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ELCAllowedNot stated in judgment (Notice of Motion dated 8th November 2016)· [2017] KEELC 3550 (KLR)

Abdalla & 2 others v County Government of Kilifi & 2 others (Civil Case 283 of 2016) [2017] KEELC 3550 (KLR)

High Court of Kenya (Environment and Land Division), Malindi
6 March 2017
JOJ. OLOLA
2,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court stopped Kilifi County and NEMA from dumping waste on private Malindi land, confirming anyone can sue to protect the environment.

What this practically means

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Executive summary

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The Plaintiffs, holding a Certificate of Ownership for Plot No. 5143 Malindi (14.569 hectares) and Letters of Administration over the estate of Said Swaleh Bahmed (Deceased), moved the court by Notice of Motion dated 8th November 2016 under Articles 2, 10, 22, 40, 42 and 69 of the Constitution and Section 3 of EMCA, seeking an injunction to restrain the County Government of Kilifi and NEMA from dumping and incinerating solid waste on their land, sub-divisions 6071-6101 Malindi, situated on the way to Kivulini Beach Area. The application was unopposed; although served, none of the Defendants appeared at the hearing on 13th February 2017, and the court proceeded ex parte on the strength of an Affidavit of Service. Counsel submitted that the continuous dumping and incineration had rendered the land worthless, with toxic smoke and obnoxious smells endangering health, air and underground water aquifers. A Rapid Environmental Impact Assessment Report annexed by the plaintiffs described the site as a time bomb near the environmentally sensitive Indian Ocean, with domestic, industrial, office and hospital wastes being disposed of there. The court traced the common law restriction on private suits for public injury (Gouriet), and held that Section 3(4) of EMCA and Article 70(3) of the Constitution removed the locus standi hurdle. Applying Giella v Cassman Brown, Mrao and Nguruman, and invoking the prevention and precautionary principles, the court found a prima facie case established. It granted an injunction restraining the 1st and 2nd Respondents from dumping or incinerating waste on the suit land until hearing and determination of the suit, with costs to the Respondents.

Key legal issues

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01

Locus standi in environmental litigation

Holding

The plaintiffs need not demonstrate any particular personal interest in the land; EMCA Section 3(4) and Article 70(3) of the Constitution removed the common law locus standi requirement.

Reasoning

The court traced the common law restriction, under which private individuals could not sue to redress public injury without the Attorney General's permission, as expressed in Gouriet v Union of Post Office Workers. It held that Section 3(4) of EMCA and Article 70(3) of the Constitution removed that restriction, allowing actions notwithstanding absence of personal loss or injury. Waki J's remarks in Insurance Company of East Africa were cited approvingly.

p. 3
02

Whether the plaintiffs established a prima facie case for an interlocutory injunction

Holding

Yes. On the uncontroverted material, including a Rapid Environmental Impact Assessment Report, the plaintiffs showed a right violated or threatened with violation, justifying an injunction under Order 40 Rule 1 of the Civil Procedure Rules and the Giella v Cassman Brown principles.

Reasoning

The court applied the Giella v Cassman Brown test and Mrao Ltd's definition of a prima facie case. It noted the Certificate of Ownership for Plot No. 5143 and Letters of Administration demonstrating proprietary interest, and the environmental assessment report describing the dump site as a time bomb adjacent to the Indian Ocean. With no replying affidavits filed, the court was satisfied the plaintiffs' rights were violated or threatened, warranting an injunction until trial.

p. 6

Legal principles established

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  • Statutory provisions (Section 3(4) EMCA and Article 70(3) of the Constitution) eliminate the common law requirement that an environmental plaintiff demonstrate personal loss or injury to establish locus standi.
  • Environmental protection is best achieved by prevention, and the precautionary principle requires reasonable measures to prevent deleterious environmental consequences even where science cannot accurately predict impacts.

Court orders

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  1. 1.An order of injunction restraining the 1st and 2nd Respondents, their servants and/or agents from dumping or continuing to dump and/or incinerate solid and/or any other form of waste on the plaintiffs' land (Sub-division No. 6071-6101, Malindi) until hearing and determination of the suit
  2. 2.The costs of the application to be borne by the Respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 10, 22, 23, 40, 42, 69, 70(3); Part 2 of the Fourth Schedule
  • Environmental Management and Co-ordination ActSections 2(g), 3(1), 3(3), 3(4), 111
  • Judicature ActSection 3(1)
  • Penal CodeChapter XVII
  • Civil Procedure ActPart VI, Section 61
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (5)

  • Gouriet -vs- Union of Post Office Workers
    (1977) AC 435
  • Insurance Company of East Africa -vs- Attorney General & Others
    KLR (E&L) 1 406 at 420
  • Giella vs Casman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Nguruman Limited -vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Articles 2, 10, 22, 40, 42 and 69 of the Constitution; Section 3(3) of the Environmental Management and Co-ordination 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, "Abdalla & 2 others v County Government of Kilifi & 2 others (Civil Case 283 of 2016) [2017] KEELC 3550 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 8th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3550/eng@2017-03-06

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