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ELCAllowedPetition dated 31st October 2012· [2014] KEELC 5 (KLR)

African Centre for Rights and Governance (ACRAG) & 3 others v Naivasha Municipal Council [2014] KEELC 5 (KLR)

High Court of Kenya
14 November 2014
LWL N Waithaka
961 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by Waithaka J at the Nakuru High Court dealt with a Notice of Motion dated 23rd July 2013 in a public interest environmental petition concerning the dumping of refuse on Naivasha/Maraigushu Block 11/4 (Karai). The Petitioners, whose substantive petition sought declarations of violation of Article 42, mandatory and prohibitory injunctions and an environmental restoration order, sought leave to publish notice of the petition in a daily newspaper of wide national circulation so that any aggrieved person could apply to be enjoined. The Respondents, through a replying affidavit sworn by the Naivasha Sub-County Administrator Isaac Felix Olwero, opposed the application as incompetent and prejudicial. The court reviewed the pre-2010 restrictive standing position in the Wangari Maathai cases and held that Articles 22(1) and 22(2)(c) of the Constitution and section 111(2) of EMCA now permit suits in the public interest without proof of a right or interest in the affected land. Noting that the Mutunga Rules are silent on advertisement for joinder, the court invoked Order 1 Rule 8(1) and (3) of the Civil Procedure Rules and Rule 5(d) of the Mutunga Rules, and applied the three-pronged test in Rose Florence Wanjiru v Standard Chartered Bank. Finding no demonstrated prejudice or loss to the Respondents, the court allowed the application with costs in the cause.

Key legal issues

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01

Whether public interest litigation may be instituted by private persons without the Attorney General

Holding

Yes. Article 22(1) and 22(2)(c) of the Constitution 2010 expanded locus standi, reversing the pre-2010 position reflected in the Wangari Maathai cases.

Reasoning

The court traced the restrictive pre-2010 approach in the Wangari Maathai cases, where only the Attorney General could sue for the public, and held that the 2010 Constitution addressed this by granting every person, and any person acting in the public interest, standing to enforce Bill of Rights provisions. EMCA section 111(2) reinforces this by removing the need to show a right or interest in the harmed environment.

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02

Whether notice of the petition may be published by newspaper advertisement to enable interested parties to seek joinder

Holding

Yes. Although the Mutunga Rules are silent, Order 1 Rule 8(1) and (3) CPR 2010 and Rule 5(d) of the Mutunga Rules support such an application, and the Respondents showed no prejudice.

Reasoning

The court applied the Rose Florence Wanjiru principles and found the Respondents' replying affidavit demonstrated no prejudice or loss. The court invoked Rule 3(4) and 5(d) of the Mutunga Rules and Order 1 Rule 8 CPR to permit advertisement so all aggrieved persons could be enjoined in this public interest petition.

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Legal principles established

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  • Under Article 22 of the Constitution any person, including a person acting in the public interest, may institute proceedings claiming that a right in the Bill of Rights has been denied, violated or infringed or is threatened.
  • Under section 111(2) of EMCA a plaintiff need not show a right or interest in the property, environment or land alleged to have been harmed.
  • An application for advertisement to join interested parties should be refused where it would afford the plaintiff unfair advantage, prejudice the defendants, or smack of sub judice, per Gikonyo J in Rose Florence Wanjiru v Standard Chartered Bank of Kenya Limited & 2 others.

Court orders

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  1. 1.The Petitioners' Notice of Motion dated 23rd July 2013 is allowed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1); Article 22(2)(c); Article 42
  • Environmental Management and Co-ordination Act, 1999Section 111(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 3(4); Rule 5(d)
  • Civil Procedure Rules, 2010Order 1 Rule 8(1) and (3)

Cases cited (3)

  • Maathai v Kenya Times Media Trust Ltd
  • Maathai & 2 others v City Council of Nairobi & 2 others
  • Rose Florence Wanjiru v Standard Chartered Bank of Kenya Limited & 2 others
    [2014] eKLR
Jurisdiction invoked
Articles 22(1) and 22(2)(c) of the Constitution of Kenya 2010; Rule 3(4) and 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; Order 1 Rule 8(1) and (3) of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "African Centre for Rights and Governance (ACRAG) & 3 others v Naivasha Municipal Council [2014] KEELC 5 (KLR)", Case Analysis (2014). Petition dated 31st October 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/5/eng@2014-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.