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ELCOtherNot stated in the judgment (plaint dated 27th June 2013, amended 4th July 2013)· [2017] KEELC 2675 (KLR)

Micheal Otieno Nyaguti v Jack Ranguma & 4 others [2017] KEELC 2675 (KLR)

Environment and Land Court
22 June 2017
3,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, Michael Otieno Nyaguti, sued Jack Ranguma, Evans Kidero, Alice Kaudia, the Director of NEMA and the Permanent Secretary Ministry of Water and Natural Resources by a plaint dated 27th June 2013, alleging that developments by the 1st to 3rd Defendants were encroaching on Lake Victoria wetlands and threatening biodiversity, community access to the lake and public health. Together with the plaint he filed an amended notice of motion dated 4th July 2013 seeking unconditional release of EIA information by NEMA and a temporary injunction against construction in the disputed wetland areas. The 1st and 2nd Defendants opposed by grounds of contention that the suit was incompetent and an abuse of process; the 3rd and 4th Defendants filed replying affidavits. The court identified four issues: whether the developments touch Lake Victoria and require EIA reports; whether EIA reports were submitted to NEMA; whether NEMA declined to avail them; and whether an interlocutory injunction was warranted. The court first resolved the standing objection, holding that under Articles 22, 42, 70 and 159(2) of the Constitution the plaintiff, as a member and chairman of a CBO, had locus standi without demonstrating loss. It found only the 1st Defendant had submitted an EIA report, to which the plaintiff was entitled access under Article 35 and section 3A of EMCA. Noting the absence of expert evidence on encroachment, the court deferred final determination of the motion and ordered the County Land Registrar, Surveyor and County Director of Environment to visit the listed parcels, confirm lake boundaries, report on encroachment and obstruction of access within ninety days, with mention thereafter.

Key legal issues

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01

Plaintiff's locus standi

Holding

The Plaintiff, as a member and Chairman of Magnam Environmental Network (CBO) and a person alleging threat to environmental rights, has locus to prosecute the suit and motion for himself and the CBO

Reasoning

The court held that Articles 22, 42, 70 and 159(2)(d) and (e) confer standing on any person acting in their own interest, in the public interest, or as a member of a group or association. Under Article 70(3) an applicant need not demonstrate loss or injury. The court noted prior rulings had already disposed of objections on defectiveness and abuse of process, leaving only locus to be determined, which it resolved in the Plaintiff's favour.

p. 5
02

Right of access to EIA information

Holding

Only the 1st Defendant had submitted an EIA report, acknowledged on 18th December 2012; the Plaintiff is entitled to access it under Article 35 and section 3A of EMCA

Reasoning

The 4th Defendant disclosed that only the 1st Defendant had provided an EIA report for plots Kisumu/Korando/3755 and 3756. The Plaintiff's letters of 4th October 2012 and 12th February 2013 did not request the EIA reports, but the court emphasized that every citizen has a constitutional right of access to information held by the state, so the Plaintiff is entitled to the information subject to laid-down procedures.

p. 5
03

Whether EIA reports and licences are required for the Defendants' projects

Holding

Projects touching the lake and alleged to encroach on the wetland fall within the Second Schedule to EMCA and require EIA reports and licensing; conclusive determination awaits trial

Reasoning

Section 58(2) of EMCA requires proponents of projects in the Second Schedule to undertake a full EIA study and submit a report before licensing. Section 4 of the Second Schedule captures any project located within a prescribed distance of a wetland, lake or other water body. The court could not conclusively determine at the interlocutory stage whether the Defendants' projects fall in that category, but held any encroachment or threat to the wetland should be stopped pending hearing.

p. 6
04

Temporary and mandatory injunction at the interlocutory stage

Holding

Injunction determination deferred; instead a court-directed site visit by the Land Registrar, Surveyor and County Director of Environment was ordered to establish the extent of any encroachment

Reasoning

The Plaintiff had not availed any expert report establishing that the fencing and structures were actually on the riparian areas. In the absence of expert evidence, the court considered it fair to direct an official site visit and boundary confirmation on the listed parcels, with a report on encroachment and obstruction of access to the lake, before deciding the motion finally.

p. 6

Legal principles established

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  • Any person, with or without personal interest, has locus standi under Articles 22 and 70 of the Constitution to institute proceedings to protect the right to a clean and healthy environment, without demonstrating loss or injury
  • Every citizen has a right of access to information held by the state, including EIA reports, under Article 35 of the Constitution and section 3A of EMCA
  • Projects located within a prescribed distance of a wetland, lake or other water body are subject to EIA study reports and licensing under section 58(2) of EMCA and the Second Schedule

Court orders

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  1. 1.That the County Land Registrar and Surveyor Kisumu County, in conjunction with the County Director of Environment, Kisumu, do visit the land parcels listed in the Amended plaint (Kisumu/Korando/3755 and 3756; Kisumu Korando/3831, 3833 to 3836, 2839 and 4458; Kisumu/Kogony/3582 and 3583)
  2. 2.That they confirm the boundaries of those parcels with the neighbouring lake
  3. 3.That they report on any structural developments, including fencing, encroaching onto the riparian areas and the extent of any encroachment
  4. 4.That they report on any development that hinders residents of the neighbouring areas from accessing the lake
  5. 5.That the reports be filed with the court within ninety (90) days
  6. 6.That the matter be fixed for mention for further directions in respect of the amended notice of motion

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 159(2)(d) and (e)
  • Environment Management and Coordination Act No. 8 of 1999Section 3A
  • Environment Management and Coordination Act No. 8 of 1999Section 58(2) and Second Schedule (Sections 2 and 4)
  • Civil Procedure RulesProvisions on representative suits
Jurisdiction invoked
Articles 22, 42, 70 and 159(2)(d) and (e) of the Constitution of Kenya, 2010

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, "Micheal Otieno Nyaguti v Jack Ranguma & 4 others [2017] KEELC 2675 (KLR)", Case Analysis (2017). Not stated in the judgment (plaint dated 27th June 2013, amended 4th July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2675/eng@2017-06-22

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