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
The court considered a petition declaring that the violation of Article 42 of the Constitution of Kenya resulted in a denial of the right to a clean and healthy environment, as well as an injunction to have a waste disposal site relocated.
The court found that the main issues for determination were 1) whether the respondents’ actions violated or threatened the petitioners’ right to a clean and healthy environment, and 2) whether they are deserving of the relief sought.
The court found the right to a clean and healthy environment to be a fundamental right and held that the duty to have the environment protected for the benefit of the present and future generations is imposed on the State and every person.
The court considered various provisions of the Constitution, wherein it argued that the first respondent had the mandate to establish and maintain sanitary services for the removal of all kinds of refuse and effluent. It was argued that when dealing with the disposal of waste, no person shall operate a waste disposal site without a licence.
It was clear that the respondent did not have the requisite licence and the court found that the first and third respondents violated the petitioners’ right to a clear and healthy environment, but that the second respondent did not.
The petition partly succeeded. The court granted the declaration but refused to grant the injunction to relocate the waste disposal site.
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.
The court considered an appeal, whereby the plaintiff was claiming pecuniary damages incurred for cleaning up an oil leak into the harbour, for which the defendant was allegedly responsible.
The defence pleaded that the suit was misconceived and that the alleged loss and damage were not recoverable in law. Further, that the plaintiff disclosed no cause of action and that the case ought to be dismissed. The plaintiff relied on two causes of action, the first in negligence and the second, in terms of the strict liability rule.
The high court held that the only damage proved to have been caused by the oil leak was to the sea water surrounding the harbour, and that the plaintiff did not own that water. Thus, the plaintiff had not suffered any damage to its property and further that in bringing oil to its land in the port area, the defendant was not making a non-natural use of the land.
On appeal, the court held that the plaintiff suffered no actual damage to any of its property as water was not the property of the plaintiff, and pecuniary loss arising out of purely precautionary measures taken to clean up pollution, which might cause damage to property, is not recoverable at common law. It held that the storage of oil on land by a person licensed to generate electricity there, the oil being essential for the production of electricity, did not amount to a non-natural user of the land.
The tribunal considered an appeal against the approval and issuance of a license for the construction of human waste sewage ponds in a residential area. The appellants argued the following: that they, had not been consulted; that the project would cause significant environmental damage; that the project lacked adequate mitigation measures; and that the respondents did not follow the relevant statutory provisions. The appellants sought cancellation of the license; an order to stop construction of the project; restitution, compensation as well as a guarantee of non- repetition; and environmental restoration. The respondents insisted that they had satisfied the relevant provisions and urged the tribunal to dismiss the appeal with costs.
The main issue for the tribunal’s consideration was whether there was effective public participation. It found that the respondents fell short of the requirement to issue two public notices. The tribunal also found that the respondents failed to demonstrate that they held three public meetings and that they made radio-announcements. It concluded therefor that public participation was not carried out effectively.
The tribunal went on to consider whether the project adhered to the Environment Management and Coordination (Water Quality) Regulations 2006; the Environment Management and Coordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009; and the Environmental Management and Co-Ordination (Air Quality) Regulations 2014. It found that the respondents failed to adhere to any of these. Accordingly, the tribunal upheld the appeal.