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ELCPartially AllowedConstitutional Petition filed 21 March 2016 (Environment and Land Court, Nakuru)· [2016] KEELC 216 (KLR)

John Kabukuru Kibicho & another v County Government of Nakuru & 2 others [2016] KEELC 216 (KLR)

Environment and Land Court of Kenya
13 October 2016
10,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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Nakuru residents won a court order cancelling licences for a flat development because the county and NEMA skipped required public participation steps.

What this practically means

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Executive summary

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Residents of Milimani Estate, Nakuru, through their registered welfare association and its officials, petitioned against the County Government of Nakuru's approval of a change of user and NEMA's issuance of an EIA licence allowing the 2nd respondent to develop 32 flats (later scaled down to 24 units in three storeys) on land planned for a single dwelling unit. The respondents argued lack of jurisdiction (the Physical Planning Liaison Committees being the proper forum), lack of locus standi, delay, and due compliance with all approvals. The court held it had jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, since the petitioners, never having been notified of the approval decision, could not have appealed to the Liaison Committees within the statutory period, and an authority cannot use its own omission to bar access to court. Locus standi was affirmed under Article 70(3) of the Constitution and Section 3(4) of EMCA, which dispense with proof of personal loss or injury. On the merits, a site visit confirmed the project was out of character with the low-density neighbourhood. The EIA report was found casually done - describing the site as ranching land and relying on anonymous, undated questionnaires - in breach of Regulation 17's public participation requirements. The planning approval breached Sections 41(3) and 52 of the Physical Planning Act (single English-only advertisement, no Gazette notice, no Kiswahili daily, no notice to the Chief), and the petitioners' objection was never considered or communicated. Violations of Articles 10, 42, 47 and 73 were declared; no violation of Article 24 was found. The EIA and change of user licences were cancelled, with liberty to reapply within three months upon full compliance and hearing of objections, failing which an environmental restoration order would issue. Respondents to bear costs jointly and/or severally.

Key legal issues

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01

Jurisdiction of the ELC vis-a-vis Physical Planning Liaison Committees

Holding

The court has jurisdiction; the Liaison Committee avenue was unavailable to the petitioners because they were never notified of the approval decision

Reasoning

Although the Physical Planning Act provides Liaison Committees for appeals against planning decisions, the petitioners could not appeal within the statutory 60 days because the 1st respondent never communicated its decision to them. The respondents could not use their own omission to shut the door of justice. The dispute relates to land use planning and environment, falling under Section 13 of the ELC Act and Article 162(2)(b).

p. 7
02

Locus standi of the petitioners and the Association

Holding

Petitioners have locus standi; a society sues through its officials and no personal loss need be shown in environmental claims

Reasoning

The individual petitioners are officials of a registered society (Certificate No. 32770) and may sue on its behalf. Under Article 70(3) of the Constitution and Section 3(4) of EMCA, an applicant need not show personal loss or injury to enforce environmental rights; mere apprehension of environmental harm suffices, provided the action is not frivolous, vexatious or an abuse of process.

p. 8
03

Whether a proper EIA was conducted

Holding

No; the EIA report was casually done, failed to identify those consulted, and breached Regulation 17 of the EIA and Audit Regulations, 2013

Reasoning

The EIA report described the site as ranching land when it held a dwelling; its questionnaires were undated, anonymous and unnamed, so it was unknown who was interviewed. No posters, newspaper notices or public meetings were held as Regulation 17 requires. The report was done clandestinely and in secrecy, and NEMA nonetheless issued a licence.

p. 12
04

Whether planning approval for change of user was lawfully granted

Holding

No; Sections 41(3) and 52 of the Physical Planning Act were breached and the petitioners' objection was never considered or communicated

Reasoning

A change of user affects contiguous land, triggering service on adjacent owners, Gazette notice, publication in two dailies (English and Kiswahili) and notice to the Chief; only one English newspaper advertisement was placed. The minutes produced were unsigned and uncertified and did not show the objection was debated. No communication was made enabling an appeal.

p. 13
05

Constitutional violations

Holding

Violations of Articles 10, 42, 47 and 73 established; no violation of Article 24 declared

Reasoning

The casual dismissal of the objection breached fair administrative action (Article 47); the required public participation was absent, offending Article 10 national values; the officers failed their Article 73 public trust obligations. The breaches of EMCA and the Physical Planning Act demonstrated potential harm to the right to a clean and healthy environment under Article 42.

p. 13

Legal principles established

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  • An applicant enforcing environmental rights under Article 70(3) and Section 3(4) EMCA need not demonstrate personal loss or injury
  • A public authority cannot rely on its own failure to communicate a decision to bar an aggrieved person from accessing the court
  • Where a procedure for the protection of the environment is provided by law and is not followed, an assumption arises that the project violates or has potential to harm the right to a clean and healthy environment
  • Change of user applications must be served on owners/occupiers of adjacent property and published in the Gazette and in two local dailies (one English, one Kiswahili)

Court orders

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  1. 1.Declaration that the respondents' actions in granting the EIA licence and change of user licence for Nakuru Municipality/Block 11/53 contravened Articles 10, 47 and 73 of the Constitution
  2. 2.Declaration that failure to comply with EMCA and the Physical Planning Act breached, or had the potential to breach, the petitioners' right to a clean and healthy environment under Articles 42 and 70
  3. 3.Cancellation of the Environmental Impact Assessment Licence and the Change of User licence issued to the 2nd respondent
  4. 4.Liberty for the 2nd respondent to renew the licence applications within 3 months, with the 1st and 3rd respondents ordered to ensure full compliance with the Constitution and statutes, consider the views of the petitioners and owners/occupiers of contiguous land, and communicate any decision with full reasons
  5. 5.An environmental restoration order to issue directing the 2nd respondent to restore the site if it does not move as ordered
  6. 6.Respondents to bear the costs of the petition jointly and/or severally

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 24, 35, 42, 47, 48, 50, 60(1), 66, 68, 69(1)(d), 70, 73, 162(2)(b)
  • Environment Management and Coordination Act, 1999 (EMCA)Sections 3, 36
  • Physical Planning ActSections 7, 10, 13, 15, 41(3), 52
  • Environment and Land Court Act, 2011Section 13
  • Environmental (Impact Assessment and Audit) Regulations, 2013Regulation 17
  • Societies Act (CAP 108)null

Cases cited (8)

  • Republic vs Town Planning Committee of the City Council of Nairobi & 2 Others
    Misc. Civil Case No. 753 of 2007
  • Doctors for Life International vs Speaker of the National Assembly and Others
    (CCT12/05) (2006) ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC)
  • Robert N. Gakuru & Others vs Governor Kiambu County & 3 Others
    (2014) eKLR
  • Commissioner of Lands vs Kunste Hotel Limited
    (1997) eKLR
  • International Centre for Policy and Conflict vs AG & 4 Others
    full citation not given
  • Anarita Karimi Njeru
    null
  • Trusted Society of Human Rights Alliance vs AG & Others
    High Court Petition No. 229 of 2012
  • Ken Kasinga vs Daniel Kiplagat Kirui & 5 Others
    Nakuru ELC Constitutional Petition No. 50 of 2013
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "John Kabukuru Kibicho & another v County Government of Nakuru & 2 others [2016] KEELC 216 (KLR)", Case Analysis (2016). Constitutional Petition filed 21 March 2016 (Environment and Land Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/216/eng@2016-10-13

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