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ELCPartially AllowedE.L.C. Petition No. 7 of 2017 (Formerly HCCC Pet 24 of 2017)· [2018] KEELC 1964 (KLR)

Castle Rock Gardens Management Limited v Attorney General & 4 others [2018] KEELC 1964 (KLR)

Environment and Land Court
12 September 2018
KBK. BOR
3,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Nairobi's Environment and Land Court ordered government agencies to clean up polluted Kirichwa River, confirming you can enforce environmental rights without proving personal loss.

What this practically means

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Executive summary

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The Petitioner, manager of Castle Rock Apartments bordering Kirichwa River, petitioned under Articles 42, 69 and 70 of the Constitution and EMCA, seeking a declaration that it is entitled to a clean and healthy environment, orders of mandamus compelling the Respondents to survey and clean up the river, a prohibitory injunction against permitting pollution, compensation and costs. The Respondents opposed: the County Government and Nairobi Water detailed clean-up measures and blamed residents, including the Petitioner, for walling off the river and discharging sewage; the Attorney General and Cabinet Secretary argued that waste management is a devolved county function; NEMA contended that the County and the water company bear the relevant mandates. The court conducted a site visit and observed sewage pipes discharging into the river, broken sewer lines and blocked access caused by walls. It held that the pollution of the river was undisputed and that the Respondents have a duty to eliminate pollution into Kirichwa River. It found that the City Council and the County Government failed to observe the 10-metre wayleave requirement under the Physical Planning Act when approving subdivisions, leading to developments encroaching on the riparian reserve, which is public land under Article 62. The court granted structural relief rather than compensation: it directed that sewer lines be properly laid with no raw sewage released into the river, that a survey of the entire river be undertaken and the riparian reserve restored, and that the Respondents clean up the river and file a compliance report within six months, with periodic review. Costs were awarded to the Petitioner against the 3rd and 5th Respondents.

Key legal issues

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01

Whether the Respondents are in breach of the Petitioner's constitutional right to a clean and healthy environment under Articles 42, 69 and 70

Holding

The court found that River Kirichwa is polluted with sewage discharged at various points and that the Respondents have a duty to eliminate all pollution into the river, notwithstanding the measures they had already undertaken.

Reasoning

The court relied on a site visit on 29/6/2018 where it observed pipes draining sewage into the river, a foul smell and broken sewer pipes. Article 42 guarantees the right to a clean and healthy environment and the right to seek redress for its violation without proof of loss. Article 69 enjoins the State to eliminate processes likely to endanger the environment. The Respondents did not dispute the pollution; their asserted remedial efforts did not discharge their constitutional and statutory duties.

p. 4
02

Whether developments abutting Kirichwa River, including the Petitioner's, unlawfully encroach on the riparian reserve

Holding

The County Government failed to observe the statutory condition requiring wayleaves or reserves of not less than 10 metres along water courses when approving subdivision schemes, resulting in walls and developments along the riparian reserve.

Reasoning

Under Section 15 of the Physical Planning Act, subdivision schemes must observe reserves of not less than 10 metres on each bank of a river. Regulation 111 of the Survey Regulations 1994 sets a river reservation of not less than 30 metres. Rivers are public land under Article 62. Section 42 of EMCA prohibits erecting structures in or under a river without NEMA approval. The court directed a survey and restoration of the riparian reserve.

p. 4
03

Whether the 1st, 2nd and 4th Respondents were wrongly joined

Holding

The court did not uphold the wrong-joinder objection; it instead found that all Respondents have a role to play in protection of the environment and issued directions against the Respondents collectively, with specific obligations on the 3rd and 5th Respondents and costs against the 3rd and 5th.

Reasoning

The 1st and 2nd Respondents argued that waste management is a devolved county function, and NEMA argued that regulation fell to the County and Nairobi Water. The court acknowledged the division of mandates but held that the Respondents have a role in environmental protection and framed directions requiring them collectively to survey, clean up and report on the river.

p. 4

Legal principles established

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  • A petitioner alleging violation of the Article 42 right to a clean and healthy environment need not demonstrate loss or injury; the State is enjoined under Article 69 to eliminate processes likely to endanger the environment
  • Rivers and land between high and low water marks are public land and development on the riparian reserve requires approval, with statutory reservations for wayleaves along water courses
  • Local authorities that approve subdivision schemes must observe the condition of wayleaves or reserves of not less than 10 metres along rivers; failure to do so permits enforcement notices requiring restoration of the riparian reserve

Court orders

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  1. 1.The Respondents have a duty to eliminate all pollution into Kirichwa River
  2. 2.The 3rd and 5th Respondents are directed to ensure that sewer lines are properly laid out and put in place on the land adjoining the river and that no raw sewage and waste is released into Kirichwa River
  3. 3.The Respondents are directed to undertake a survey of the entire Kirichwa River from its source to determine the riparian reserve and restore this to the state it was in before the developments were carried out along River Kirichwa
  4. 4.The 3rd Respondent is directed to perform its obligations under the law and ensure that the riparian reserve on either side of Kirichwa River is left free and uninterrupted so that sewer lines and manholes can be laid out and maintained
  5. 5.The Respondents are directed to undertake the clean-up of Kirichwa River and file a report in court to confirm that the river is free of pollution within 6 months of the date of the judgment; the court will review progress periodically until the river is clean
  6. 6.The Petitioner is awarded the costs of the petition, to be borne by the 3rd and 5th Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 42, 62, 69, 70, 165, 258, 259 and Schedule 4 Part II
  • Environmental Management and Coordination Act No. 8 of 1999Sections 9, 42, 87, 108, 111
  • Physical Planning ActSections 15, 29, 30, 38
  • Survey Regulations 1994Regulation 111
Jurisdiction invoked
Articles 22(1) and (2), 23, 42, 69, 70, 165 and 258 of the Constitution; Article 70 read with the Environmental Management and Coordination Act (EMCA)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Castle Rock Gardens Management Limited v Attorney General & 4 others [2018] KEELC 1964 (KLR)", Case Analysis (2018). E.L.C. Petition No. 7 of 2017 (Formerly HCCC Pet 24 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1964/eng@2018-09-12

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