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ELCAllowed· [2014] KEELC 665 (KLR)

J.S Muiru & 2 others v Tigoni Treasurers Limited & 2 others [2014] KEELC 665 (KLR)

Environment and Land Court
14 November 2014
JMJ. M. MUTUNGI
5,810 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a NEMA licence because residents were never consulted, and stopped the development until a proper environmental assessment is done.

What this practically means

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Executive summary

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The plaintiffs, members of Tigoni Residents Association, moved the court by Notice of Motion dated 23rd July 2014 seeking to restrain the defendants from constructing 27 maisonettes (24 approved) on L.R. No. 7660/72 Ithanji Road, Tigoni, on grounds that the change of user, development permission and NEMA licence were procured without public participation or consultation with the Association, contrary to the Physical Planning Act, EMCA and Articles 42, 69 and 70 of the Constitution. The defendants argued the plaintiffs were premature and incompetent, having failed to exhaust appeal procedures under the Physical Planning Act and the NEMA Tribunal under EMCA, and that they had obtained all requisite approvals. The court framed three issues: jurisdiction, legality of the change of user and development permission, and the conditions for temporary injunction. It held it had jurisdiction over environmental matters under Article 162(2)(b), the Environment and Land Court Act and section 3 EMCA, distinguishing Sanjay Solanki and Abuga where development permission was the principal issue. Finding no evidence of the public participation required by Regulations 17 and 21, the court held the NEMA licence of 15th July 2014 was not in compliance with the law, set it and the EIA study report aside, found a prima facie case, and granted an injunction restraining multi-dwelling development pending determination of the suit, with a fresh EIA to involve the plaintiffs as interested parties. Costs were made costs in the cause.

Key legal issues

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01

Whether the court had jurisdiction given the alleged requirement to exhaust Physical Planning Act and EMCA procedures

Holding

The court has jurisdiction over environmental matters as the Environment and Land Court established under Article 162(2)(b) and section 13(a) of the ELC Act; exhaustion arguments under the Physical Planning Act apply only where development permission is the principal issue, and EMCA's NEMA Tribunal is not mentioned in the constitutional scheme.

Reasoning

The court distinguished Sanjay Solanki and Abuga, where the principal issue was development permission under the Physical Planning Act. Here the principal complaint is environmental. The Constitution and the ELC Act make no mention of the NEMA Tribunal, so the court with jurisdiction over environmental matters is the Environment and Land Court, notwithstanding the Tribunal's jurisdiction under section 129 of EMCA.

p. 9
02

Whether the change of user and NEMA licence complied with the law

Holding

The EIA process and the NEMA licence were flawed for want of public participation; the licence was set aside.

Reasoning

There was no evidence of the publicity, posting of notices, newspaper publication or public meetings required by Regulation 17, nor of NEMA's invitation for public comments under Regulation 21(1). The only consultation was a meeting on 27/6/2014 instigated by the plaintiffs, whose concerns were not considered before the licence issued on 15th July 2014. The denial of a hearing vitiated the process.

p. 9
03

Whether the plaintiffs satisfied the conditions for a temporary injunction

Holding

A prima facie case was established; a conservatory order was granted pending a fresh EIA involving the plaintiffs as interested parties.

Reasoning

Giella v Cassman Brown sets out the conditions, but they apply flexibly in environmental matters where damages may be unascertainable and environmental damage irreversible; the precautionary principle applies. Given the flawed EIA study, the plaintiffs established an arguable, non-frivolous case warranting a conservatory order pending a credible EIA in which they are duly involved.

p. 10

Legal principles established

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  • Where the principal issue touches and relates to the environment, the Environment and Land Court has jurisdiction notwithstanding the existence of the NEMA Tribunal under EMCA.
  • Public participation is the single most critical requirement in an Environmental Impact Assessment study and without it the approval/license cannot stand.
  • Where the issue is whether or not development permission has been appropriately issued, it is premature to approach the court before exhausting the appeals procedure under the Physical Planning Act.
  • Giella v Cassman Brown principles apply in environmental matters not in a strict sense; the precautionary principle applies where there are threats to the environment.

Court orders

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  1. 1.That the Defendants by themselves, their agents and/or servants be and/are hereby restrained from constructing and/or developing multi-dwelling houses and/or maisonettes on land parcel L.R NO. 7660/72 Ithanji Road, Tigoni pending the hearing and determination of this suit and/or further orders of the court.
  2. 2.That the Environmental Impact Assessment (EIA) study report on the proposed Tigoni Treasures Development on plot 7660/72 Ithanji Road, Tigoni Kiambu County prepared by Peman Consultants Ltd and the NEMA Environmental Impact Assessment License issued on 15th July 2014 pursuant to the Environment Impact Assessment Study report is hereby set aside and a fresh Environmental Impact Assessment Study report on the proposed project is hereby ordered to be conducted involving the plaintiffs as interested parties.
  3. 3.The costs of the application shall be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Constitution of Kenya 2010Articles 42, 60, 69, 70, 162(2)(b), 165(3)
  • Environment Management and Co-ordination Act (No. 8 of 1999)Sections 3, 58, 59, 60, 125, 129, 111
  • Environment and Land Court Act (No. 19 of 2011)Section 13(a)
  • Physical Planning Act (Cap 286)Sections 7, 8, 10(1), 10(2), 29-40, 38
  • Environmental (Impact Assessment and Audit) Regulations 2003Regulations 2, 11, 17(1), 21(1), 21(2), 22

Cases cited (4)

  • Sanjay Solanki & 8 others –vs- Hirji Kanji Patel & 5 others
    (2013) eKLR
  • Jeremiah Nyandusi Abuga & 17 others –vs- City Council of Nairobi
    (2013) eKLR
  • Speaker of National Assembly –vs- Njenga Karume
    (2008) 1 KLR
  • GIELLA –VS- CASSMAN BROWN & CO. LTD
    (1973) EA 358
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(a) of the Environment and Land Court Act (Act No. 19 of 2011), read with Section 3 of the Environmental Management and Co-ordination Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "J.S Muiru & 2 others v Tigoni Treasurers Limited & 2 others [2014] KEELC 665 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/665/eng@2014-11-14

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