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ELCPartially AllowedPetition No. 214 of 2010· [2014] KEELC 511 (KLR)

Friends of Lake Turkana Trust v Attorney General & 2 others [2014] KEELC 511 (KLR)

Environment and Land Court
19 May 2014
12,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~48 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered the government to disclose all Ethiopia electricity agreements affecting Lake Turkana, but declined to stop further deals.

What this practically means

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Executive summary

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The Friends of Lake Turkana Trust petitioned against the Government of Kenya, Kenya Power & Lighting Company and (as joined interested party) the Kenya Electricity Transmission Company, seeking mandamus compelling disclosure of all agreements, including the 2006 Memorandum of Understanding, with Ethiopia relating to the purchase of 500MW from the Gibe III dam, and prohibition against further agreements until an independent environmental impact assessment of the dam's effects on Lake Turkana was undertaken. The petition, originally filed in the High Court in 2010, was transferred to the Environment and Land Court under Article 162(2)(b). The court first held it had jurisdiction: although the harm originated in Ethiopia, the parties were all Kenyan entities and the claim rested on the Kenyan Bill of Rights, supported by section 13(3) of the Environment and Land Court Act. On the merits, the court accepted evidence of a likely adverse transboundary impact of the Gibe dams on Lake Turkana and the communities dependent on it, but declined to find actual infringement of the rights to life, dignity, livelihood and cultural heritage absent concrete evidence, the reports being merely predictive. It found, however, that the risk imposed a positive duty on the state respondents to disclose relevant information under Article 35, and held the Energy Act licensing procedures inapplicable to intergovernmental agreement terms. Applying the precautionary and public trust doctrines, the court held the respondents and interested party were trustees of Lake Turkana with a duty to ensure sustainable management and to establish that no environmental harm would arise. Mandamus for disclosure was granted; prohibition was refused because foreign policy and treaty-making decisions are non-justiciable. Each party was ordered to bear its own costs, the matter being of public interest.

Key legal issues

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01

Jurisdiction over transboundary environmental and constitutional claims

Holding

The court had jurisdiction because the parties were all Kenyan entities, the claim was founded on the Kenyan Constitution and Bill of Rights, and the alleged violations arose from the conduct of Kenyan state actors; the transboundary origin of the harm did not oust jurisdiction.

Reasoning

The court acknowledged the territorial presumption in national and public international law and state immunities, but noted no foreign state was a party. The subject matter concerned the Petitioner's fundamental rights and alleged violations by Kenyan respondents under the Kenyan Constitution. The court further relied on section 13(3) of the Environment and Land Court Act conferring jurisdiction over Article 42, 69 and 70 claims.

p. 7
02

Whether the rights to life, dignity, livelihood and cultural heritage had been infringed

Holding

No actual infringement was established; the reports relied upon assessed only possible effects at the planning and implementation stages, so the court declined to find a violation absent concrete evidence of actual harm.

Reasoning

The court accepted credible evidence (the Africa Resources Working Group commentary and the International Rivers report) showing a likelihood of adverse transboundary impact on Lake Turkana and dependent communities. However, it found no evidence of actual effect on the Petitioner's rights, all reports being predictive, and therefore declined to make a finding of infringement at that stage.

p. 11
03

The right of access to information under Article 35

Holding

The State bore a positive duty to provide the environmental and contractual information sought; the Energy Act licensing procedures were not applicable as the information required related to the terms of intergovernmental agreements.

Reasoning

Applying Article 35 and Article 69(1)(d), and the principle in Nairobi Law Monthly, the court held access to environmental information is a prerequisite to public participation. The State's duty to publish and publicize important information under Article 35(3) applied. The Energy Act advertisement and objection procedures did not cover disclosure of agreement terms between governments.

p. 13
04

The State's obligations as trustee of the environment and the precautionary principle

Holding

The Respondents and Interested Party, as trustees of the environment, were under a duty to ensure sustainable management of Lake Turkana's resources and, applying the precautionary principle, bore the burden of establishing that no environmental harm would arise from the agreements and projects.

Reasoning

Relying on Article 69 of the Constitution, the UNESCO World Heritage status of Lake Turkana, the public trust doctrine in M. C. Mehta v Kamal Nath, and the precautionary principle as set out in the Judicial Handbook on Environmental Law, the court held that scientific uncertainty and the absence of completed power purchase agreements did not relieve state agencies of their duty to prevent transboundary environmental harm.

p. 15
05

Whether an order of prohibition could issue against future government agreements with Ethiopia

Holding

Prohibition was refused; the decision to enter future agreements with a foreign state involves economic and political judgments in the exercise of prerogative powers and is not justiciable, and environmental impact assessment obligations under domestic law apply only to projects in Kenya.

Reasoning

Guided by Council of Civil Service Unions and Bentley, the court held that foreign policy decisions are generally non-justiciable. The court agreed with the respondents that the domestic EIA obligation applied to projects within Kenya, while noting that transboundary EIA is emerging as customary international law, with recourse lying in regional or international fora.

p. 17
06

Whether mandamus should issue for disclosure of agreements

Holding

Mandamus was granted compelling full disclosure of all agreements and arrangements with the Government of Ethiopia relating to the electricity purchase, including the 2006 MoU.

Reasoning

Having found that the Petitioner had established its right to information and a positive state duty to disclose environmental information, and applying the scope of mandamus in Kenya National Examination Council v Republic Ex-Parte Gathenji as compelling performance of a public duty, the court held the Petitioner entitled to the order of mandamus.

p. 17

Legal principles established

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  • The Environment and Land Court has jurisdiction to hear and determine constitutional petitions involving transboundary environmental harm where the respondents and the alleged violations are Kenyan entities, notwithstanding that the originating conduct may have occurred in a foreign state.
  • A violation of the right of access to information cannot be alleged before a request for the information has been made.
  • Access to environmental information is a prerequisite to effective public participation in environmental decision-making, and the State bears a positive duty to provide relevant environmental information.
  • Under the precautionary principle, even absent concrete evidence of harm, state agencies engaged in projects with potential transboundary environmental harm bear the burden of establishing that no environmental harm arises.
  • The State, as trustee of the environment and natural resources, owes a duty to ensure the sustainable management, utilization and conservation of natural resources such as Lake Turkana.
  • Decisions relating to the conduct of foreign policy and relations with other states, including the making of treaties and agreements, are generally not subject to judicial review as they involve questions of policy with which courts are ill equipped to deal.

Court orders

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  1. 1.An order of mandamus directed to the Government of Kenya, Kenya Power and Lighting Company Limited and the Kenya Electricity Transmission Company Limited compelling them to forthwith make full and complete disclosure to the Petitioner of each and every agreement or arrangement entered into or made with the Government of Ethiopia (including its parastatals) relating to the proposed purchase of electricity from Ethiopia and/or the Gibe III project, including the 2006 Memorandum of Understanding.
  2. 2.A direction to the Government of Kenya, Kenya Power and Lighting Company Limited and the Kenya Electricity Transmission Company Limited to forthwith take the necessary steps and measures to ensure that the natural resources of Lake Turkana are sustainably managed, utilized and conserved in any engagement with, and in any agreements entered into or made with, the Government of Ethiopia relating to the purchase of electricity.
  3. 3.Refusal of the order of prohibition sought against the Government of Kenya and Kenya Power and Lighting Company Limited from entering into further agreements with the Government of Ethiopia until an independent environmental impact assessment on the effects of Gibe III on Lake Turkana is conducted.
  4. 4.Each party to bear their own costs.
Jurisdiction invoked
Articles 22, 23, 70 and 165(3)(b) of the Constitution; section 13(3) of the Environment and Land Court Act, 2012 (petition originally filed in the High Court under section 84 of the former Constitution and transferred under Article 162(2)(b))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Friends of Lake Turkana Trust v Attorney General & 2 others [2014] KEELC 511 (KLR)", Case Analysis (2014). Petition No. 214 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/511/eng@2014-05-19

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