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ELCPartially AllowedNot stated in judgment (plaint dated 26th February 2015)· [2015] KEELC 250 (KLR)

Hosea Kiplagat & 6 others v National Environment Management Authority (Nema) & 2 others [2015] KEELC 250 (KLR)

Environment and Land Court
27 July 2015
6,417 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court halted construction of a nursing home in Kabarnet because developers skipped key environmental approval steps required under EMCA.

What this practically means

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Executive summary

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The plaintiffs, owners of neighbouring plots around Plot No. 183 Kabarnet, sued NEMA, the 2nd defendant (a nursing home proponent) and the 3rd defendant (an EIA expert), seeking injunctions restraining construction of a health facility on Plot No. 183, cancellation of the EIA licence, and declarations that the project was unsuitable and the professional advice compromised. Together with the plaint they moved under Order 40 rule 2(1) of the Civil Procedure Rules for a temporary injunction. The defendants' preliminary objections on jurisdiction had earlier been dismissed in a ruling dated 9th April 2015, and the 2nd defendant's application for security of costs was likewise dismissed; a stay application dated 30th April 2015 remained in abeyance. Before the court was the injunction application. Applying Giella vs. Cassman Brown, the court held the plaintiffs had established a prima facie case with probability of success under sections 3, 58, 59 and 60 of EMCA, noting the absence of any lead agency report and unresolved questions over publication of the EIA study. On irreparable harm, the court accepted the applicants' fears of disease exposure and environmental hazards, holding damages inadequate. On balance of convenience, since the change of user from residential to commercial was itself under challenge and the golden rule is to maintain the status quo, the balance favoured the plaintiffs. The court granted the injunction restraining the 2nd defendant from constructing, gathering materials or digging foundations on Plot No. 183 Kabarnet until the suit is heard and determined. No costs order was made.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with probability of success

Holding

Yes. The applicants raised genuine concerns about the project's negative environmental impacts; no lead agency report under section 60 of EMCA was filed, and by dint of sections 3, 58, 59 and 60 of EMCA they established a prima facie case.

Reasoning

The court found the plaintiffs' plots border the 2nd defendant's Plot No. 183 and that they are entitled to a clean and healthy environment under section 3 of EMCA. The 1st defendant's counsel did not address section 60 of EMCA requiring involvement of a lead agency expert, and no lead agency report was filed. The absence of evidence of publication under section 59 and of a lead expert report meant the applicants' concerns were genuine and required the court's intervention.

p. 10
02

Whether the applicants would suffer irreparable harm

Holding

Yes. Unless the project is injuncted, the applicants may suffer irreparably from exposure to disease and other hazards.

Reasoning

The applicants submitted that the project's negative impacts (biomedical waste, air pollution, noise, sewerage) outweigh its positive impacts, and that they and their children risk contracting diseases. The court accepted that at the interlocutory stage it should not make definitive findings of fact but held that unless the project was injuncted the applicants may suffer irreparably, damages being inadequate compensation for environmental harm.

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03

Where the balance of convenience lies

Holding

In favour of the plaintiffs/applicants, since the change of user from residential to commercial is itself being challenged and the status quo should be maintained.

Reasoning

The court noted the disputed location was initially zoned residential, but the 2nd defendant obtained change of user from the County Government of Baringo. That change of user is being challenged by the neighbouring applicants. Applying the golden rule of maintaining the status quo, the court concluded the balance of convenience tilts in favour of the plaintiffs/applicants.

p. 11

Legal principles established

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  • The three-part Giella test governs interlocutory injunctions: prima facie case with probability of success, irreparable loss not compensable by damages, and balance of convenience if in doubt.
  • A prima facie case in civil proceedings is a case in which, on the material presented, a tribunal properly directing itself will conclude there exists a right apparently infringed by the opposite party calling for an explanation or rebuttal.
  • The golden rule in applications for injunctions is to maintain the status quo.

Court orders

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  1. 1.The 2nd defendant/respondent is restrained by himself, his servants, agents and/or employees from constructing, gathering building materials, digging foundation or in any other way interfering with plot No. 183 Kabarnet until this suit has been heard and determined

Authorities

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Legislation

  • Environmental Management and Co-ordination Act (EMCA), Cap 387section 3
  • Environmental Management and Co-ordination Act (EMCA), Cap 387sections 58-67 (specifically 58, 59, 60)
  • Environmental Management and Co-ordination Act (EMCA), 1999section 129
  • Environment and Land Court Act, 2011section 13
  • Environment and Land Court Act, 2011section 22
  • Civil Procedure Rules, 2010Order 40 rules 1, 2(1) and 2(2)
  • Civil Procedure Rules, 2010Order 1 Rule 13(1) & (2)

Cases cited (6)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Mrao Limited –vs- First American Bank Limited
    (2003) KLR 125
  • Shimmers Plaza Ltd v National Bank of Kenya, Cape Suppliers Ltd & another
    [2014] eKLR, ELC Suit No. 1401 of 2013
  • Habib Bank AG Zurich vs. Eugene Marion Yakub
    Civil Application Number Nairobi 43 of 1982, Unreported
  • Francis Jumba Enziano and Others vs. Bishop Philip Okeyo and Others
    Nairobi High Court Civil Case Number 1128 of 2001 (Unreported)
  • Peter Bongoko vs National Environment Management Authority (NEMA)
    (2006) eKLR, H.C at Nairobi Misc. Application No. 1535 of 2005
Jurisdiction invoked
Environment and Land Court Act; Civil Procedure Rules Order 40 rule 2(1) (court's jurisdiction over preliminary objections upheld in ruling dated 9th April 2015)

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, "Hosea Kiplagat & 6 others v National Environment Management Authority (Nema) & 2 others [2015] KEELC 250 (KLR)", Case Analysis (2015). Not stated in judgment (plaint dated 26th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/250/eng@2015-07-27

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