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ELCPartially AllowedPetition dated 17th February, 2017 (Machakos)· [2017] KEELC 2891 (KLR)

Safaricom Staff Pension Scheme Registered Trustees v Erdemann Property Limited & 5 others [2017] KEELC 2891 (KLR)

Environment and Land Court of Kenya
12 May 2017
6,881 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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Kenya's Environment and Land Court quashed approvals for a sewer line built without consulting affected landowners, reaffirming that property rights include access.

What this practically means

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Executive summary

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Safaricom Staff Pension Scheme Registered Trustees, developer of the Crystal Rivers mixed-use project on L.R. No. 337/5183 (Original No. 337/974) in Mavoko, petitioned against approvals granted to the 1st Respondent, developer of the Great Wall Gardens Estate, to construct a sub-trunk sewer line along Quarry Road and Old Mombasa Road. Supported by two Interested Parties owning adjoining developments, the Petitioner complained that the raised sewer embankment would block access to its property, impede drainage and cause flooding, and that all approvals were granted without public participation or fair administrative process, breaching Articles 10, 40, 42 and 47 of the Constitution. It sought declarations of unconstitutionality, certiorari to quash the approvals, a permanent injunction against the 1st Respondent, and mandamus compelling reconsideration of the designs with full public participation. The Respondents maintained that the works were properly approved by all lead agencies on road reserves, that the elevation was necessitated by flood-prone topography and the planned raising of Mombasa Road, and that some consultation occurred. The court found the Petitioner had locus standi, since it owned the suit land and, in any event, public interest and environmental claims require only sufficient interest and no proof of loss under Article 70(3). On the merits, the court found no public participation at all before the approvals: the E.I.A Report interviewed five unrelated persons and ignored the adjoining landowners; the 2nd Respondent approved works two days after application without critical evaluation; and consultation only occurred after construction began. Holding that property rights include access, the court declared the approvals illegal and unconstitutional, quashed them, permanently restrained the 1st Respondent from constructing the sewer line on the strength of those approvals, and ordered mandamus requiring reconsideration with full public participation, with costs to the Petitioner against the 1st Respondent.

Key legal issues

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01

Locus standi of the Petitioner and Interested Parties

Holding

The Petitioner had locus standi as registered owner of L.R. No. 337/974 and developer of the Crystal Rivers project; standing in public interest matters requires only sufficient interest, and under Article 70(3) no loss or injury need be demonstrated.

Reasoning

The court found the Petitioner incorporated under the Trustees (Perpetual Succession) Act was the same entity registered as proprietor of L.R. No. 337/974 since 2013 and was developing it. It was directly aggrieved by the 13-kilometre sewer line along the two roads abutting its land. Public interest litigation requires only demonstration of sufficient interest, and Article 70(3) removes any requirement to prove loss or injury for environmental claims.

p. 8
02

Whether the approvals for the sewer line were granted without public participation and in breach of fair administrative action

Holding

Yes. The 2nd, 3rd and 4th Respondents approved the sewer line without any public participation and without hearing the Petitioner and Interested Parties, breaching Articles 10, 40 and 47 and Section 4(3) of the Fair Administrative Action Act, rendering the approvals illegal and unconstitutional.

Reasoning

The E.I.A Report interviewed only five unrelated individuals, none of them the adjoining landowners directly affected; the adjoining owners had a legitimate expectation that the roads serving their properties would remain accessible or that they would be consulted of any changes. The 2nd Respondent approved the works two days after application, with no evidence of critical evaluation of the access and flooding impacts. The Respondents' own affidavits showed consultation only occurred after construction began, confirming there was no participation before the approvals.

p. 11
03

Whether the right of access to property was infringed

Holding

The sewer line as approved, raised above ground and cutting across the main access, would block or impede the Petitioner's and Interested Parties' access to their properties, infringing Article 40 rights.

Reasoning

Property rights under Article 40(1) encompass access, not merely use and occupation. The E.I.A Report did not address accessibility of adjoining parcels or the impact of raising the sewer line on underground sewer lines of neighbours. The design would cause flooding and limit access; property without access is of little value, and the Respondents knew their actions would affect access rights.

p. 12

Legal principles established

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  • The right to own property under Article 40(1) extends beyond use and occupation to include access to the property.
  • Where an administrative action is likely to adversely affect a person's rights, the administrator must give prior adequate notice and an opportunity to be heard before the decision is made.
  • A public interest litigant need only demonstrate sufficient interest; and in environmental claims under Article 70 no loss or injury need be shown to establish standing.

Court orders

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  1. 1.A declaration that the approvals granted to the 1st Respondent by the 2nd, 3rd and 4th Respondents with respect to the construction of a sewer line along Quarry Road and Old Mombasa Road for the Great Wall Gardens Project was illegal, unconstitutional and an infringement of the Petitioner's rights under Articles 40 and 47(1) of the Constitution.
  2. 2.An order of judicial review of certiorari quashing the decisions issued by the 2nd to 4th Respondents granting approval to the 1st Respondent to proceed with the construction of the sewer line along Quarry Road and Old Mombasa Road.
  3. 3.A permanent injunction restraining the 1st Respondent from proceeding with the construction of the sewer line along Quarry Road and Old Mombasa Road on the basis of the quashed approvals.
  4. 4.An order of mandamus directed at the 2nd, 3rd and 4th Respondents to reconsider the submitted sewer line designs in line with applicable law and after full public participation by the Petitioner and all other affected stakeholders.
  5. 5.The 1st Respondent to pay the Petitioner's costs of the Petition.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22(1), 258(1) and (2), 40, 40(1), 42, 47, 47(1), 50(1)(e), 69, 70(1), 70(3)
  • Fair Administrative Action ActSection 4(3)
  • Kenya Roads ActSections 22, 47, 49
  • Water Actnot specified
  • Urban Areas and Cities Actnot specified
  • County Governments Actnot specified
  • Trustees (Perpetual Succession) Actnot specified

Cases cited (1)

  • President of the Republic of South Africa and others vs. South African Rugby Football Union and others
    (CCT 16/98) 2000(1) SA 1
Jurisdiction invoked
Articles 22(1), 70 and 258(1) and (2) of the Constitution of Kenya, 2010 (constitutional petition enforcing fundamental rights, including right to clean and healthy environment, before the Environment and Land Court)

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, "Safaricom Staff Pension Scheme Registered Trustees v Erdemann Property Limited & 5 others [2017] KEELC 2891 (KLR)", Case Analysis (2017). Petition dated 17th February, 2017 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2891/eng@2017-05-12

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