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ELCPartially AllowedPetition dated 16th January, 2018 (Notice of Motion)· [2018] KEELC 1806 (KLR)

County Government of Kitui v Sonata Kenya Limited & 2 others [2018] KEELC 1806 (KLR)

Environment and Land Court
28 September 2018
OAO.A. Angote
4,822 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear environmental rights cases directly and ordered asbestos removed from Kitui land within 15 days.

What this practically means

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Executive summary

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The Petitioner, a county government, moved the Environment and Land Court by Notice of Motion dated 16th January 2018 seeking declarations that the dumping of hazardous asbestos at Nzambani/Maluma/690 in Maluma Location, Kitui County violated Article 42 of the Constitution, together with mandatory, prohibitory and environmental restoration orders, revocation of the Environmental Impact Assessment licence, and refund of removal costs. The 1st Respondent held an EIA licence issued by the 3rd Respondent (NEMA) in February 2017 for an asbestos landfill; the Petitioner excavated the asbestos and stored it at Kitui Stadium. All Respondents contended that challenges to the licence lay before the National Environment Tribunal under Section 129 EMCA, that proper procedures were followed, and that the Petitioner itself was the polluter. The court first held that it, and not the Tribunal, had jurisdiction because the petition sought redress under Articles 42, 69 and 70 of the Constitution. It then found that a commercial asbestos disposal site required a full EIA Study Report under Section 58(2) EMCA, that there was no evidence of compliance with Section 59(1) publication requirements or Regulation 22 public hearings, and that public participation was lacking, breaching domestic law, Article 69(1)(d) and Principle 10 of the Rio Declaration. Applying the precautionary and prevention principles and relying on the Water Resources Authority's warning about the Thua River, the court partially allowed the application, issuing a mandatory injunction to relocate the asbestos within fifteen days at the 1st Respondent's cost, a prohibitory injunction against further hazardous waste deposit on the suit land pending hearing, and awarded the Petitioner the costs of the application.

Key legal issues

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01

Jurisdiction - National Environment Tribunal vs Environment and Land Court

Holding

The ELC has jurisdiction over the constitutional petition; the NET's appellate jurisdiction under Section 129 EMCA does not preclude constitutional redress under Articles 42, 69 and 70.

Reasoning

The court distinguished Section 129 EMCA appeals to the NET from the constitutional petition alleging violation of the Article 42 right. Relying on Article 162(2)(b), Section 13(1) and 13(3) of the ELC Act and Article 70, it held the reliefs sought are those under Article 70, hence this court has the requisite constitutional and statutory jurisdiction, the NET's jurisdiction being limited.

p. 4
02

Procedural legality of the EIA licence and public participation

Holding

The licence was issued unlawfully: a Project Report was used where a full Study Report was mandated, Section 59(1) publication was not done, and public participation was deficient, breaching Section 58 and 59 EMCA and Article 69(1)(d) of the Constitution.

Reasoning

The second schedule of EMCA as amended requires hazardous waste and commercial asbestos disposal projects to undergo a full EIA Study. There was no evidence of gazettement, newspaper or radio publication calling for submissions, nor compliance with Regulation 22 of the EIA and Audit Regulations, 2003. The questionnaires annexed were illegible and did not identify interviewees, and Principle 10 of the Rio Declaration was also breached.

p. 5
03

Water catchment risk and precautionary principle

Holding

On the Water Resources Authority's report that asbestos could pollute the Thua River, and applying the precautionary and prevention principles, conservatory orders were warranted despite claimed lack of scientific certainty.

Reasoning

The Water Resources Authority had warned that contact with groundwater and surface water would pollute the Thua River, the local community's water source. The Respondents produced no document rebutting that observation. Under Principle 15 of the Rio Declaration and domestic law, lack of full scientific certainty cannot postpone cost-effective measures, justifying interim conservatory orders.

p. 6

Legal principles established

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  • The Environment and Land Court, not the National Environment Tribunal, has jurisdiction to hear and determine allegations of denial, violation, infringement or threat to the right to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.
  • Where the procedures for the protection of the environment, including public participation, are not followed, an assumption may be drawn that the right to a clean and healthy environment is under threat.
  • A commercial asbestos disposal site requires a full Environmental Impact Assessment Study Report under Section 58(2) of EMCA, followed by publication and call for submissions under Section 59(1), not a mere Project Report.
  • In environmental disputes, courts should be guided by the precautionary and prevention principles; lack of full scientific certainty does not justify declining interim conservatory orders.

Court orders

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  1. 1.A mandatory injunction compelling the 1st Respondent to identify and relocate the asbestos deposited on the suit land to a different and suitable site within fifteen (15) days, for disposal in accordance with the Environmental Management and Coordination Act, pending the hearing and determination of the Petition
  2. 2.A prohibitory injunction prohibiting the Respondents from depositing any hazardous waste on parcel of land known as Nzambani/Maluma/690 pending the hearing and determination of the Petition
  3. 3.The Respondents to pay the Petitioner the costs of the Application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(5), 23(3)(b), 42, 69(1)(d), 70, 162(2)(b)
  • Environment and Land Court Act, No. 19 of 2011Sections 13(1), 13(3), 13(7)(a)
  • Environmental Management and Co-ordination Act, 1999 (EMCA)Sections 58, 59(1), 129(1)
  • Environmental Management and Co-ordination Act (Waste Management) Regulations, 2006Fourth Schedule, Item 136
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulation 22
  • Legal Notice No. 150 of 16th June, 2016 (amendment to EMCA second schedule)
  • Rio Declaration on Environment and Development (1992)Principles 10 and 15

Cases cited (1)

  • Ken Kasinga vs. Daniel Kiplagat Kirui & 5 others
    (2015) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(1) and 13(3) of the Environment and Land Court Act; Articles 42, 69 and 70 of the Constitution

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, "County Government of Kitui v Sonata Kenya Limited & 2 others [2018] KEELC 1806 (KLR)", Case Analysis (2018). Petition dated 16th January, 2018 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1806/eng@2018-09-28

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