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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This was an appeal against a decision of the High Court to hold the appellants in contempt of an order of the Minister of Water Affairs and Forestry, issued to the mining companies concerned under s 19(3) of the National Water Act 36 of 1998.
The appellants contended the directives were incapable of implementation because they were so vague. Consequently, the respondent obtained orders from court a quo, compelling the appellant to provide an amount of money as contribution to execute the ministerial order. Following the order, the appellant failed to pay the money. As a result, the appellants applied to have the appellants for contempt.
The main issue for the court’s consideration was whether an order of the court ordering money to be paid could raise a question of contempt. In overruling the decision of court below, the supreme court stated that it was only where performance of an act was ordered – ad factum praestandum – that conviction for contempt of court was permitted as a means of enforcing performance. It held that contempt proceedings were therefore inappropriate in the circumstances. In conclusion, the court stated that an order that a person was in contempt of court, which carries with it criminal sanctions, should be made only where the court order allegedly flouted was clear and capable of enforcement. Accordingly, the appeal was upheld.
The court considered a petition to have a decision handed down by the Ministry of Devolution and Planning quashed and declared unconstitutional.
The petitioners were Embobut Forest dwellers which shared a common border with five other clans. The petitioners alleged that they were genuine evictees and internally displaced persons who were aggrieved, ignored and not compensated when the respondents harmonized their registers.
The petitioners argued that their constitutional right to a clean and healthy environment had been infringed and that they had not been appropriately compensated. They alleged that they ought to have been compensated like any other squatters and that they had been discriminated against.
The court found that the arguments put forward by the petitioners were non-justiciable. Justiciability refers to the types of matters the court can adjudicate on. In this instance, the court found that the harmonization of the register of the petitioners was a political question, and not a legal one.
The court found that the purpose of compensating those who were in illegal occupation of the forest was to give effect to their right to property. However, the court found that the petitioners did not demonstrate that they were part of those who illegally occupied the land, and thus could not be compensated. Further, the court found that the petitioners did not demonstrate that any of the constitutional provisions had been violated, thus their petition was without substance.
The court considered an application for judicial review on the ground that the decision of a magistrate to grant an injunction was ultra vires (i.e beyond the powers). The applicant contended that the magistrate lacked jurisdiction to make such an order and as such the order was a nullity. The respondent argued that the application was misconceived; that it had jurisdiction and that the applicant had failed to lodge an appeal which meant that the remedy of judicial review was not available to it.
The court considered whether the respondent had the jurisdiction to consider the matters before it. The court also considered whether the applicant exhausted other equally convenient, beneficial and effective alternative remedies which were available under the law.
The court found that although the application was brought in terms of the Forests Act, such dispute ought to have been brought before the National Environment Tribunal.
The court found that the learned magistrate acted without jurisdiction and in excess of statutory authority, contrary to Section 63(2) of the Forests Act to receive, entertain, hear and otherwise deal with the said case as the proper forum to hear and determine the interested party’s claim, would have been the National Environment Tribunal. On this basis, the decision issued was ultra vires and thus a nullity ab initio. Accordingly, the court set aside the decision of the magistrate.
The court considered an appeal against the decision of the court below, dismissing an application for judicial review. The issue for consideration was whether the doctrine of res judicata applied to judicial review.
Res judicata refers to a matter which has been heard by a competent court and cannot be pursued further by the same parties.
The 16th respondent alleged that the Minister had used the information from them to grant permits to the parties named as interested parties, in respect of the concerned areas and that such licenses should be revoked. Further that the interested parties cease operations in the areas immediately.
The court below dismissed this, prompting a review by the 16th respondent, who sought an order “compelling the respondents to vacate and stay out of the disputed areas. This was based on the interested parties trespassing on the disputed land.
The interested parties argued that the court could not entertain the matter because of the principle of res judicata. However, the court below held that res judicata did not apply to reviews.
The court in this instance held that the basis upon which the 16th respondent instituted the previous judicial review application was essentially the same basis upon which the subsequent judicial review application was based and was thus res judicata. Further, that the subsequent judicial review application was not only barred by the doctrine of res judicata, but was also an abuse of court processes
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.
The court considered a petition whereby the petitioner sought an order of certiorari to quash a Gazette Notice declaring his land to be forest land. The petitioner had entered into a sale agreement with the original owner of the land by which the parties agreed to a down payment upon successful application to the land control board. The Petitioner took immediate possession and contracted to pay the balance of the purchase price after the maize season. The application was made and rejected due to the Ministry of Natural Resource’s interest in the land. Subsequently, the land control board met and the petitioner’s application was granted, however, the land was transferred to the government and marked a forest.
The petitioner argued that during the dispute, its members were harassed and evicted from their farms, with their houses being torched.
The court found that there was no doubt that the petitioner had entered into a sale agreement. Further, the control board acted in a manner to deny the petitioner the land. The court found that based on a letter received from the Commissioner of Land, there was a clear acknowledgment of foul play in the manner in which the government came to buy the land. Further, the government had deprived the petitioner of its right to land and subjected its members to poverty. In conclusion, the court held that the land was to be placed in the name of the petitioner as it was the rightful and lawful owner.
This was a petition sought on the grounds that the petitioner’s rights to the protection of property and to fair administrative action under the Constitution had been violated. The case concerned a contractual agreement involving the petitioner and the state over a leasehold property which expired before the conclusion of the contract. The petitioner had, prior to the expiry filed an application for renewal of the lease. The court considered whether the state had demonstrated its intention to renew the lease and whether a legitimate expectation was created.
Secondly, the court considered whether the failure by the commissioner of lands to exercise its statutory duty to renew was a violation of the petitioner’s rights.
The court observed that by entering a contractual relationship, the state had demonstrated its intention to renew the lease and created a legitimate expectation on which the petitioner had relied. Furthermore, the court held that in terms of the Land Act, the lessee had the right of first refusal, and was therefore entitled to the extension of the lease.
The court held however, that it would be inappropriate for it to grant a lease renewal of 99 years as prayed, since the renewal term was discretionary. The court further noted that the fact that people had already settled on the land would create challenges in the future. In conclusion, the court ordered the parties to enter further negotiations to resolve the matter within 90 days failing which the court would then pronounce the final reliefs.
This petition arose primarily out of a concern over the incidences of poaching of wildlife. The petitioners sought a clarification of whether the Kenya Wildlife Service (KWS) fell under the national security framework. The court had to decide whether uniformed officers of the KWS were officers of the National Police Service (NPS) and on the right of the petitioners to information, among others.
In dismissing the petition, the court held that the NPS and KWS were established under different legal regimes to discharge different functions and they operated under different chain of command structures. The court further noted that its mandate was limited to fill the legislative gaps and it could not supplant the intention of the legislative role. It observed that the petitioners in essence sought to change the law relating to the inclusion of KWS officers under the NPS. The court observed that the relief sought by the petitioners was better directed to the right forum namely, the legislature which held the legislative mandate. The court went on to hold that the applicant had to show that the information being sought had been denied in order te establish a violation of the petitioners’ access to information. It ound that as no request for such information had been made to the respondents, the enforcement of the right could not have crystallized.
Accordingly, the petition was dismissed with costs.
The court considered an application for mandamus to compel the government, the first respondent, to disclose agreements relating to the purchase of power, among others. The first respondent and Ethiopia entered into negotiations to develop a power plant. The petitioners argued that by agreeing to purchase electricity from Ethiopia, the respondents were acting in a manner that would deprive members of the affected communities of their livelihood, lifestyle and cultural heritage.
The court considered the following: whether it had jurisdiction to intervene and address the issues; whether the rights of the petitioners had been infringed; and what the respondents’ obligations were. The court held that the subject matter of the petition was an agreement between two sovereign states and the violations of rights were transboundary, thus giving the court jurisdiction to hear the matter.
It stated that the right to life, dignity, economic and social rights were indivisible and would have an adverse impact on the petitioners’ livelihood should the power plant be developed. However, without concrete evidence, the court could not find that their rights were violated. In terms of the access to environmental information, the court held that the State was obliged to encourage public participation, which was only possible if the public had all the information. The court found that the respondents ought to have conducted an environmental impact assessment to ensure that the project would not harm the public. Thus, their right to information was infringed. Accordingly, the court granted the order of a mandamus.
The court determined the threshold for public participation required for the coal-mining project. The court noted that there was no litmus test for determining when a court could conclude that there was adequate public participation. However, the court found that it is necessary to consider the bona fides of the public actor, the nature of the subject matter, the length and quality of the engagement and the number of mechanisms used to reach as many people as possible. On consideration of these factors, the court held that the government complied with the requirement for public participation in the project.
Secondly, the court noted that the non-involvement of the Kitui County Government in the Coal mining project was explained by the fact that the County Government was not in existence at the time of the award of the Concessioning Tender.
Thirdly, the court found the apprehension of deprivation of property to be speculative as the Government had indicated that it would compensate and resettle the affected parties.
Fourthly, the court held that the petitioners could not invoke the court’s jurisdiction to question either the procedural propriety or substantive merits of the procurement process since they did not follow the procurement procedures.
Fifthly, the court found it unnecessary to determine the issue on violation of the right to information, since the Government had supplied a copy of the Benefits Sharing Agreement to all the parties. Finally, the court held that the petitioners failed to prove environmental harm.
Accordingly, the petition was dismissed.
The court considered an application by which the applicants sought an order declaring that their right to life had been contravened by forcible eviction and by settlement of other persons on their land. The applicants were members of the Ogiek community who had been living in East Mau Forest for decades, as food gatherers and hunters. Upon the introduction of colonial rule, the land was declared a forest, however, no land was set aside for the applicants.
The court set out the issues as follows: whether the members of the community had recognizable rights arising from their occupation of the forest; whether in the circumstances of the case, their rights had been infringed by their eviction and allocation of other persons; and whether the settlement was ultra vires.
The court found that the right to a livelihood did not have a definition and could be included in the right to life. Thus, their livelihood was directly dependent on forest resources to sustain their way of life. Further, the court held that the applicants were a minority group who had lost their access to land and their right to live in the forests which was key to their livelihood, thus their rights had been infringed.Finally, the court found that there were significant irregularities made during the allocation of land, thus the settlement scheme was ultra vires and the applicants were therefore entitled to the relief sought.
Accordingly, the application was upheld.
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.
The matter was an appeal from a conviction on the charge of being found in possession of wildlife trophies in contravention of s95 and 92 of the Wildlife Conservation and Management Act of 2013 (“Act”).
The appellant argued that the trial court overlooked the inconsistencies and contradictions in evidence and applied the doctrine constructive possession of the wildlife trophies erroneously.
The court established that evidence must be led to prove the fact of possession and the contradiction in witnesses’ testimonies put the question of possession in doubt. Court also found that the doctrine of recent possession was erroneously applied.
The court considered s92 and established that it does not create an offence in so far as offences in respect of endangered species or their trophies are concerned but only a punishment and as such the suspect could not be tried under it. Further, that the proper provision that created an offence in respect to wildlife trophies and trophies generally was s95 and that suspects should be charged under the same until the Act is amended.
The conviction was quashed and the appeal was allowed on account of failure of the prosecution to prove the case to the required standard.
The petitioner argued that the first respondent violated his right to a clean and healthy environment, by leasing out property to the third respondent for the construction of a telecommunications base transmission mast.
Firstly, the court determined the jurisdiction of the court to decide on a dispute concerning the issuance of an Environmental Impact Assessment License despite the existence of an avenue of redress at the National Environmental Tribunal (NET). The court noted that the dispute could was on one hand based on the issuance of the EIA license by NEMA but it was also based on the violation of the right to health. The court therefore relied on s 13 (3) of the Environment and Land Court Act and held that the court had the requisite jurisdiction.
Secondly, the court determined whether the construction of a telecommunications base transmission mast on property adjacent to that of the petitioner violated the petitioner’s right to a clean and healthy environment. The court noted that the third respondent had not obtained that license thus the mast was constructed illegally and that the 4th respondent had a duty to commence investigation and take necessary legal action.
It was further held that, where a procedure for the protection of the environment was provided for in law but was not followed a presumption would to be drawn that the project violated the right to a clean and healthy environment, or was one that had potential to harm the environment.
Accordingly, the petition was allowed.
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 court considered an appeal against the first respondent’s decision to approve the second respondent’s construction, of a light industry, namely a metal fabricating workshop.
The appellants argued that the approval was granted without public consultation and that the construction would interfere with their quiet occupation of their residences. They alleged that the construction would produce noise, emit fumes and encourage the setting up of other industries in a high class residential area. The first respondent argued that this claim was not one for noise or air pollution, but construction, and it did not fall within the scope of its functions but that of the municipal council. The second respondent argued that all relevant consultations had taken place prior to the approval of the environmental impact assessment (EIA) project report.
The tribunal considered the grounds of appeal and observed that the purpose of the EIA process under the act was to assess the likely, significant impacts of a proposed development project on the environment. It stated that the assessment included air quality, water quality, traffic, noise, and other features of the environment but these considerations were not affected by whether an area is designated as a residential area.
The tribunal held that, there was no evidence to show that the second respondent’s development, would adversely impact on the environment, in the area, in ways that could not be mitigated by the measures that had been proposed by the second respondent in the EIA report.
Accordingly, the appeal was dismissed.
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.
The applicant intended to erect a petrol station and submitted an Environmental Impact Assessment (EIA) report to the respondent for approval. The respondent did not, however, respond to the report within three months, as envisaged in the Environmental Management and Co-ordination Act. The applicant decided to proceed with the project, as permitted by section 58 (9) of the Act.
The respondent stopped the project and handed the applicant a letter to the effect that the proposal for the project had been rejected.
The applicant applied for judicial review orders and submitted that the respondent had failed to conduct public hearings to assess the acceptability of the proposal. Thus, the respondent could not interfere with the applicant’s statutory discretion under section 58 (9) of the Act.
The court had to decide whether the rejection by the respondent was binding and if the respondent had sufficient grounds for the rejection.
The court held that the remedy of judicial review deals with the process, but not the merits of the decision by a tribunal, therefore the respondent’s submission that the applicant should have appealed to the tribunal if aggrieved, was untenable.
Further, that members of the public were denied sufficient opportunity to respond and make their comments. The applicant could not blame the respondents for failing to comply with section 58 (9). The delay in giving the decision was only one month, which in view of the court, was reasonable in the circumstances.
This was a judicial review application against the decision of the respondent to approve the alteration of use of the suit land from residential to office premises. The applicants sought orders of certiorari quashing the decision and prohibition, prohibiting the user from further excavation and construction on the land as well mandamus to compel the respondents to exercise its statutory duty in ensuring no further excavation and construction is done.
The court found that applications for judicial review were brought in the name of the Republic, since a judicial review is a mechanic whereby the state checks on the excesses of its officers and public bodies in performance of their administrative duties. The court noted that the application was not brought in the name of the republic and held that the case was not properly instituted.
Additionally, it was found that all parties affected by the judicial review proceedings such as National Environment Management Authority (NEMA) were not served in accordance with Order 53 r 3(2) of the Civil Procedure Rules which was fatal to the application. As such, although there was no evidence of compliance with s 59 of the Environmental Management and Coordination Act 1999 as well as regulation 17 of the Environmental (Impact Assessment and Audit) Regulations 2003 by NEMA and the user, court could not make any finding as to do so would amount to condemning NEMA unheard.
Accordingly, the application was struck out.
The applicants sought orders of temporary injunction and injunction to restrain the respondents from using the suit property as a wedding ground or place of entertainment of wedding parties and to restrain the respondents from carrying out actions that constitute noise pollution within the meaning of the Environment and Management Co-ordination (Noise and Excessive Vibration) (Control) Regulations 2009 (Legal Notice No.6/2009).
The applicants contended that no Environmental Impact Assessment (EIA) was conducted and notice of change of user was not served on the residents in accordance with the Physical Planning Act. On the other hand, the respondents contended that the applicants had no locus standi as the association was illegal.
The court found that the applicants, being neighbors to the suit property, were aggrieved by the respondents’ actions and had locus to bring the case.
The court noted that the respondents had no EIA license but only a letter of approval from NEMA that contained conditions which they had not complied with. The court also found that the publication of change of user was insufficient as it was done in newspapers of limited circulation and the residents were not personally served. Court further found that the respondents had not complied with Legal Notice No.6/2009.
Accordingly, the court granted the injunctions.
This matter arose from an application for judicial review of a decision of the defendant to issue a notice for the cancellation of the plaintiff’s license. The plaintiff prayed for orders of certiorari, prohibition and mandamus.
The court certified the application as urgent and directed the applicant to serve the respondent. The respondent failed to make an appearance during the hearing, and the court granted leave to stay the notice of cancellation of the licence.
The respondent later filed an application under s 3A of Civil Procedure Act to set aside the stay order. The court found that the replying affidavits filed by the interested parties raised environmental issues and deficiency in the procedure leading to the grant of licence to the applicant.
The court noted its obligation to protect and uphold the authority of all the concerned parties to preserve and manage the environment. The court thus ordered the applicant and the Water Resource Management Authority (interested party) to file joint reports after surveying the riparian reserve area to indicate whether the project had interfered with the reserve. In case of failure to get a joint report, the court ordered the parties to file separate reports from their respective experts within 15 days and prohibited the applicant from developing the area of suit land along the riparian reserve.