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 plaintiff was claiming outstanding water use charges together with interest from the defendant.
The court determined if sea water can be owned or managed, and if so by which statutory body. The court held that art 260 of the Constitution defined land to include marine waters in the territorial sea and thus disagreed with the defendant’s argument that sea water is not capable of ownership. It was further held that the National Land Commission was the only body empowered to administer and manage the territorial sea, the exclusive economic zone and the sea bed on behalf of the people of Kenya.
The court noted that the Water Act and the Water Resources Management Rules lacked specific provisions that included sea water as a water resource for the purpose of levying charges for the use of sea water. It was therefore held that the plaintiff lacked the locus standi to levy charges for use of sea water.
Accordingly, the case was struck out with costs to the plaintiff.
The matter dealt with an application seeking an order that the defendant be temporarily restrained from erecting, constructing and or use of the public toilet on the beach front near the plaintiff’s resort.
The court considered whether the plaintiff established a prima facie case with a probability of success to warrant the grant of a temporary injunction. The principle of public participation informs the requirement of submission of an Environmental Impact Assessment Report which gives individuals such as the applicant a voice in issues that may bear directly on their health and welfare and entitlement to a clean environment. In the absence of the report for the construction of the toilets approved by the National Environment Management Authority, the court held that the plaintiff established a prima facie case with chances of success.
The court considered whether the construction of the public toilet next to the resort would cause adverse environmental effect thus devaluing the plaintiff's otherwise prime property. The court has the constitutional duty, at Article 70 (2) of the Constitution to prevent, stop or discontinue any act or omissions that is harmful to the environment. Accordingly, the court held that unless the order of injunction was granted as prayed, the plaintiff, and the users of the beach and the ocean were likely to suffer irreparable damage if the toilets were used before proper mechanisms were put in place to mitigate the environmental pollution that may have occurred.
The application was granted.
The plaintiff sought orders that it did not owe the defendant for any service, and for a permanent injunction restraining the defendant from interfering with or disconnecting the plaintiff’s water system connected to its borehole due to an outstanding water bill.
The court considered whether it had jurisdiction to hear and determine this suit and application. The provisions of s 85 of the Water Act show that the jurisdiction of the Water Appeals Board is two-fold: first is to hear appeals from decisions and orders of the Water Resources Management Authority, the minister, or the Water Services Regulatory Board concerning a permit or licence. The second jurisdiction of the Water Appeals Board is as is conferred by any law. There was no decision or order on a permit or licence being appealed in this suit and application. Accordingly, the court found that this dispute is not envisaged by s 85(1).
Furthermore, s 85(2) showed that the additional jurisdiction granted to the Water Appeals Board was in fact limited, and it did not have jurisdiction to determine all disputes under the act, but only those disputes where jurisdiction was conferred on it by the Water Act or any other act. No such law was cited by the defendant, to warrant the application of s 85(2). Therefore, the court found that s 85 did not apply to the facts of this suit and application, and that it, therefore, had jurisdiction to determine the matter.
Preliminary objection dismissed.
The court considered and application for an injunction to restrain the defendant from directing storm and waste water into the plaintiff’s dam, or into the neighboring dam.
The defendant had acceded to a request by the members of the community to desilt the dam at the primary school, but as the plaintiff submitted, had failed to conduct an environmental impact assessment before undertaking the rehabilitation of the dam. Further, that the storm water from the defendant’s farm had spilled over to the dam in her parcel of land, thereby polluting it and infringing her right to live in a clean environment.
The issue for determination by this court was whether the plaintiff had established a prima facie case to enable the court to grant her the order of injunction sought.
The court held that the defendant undertook the project before seeking the authority of the National Environmental Management Authority and had therefore not consulted with all parties likely to be affected by the dam in co-ordination with the NEMA, before rehabilitating the dam. Therefore, the defendant breached the law by channeling storm water into the neighboring dam, without first complying with the provisions of the Environmental Management Act and that the plaintiff was within her rights to seek an injunction.
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.