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.
Read also JIFA's Environmental Country Reports for SADC
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 matter dealt with the issue of jurisdiction arising out of a dispute regarding the development of residential flats by the ex parte applicant.
The court considered whether the National Environment Tribunal had jurisdiction to hear and determine Tribunal Appeal No. 74 of 2011. Under section 129(1) of the Environmental Management and Coordination Act, a person who did not participate in the Environmental Impact Assessment study process for the development, in the process of approval or complaint cannot be said to have been an aggrieved by the process which led to the issuance of the licence as no decision could be said to have been made against him. If the tribunal purports to entertain such an appeal under the aforesaid section, the tribunal would be acting ultra vires its authority, hence its decision would be liable to be quashed.
In this case, it was clear that the appeal in issue did not fall within section 129(1) since the second respondent was not a participant in the licensing process. It followed that the limitation period provided under section 129(1) did not apply to the second respondent since, in the court’s view, that limitation only applied to a person appealing pursuant to section 129(1).
There was no evidence that the second respondent was barred from appealing by any other provision in the act or regulations. Accordingly, the court found that the second respondent was entitled under section 129(2) to appeal against the decision of the authority.
The Notice of Motion was dismissed.