal practitioner should not be allowed to appear for the fifth respondent, the minister of mines and mining development, who ought to be represented only by the Attorney-General as the principal legal advisor to the Government. 

In response, the practitioner contended that there was no evidence to determine the depth of his alleged involvement in the matters referred to and that the allegations were based on speculation. He further submitted that he had authority to represent the Attorney-General. 

The court had to determine whether it was proper for the legal practitioner to appear for the first, second and fifth respondents.

The court observed that it was important that a legal practitioner should at all times retain his independence in relation to his client and the litigation. On account of the practitioner’s previous involvements with the first and second respondents, the court determined that he could not be allowed to serve as their legal practitioner.

With regard to the representation of the fifth respondent, the court did not make any pronouncement on the basis that it lacked sufficient information. Accordingly, the court upheld the preliminary objection.