Isaac Chebon & 4 others v County Government of Baringo [2017] KEELC 1550 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped Baringo County from building a cattle dip because its environmental assessment was never approved by NEMA.
What this practically means
#Executive summary
#Key legal issues
#Choice of forum - whether the suit should have been brought by judicial review or constitutional petition
The objection was rejected; the court may determine the matter in the form brought unless the defect is gross and goes to the root of the suit.
The court treated the forum objection as a halfhearted preliminary objection. It held that a preliminary objection for lack of form can only succeed if the defect is gross and prevents a just decision, and Article 159 obliges the court to disregard procedural technicalities, so the plaintiff's choice of a civil suit for injunction was proper.
Prima facie case
Established - NEMA had only acknowledged receipt of the EIA report and directed that no development proceed until it communicated its assessment; no approval letter existed.
The defendant itself annexed NEMA's letter of 21/3/17, which acknowledged the report by Lead Securities Ltd and stated it would be reviewed under the EIA and Audit Regulations 2003, directing that no development commence in the interim. No go-ahead letter existed, so the EIA had not been approved and the plaintiffs' environmental and health concerns gave a probability of success.
Irreparable injury / adequacy of damages
Damages would not adequately compensate for harm from environmental pollution affecting health.
Given the prima facie case and the environmental pollution context, the court reasoned that monetary compensation for health effects of pollution would be inadequate, since medical costs cannot guarantee cure. This disposed of the second Giella criterion in favour of injunctive relief.
Legal principles established
#- An Environmental Impact Assessment report is merely a proposal until reviewed and approved by NEMA; development may not commence until NEMA communicates its approval.
- A preliminary objection based on form will only be upheld where the defect is gross and goes to the root of the suit; the court must not sacrifice substantive justice to procedural technicalities under Article 159.
- In environmental pollution cases, damages are generally not an adequate remedy.
Court orders
#- 1.Temporary injunction restraining the defendant, its employees, servants and/or agents from constructing a cattle dip on plot No. BARINGO/KEWAMOI 'B'/856 until an Environmental Impact Assessment is given
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; Article 159 of the Constitution invoked on procedural technicalities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Chebon & 4 others v County Government of Baringo [2017] KEELC 1550 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 14th February, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1550/eng@2017-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.