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ELCPartially AllowedPetition No 50 of 2012· [2017] KEELC 2781 (KLR)

African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha (Petition 50 of 2012) [2017] KEELC 2781 (KLR)

Environment and Land Court
31 May 2017
7,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's courts confirmed anyone can sue to protect the environment without proving personal harm, and county governments must licence their dumpsites.

What this practically means

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Executive summary

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This was a constitutional petition filed on 1 November 2012 by an NGO and three residents of Naivasha against the Municipal Council of Naivasha (now succeeded by the County Government of Nakuru) over the management of a dumpsite on land parcel Naivasha/Maraigushu Block 11/4 (Karai). The petitioners sought declarations that Article 42 of the Constitution had been violated, mandatory injunctions to relocate and restore the dumpsite, a prohibitory injunction to stop dumping, an environmental restoration order and costs. The respondent denied failing its duty, citing mitigation efforts and a landfill site evaluation study. The court visited the site and described it as a shocking, unfenced, open-surface dump littered with polythene, frequented by animals and scavengers. Applying Articles 42 and 70 of the Constitution, the court held that petitioners need not prove personal loss, only an ongoing or imminent threat of harm. Under Sections 87, 88 and 89 of EMCA, waste disposal sites must be licenced by NEMA, yet no licence or EIA existed for this site, making its continued operation an unlicenced facility and a criminal offence, in violation of Article 42. The court distinguished the Tanzanian case of Festo Balegele, which had ordered immediate closure, and instead applied the graduated approach in New Jersey v City of New York and the Indian Green Tribunal's Tapesh Bhardwaj, since the site was the only dumpsite in Naivasha. It ordered immediate collection of plastic litter, a licence application within 14 days, NEMA assessment with a thorough EIA and a decision within 45 days, and closure plus restoration within 90 days if no application is made. The judgment was to be served on NEMA, the Cabinet Secretary for Environment and the Council of Governors. Costs were awarded to the petitioners, payable by the County Government of Nakuru.

Key legal issues

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01

Scope and enforceability of the right to a clean and healthy environment under Article 42

Holding

Article 42 protects the right to a clean and healthy environment and Article 70 permits any person to sue for its enforcement without proving loss or injury

Reasoning

The court read Articles 42 and 70 together and held that Article 70(3) expressly removes the need to demonstrate loss or injury. It was therefore sufficient for the petitioners to show an ongoing or imminent threat of harm to the environment; they did not have to prove personal harm or that the dumpsite directly injured them.

p. 6
02

Legality of operating the dumpsite without a NEMA licence or EIA

Holding

The dumpsite is an unlicenced, illegal facility whose continued operation is a criminal offence under Section 87(5) of EMCA, and no EIA was ever done

Reasoning

Sections 87 and 88 of EMCA require a licence to operate a waste disposal site, and Section 89 required existing operators to apply for licences within six months of EMCA's commencement. The site was commissioned after February 2000, and no licence application or licence was produced. Further, no EIA was done before the site was used, contrary to EMCA's Environmental Assessment requirements.

p. 8
03

Violation of Article 42 by the respondent

Holding

The operation of the facility by the respondent and its successor violates the petitioners' and residents' right to a clean and healthy environment

Reasoning

The court undertook a site visit and found the dumpsite in a deplorable state: unfenced, littered with polythene, accessed by animals and scavengers, with risks of contamination of the aquifer and Lake Naivasha foreshadowed in the respondent's own landfill evaluation report. This amounted to a res ipsa loquitur situation; the dumpsite was clearly an environmental hazard.

p. 9
04

Appropriate remedy where the dumpsite is the only disposal facility

Holding

Rather than close the dumpsite immediately, the court granted graduated orders: licencing application within 14 days, NEMA determination within 45 days, immediate mitigation of plastic litter, and restoration if no application is made

Reasoning

Drawing on New Jersey v City of New York and the Indian Green Tribunal's approach in Tapesh Bhardwaj, the court held that immediate closure would not solve the problem since no alternative site exists. The court therefore fashioned orders compelling compliance with EMCA while safeguarding the petitioners' rights and reserving discretion to issue further orders.

p. 12
05

Responsibility for solid waste management

Holding

Refuse removal, refuse dumps and solid waste disposal are county government functions under Schedule 4 of the Constitution, previously a municipal council function under Section 160 of the Local Government Act

Reasoning

The court traced the mandate from Section 160 of the repealed Local Government Act to the County Government of Nakuru via Schedule 4, Part 2, paragraph (g), which assigns refuse removal, refuse dumps and solid waste disposal to county governments. The named Municipal Council of Naivasha admitted being in charge of the dumpsite, and its functions now fall to the County Government of Nakuru.

p. 7

Legal principles established

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  • A waste disposal site may only lawfully operate if licenced by NEMA under EMCA, and an unlicenced dumpsite is illegal and its operation a criminal offence
  • An applicant enforcing the right to a clean and healthy environment need not demonstrate personal loss or injury; it suffices to show an ongoing or imminent threat of harm to the environment
  • Where an environmental hazard exists but closure would create a wider public problem, the court may grant graduated remedial orders allowing time for compliance rather than immediate cessation

Court orders

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  1. 1.A declaration that the petitioners' rights under Article 42 of the Constitution have been violated by the operation of the unlicenced dumpsite
  2. 2.An order that the County Government of Nakuku immediately collect all plastic bags littering the area and, on a daily and continuous basis, put plastic bags aside for incineration or other destruction
  3. 3.An order that the County Government of Nakuru, if it intends to continue using the site as a dump, apply for the requisite licence from NEMA under Sections 87 and 88 of EMCA within 14 days
  4. 4.A direction that NEMA assess any such application, ensure a thorough Environmental Impact Assessment (including consideration of alternative sites, fencing and annual auditing, and the option of a landfill rather than an open dumpsite), and issue appropriate directions within 45 days of receipt and report to the court
  5. 5.An order that if no licence application is made within 14 days, the County Government of Nakuru must stop all dumping on the site and restore it to its original state within 90 days
  6. 6.An order that the judgment be served upon NEMA to ensure compliance and report to the court
  7. 7.An order that the judgment be served upon the Cabinet Secretary of the Ministry of Environment and Natural Resources and the Council of Governors to consider policy, compliance with EMCA, cooperation and funding on solid waste management
  8. 8.Costs of the petition awarded to the petitioners, payable by the County Government of Nakuru

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 23(3)(b)
  • Constitution of Kenya, 2010Schedule 4, Part 2, paragraph (g)
  • Environmental Management and Coordination Act, 1999 (EMCA)Section 3(3)(a)-(e)
  • Environmental Management and Coordination Act, 1999 (EMCA)Sections 87, 88, 89; Part VI
  • Environment and Land Court Act, No. 19 of 2011Section 13(7)(a)
  • Local Government Act, Cap 265 (repealed)Section 160
  • Penal CodeSections 175, 191, 192

Cases cited (4)

  • Festo Balenge (Balegele) & 794 Others vs Dar-es-Salaam City Council
    High Court of Tanzania at Dar es Salaam, Misc. Civil Cause No. 90 of 1991
  • New Jersey vs City of New York
    283 US 473 (1931)
  • Almitra H. Patel vs Union of India
    (1998) 2 SCC 416
  • Tapesh Bhardwaj vs UP State Pollution Control Board & Others
    Application No. 596 of 2016
Jurisdiction invoked
Article 42 and Article 70 of the Constitution of Kenya, 2010, as read with Section 13(7)(a) of the Environment and Land Court Act, No. 19 of 2011 and Section 3(3)(a)-(e) of the Environmental Management and Coordination Act, 1999

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha (Petition 50 of 2012) [2017] KEELC 2781 (KLR)", Case Analysis (2017). Petition No 50 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2781/eng@2017-05-31

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