John Kabukuru Kibicho & another v County Government of Nakuru & 2 others [2016] KEELC 216 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC vis-a-vis Physical Planning Liaison Committees
The court has jurisdiction; the Liaison Committee avenue was unavailable to the petitioners because they were never notified of the approval decision
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).
Locus standi of the petitioners and the Association
Petitioners have locus standi; a society sues through its officials and no personal loss need be shown in environmental claims
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.
Whether a proper EIA was conducted
No; the EIA report was casually done, failed to identify those consulted, and breached Regulation 17 of the EIA and Audit Regulations, 2013
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.
Whether planning approval for change of user was lawfully granted
No; Sections 41(3) and 52 of the Physical Planning Act were breached and the petitioners' objection was never considered or communicated
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.
Constitutional violations
Violations of Articles 10, 42, 47 and 73 established; no violation of Article 24 declared
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.
Legal principles established
#- 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
#- 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.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.Cancellation of the Environmental Impact Assessment Licence and the Change of User licence issued to the 2nd respondent
- 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.An environmental restoration order to issue directing the 2nd respondent to restore the site if it does not move as ordered
- 6.Respondents to bear the costs of the petition jointly and/or severally
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.