Hosea Kiplagat & 6 others v National Environment Management Authority (Nema) & 2 others [2015] KEELC 250 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiffs established a prima facie case with probability of success
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.
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.
Whether the applicants would suffer irreparable harm
Yes. Unless the project is injuncted, the applicants may suffer irreparably from exposure to disease and other hazards.
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.
Where the balance of convenience lies
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.
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.
Legal principles established
#- 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
#- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.