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ELCPartially AllowedNotice of Motion dated 31st February 2017 (case number not stated in judgment)· [2017] KEELC 2113 (KLR)

Edgar Kipsase Choge, Harry Jumbati Mbiti, Fred Ombiri, Colleta Inzayi (Suing on behalf of Kamobon Village Residents) v China Overseas Engineering Group Co. Ltd & 3 others [2017] KEELC 2113 (KLR)

Environment and Land Court
27 July 2017
3,468 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court stopped a county-backed stone crushing project on public grazing land, confirming that any Kenyan can sue to protect the environment without proving personal loss.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Eldoret (M.A Odeny, J) on a Notice of Motion by four plaintiffs suing on behalf of 73 Kamobon Village residents, seeking a temporary injunction restraining the 1st defendant from entering, digging holes, crushing stones, erecting or constructing on land parcel NANDI/KAPSENGERE/1085, land they contend is public/community land designated for grazing and held in trust by the county government, together with mandatory restoration and costs. The 1st defendant opposed the application, arguing the land is registered in the name of the Nandi County Government in trust for the public, that the court lacked jurisdiction (the matter belonging to the High Court's Constitutional and Judicial Review Division), that the project to rehabilitate the Kisumu-Kakamega section of the Kisumu-Kitale road was in the public interest, and that the plaintiffs had not demonstrated representative authority or a community claim under Anarita Karimi Njeru. The 3rd defendant sought striking out, relying on G.B.M Kariuki and Nancy Kahoya Amadiva. The court first found it had jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act, and that the plaintiffs had locus standi under Articles 42 and 70 since environmental standing requires no demonstration of individual loss, reinforced by the signed authority to sue. It declined to strike out the 3rd defendant. Applying Giella v Cassman Brown, the court found stone crushing, noise and dust confirmed by the defendants' own NEMA annexures and an expired lease, establishing a prima facie case; environmental damage is irreparable and intergenerational; and the balance of convenience favours the plaintiffs. The application was allowed with a temporary injunction, order 11 compliance within 30 days, and costs in the cause.

Key legal issues

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01

Locus standi of plaintiffs suing on behalf of village residents

Holding

Plaintiffs have locus standi; Articles 42 and 70 give any person the right to raise environmental issues without demonstrating individual suffering, and the plaintiffs had authority signed by them to sue on behalf of 73 Kamobon Village residents

Reasoning

The court held that constitutionalised environmental rights remove the old requirement that an applicant show personal loss over and above others. The plaintiffs signed an authority to sue and sign documents dated 1st February 2017 on behalf of 73 Kamobon Village residents, satisfying any further requirement of representation.

p. 5
02

Jurisdiction of the Environment and Land Court

Holding

The court is clothed with jurisdiction; the dispute relates to environment, community land held in trust by the county government and land use, squarely within Article 162(2)(b) and section 13 of the Environment and Land Court Act

Reasoning

The 1st defendant argued the matter belonged in the Constitutional and Judicial Review Division of the High Court, citing Owners of Motor Vessel 'Lilian S'. The court found the dispute involves public/community land reserved for grazing and environmental activities, and noted the 1st defendant's defence dated 7th March 2017 did not dispute the court's jurisdiction.

p. 6
03

Prima facie case for temporary injunction

Holding

Plaintiffs established a prima facie case with probability of success; stone crushing, emissions and noise on the suit land were confirmed by the defendants' own annexures and an expired lease with no evidence of renewal

Reasoning

The plaintiffs' claim was reinforced by the 1st defendant's replying affidavit and annexures, including a NEMA letter dated 6th December 2016 confirming noise and dust, an inspection report dated 1st December 2016, and minutes of a 17th January 2017 meeting. The 4-year lease had expired with no evidence of renewal.

p. 6
04

Irreparable harm and balance of convenience

Holding

Environmental damage is not adequately compensable in damages, and the balance of convenience tilts in favour of the plaintiffs because the defendants had not implemented mitigation measures

Reasoning

The court weighed the public benefit of the road rehabilitation project against environmental degradation and health impacts, noting environmental impact assessments exist precisely to ensure mitigation measures protect surrounding communities, which the defendants had failed to implement.

p. 6

Legal principles established

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  • Any person may raise environmental issues without demonstrating personal or individual suffering; the Constitution cured the old locus standi requirement
  • The Environment and Land Court has original and appellate jurisdiction over disputes relating to the environment and to public, private and community land under Article 162(2)(b) and section 13 of the Environment and Land Court Act
  • Environmental damage has intergenerational effects that cannot be adequately compensated by damages

Court orders

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  1. 1.Pending the hearing and determination of the suit, the 1st Defendant/Respondent, by themselves, their agents, servants, employees and/or any other person acting on its instructions, are restrained from entering, digging holes, crushing stones, erecting or constructing over land parcel number NANDI/KAPSENGERE/1085
  2. 2.The parties to comply with order 11 within 30 days
  3. 3.The costs of the application shall be costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 63(1) and 63(2)(i)
  • Constitution of Kenya, 2010Article 61
  • Constitution of Kenya, 2010Article 10(1)(a)
  • Constitution of Kenya, 2010Articles 42, 69 to 72 and 70(1)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Land Act, 2012Section 12(2)(b) and (c)
  • Environment and Land Court ActSection 13(1) and (2)
  • Environmental Management and Coordination Act, Cap 387Section 3 and 3(5)
  • Civil Procedure RulesOrder 11

Cases cited (5)

  • Giella vs Cassman Brown
    (1973) EA 358
  • The Owners of Motor Vessel "Lilian S" vs Caltex Oil Kenya Ltd
    (1989) KLR 1
  • Anarita Karimi Njeru vs Republic
    (1976-1980) KLR 1272
  • G.B.M Kariuki v Nation Media Group Limited & 3 Others
    [2012] eKLR
  • Nancy Kahoya Amadiva v Expert Credit Limited & another
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act

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, "Edgar Kipsase Choge, Harry Jumbati Mbiti, Fred Ombiri, Colleta Inzayi (Suing on behalf of Kamobon Village Residents) v China Overseas Engineering Group Co. Ltd & 3 others [2017] KEELC 2113 (KLR)", Case Analysis (2017). Notice of Motion dated 31st February 2017 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2113/eng@2017-07-27

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