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ELCDismissedPetition dated 13th February, 2012· [2018] KEELC 2247 (KLR)

Francis Ngigi Macharia & 67 others v National Environment Management Authority [2018] KEELC 2247 (KLR)

Environment and Land Court
31 July 2018
OAO.A. Angote
1,090 words in judgment
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The bottom line

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Kenya's Environment and Land Court upheld a sand harvesting ban because the transporters had no harvesting licences or EIA approvals.

What this practically means

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Executive summary

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The 67 Petitioners, describing themselves as licensed sand transporters in Machakos County, petitioned for a declaration that a ban on sand harvesting and transportation in the County was unconstitutional and an infringement of their right to acquire property, and sought damages and costs. They contended the ban was issued through a newspaper caption rather than a gazette notice and on political rather than environmental grounds. The Respondent, through its District Environment Officer, explained that a meeting convened by the Regional Commissioner led to a temporary suspension of sand harvesting in Yatta and Masinga to allow registration of harvesters and transporters, most harvesting sites being illegal and lacking Environmental Impact Assessment approvals. The court found that the Petitioners' three 'Form 2' approvals authorised only the transportation of sand from NEMA-licensed sites, not harvesting, and that no document supported their claim of harvesting licences. Applying Section 58 of EMCA, the court held that sand harvesting requires a full EIA Study notwithstanding any approval or licence, and none was produced. Under Article 69 of the Constitution and Section 30 of EMCA, NEMA is mandated to ensure natural resources such as sand are conserved and sustainably exploited, which justified the ban on illegal sites. The Petition dated 13th February 2012 was accordingly dismissed with costs.

Key legal issues

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01

Whether the Petitioners held licences to harvest sand

Holding

The Petitioners produced no evidence of licences to harvest sand; the three 'Form 2' approvals showed only authorisation to transport sand from NEMA-licensed sites

Reasoning

The Petitioners annexed only three Form 2 transport approvals issued in 2011 to named persons. Those approvals permitted transportation of sand from NEMA-licensed sites subject to the National Sand Harvesting Guidelines. No document authorised harvesting. The claim of licensure to harvest was therefore unsupported.

p. 2
02

Whether sand harvesting required an Environmental Impact Assessment notwithstanding the Petitioners' approvals

Holding

Yes. Sand harvesting is a project requiring a full EIA Study before a licence can issue, and no approved EIA report was produced

Reasoning

Section 58 of EMCA requires a proponent of a Schedule 2 project to undertake a full EIA Study notwithstanding any approval, permit or licence. Sand harvesting occurs within rivers and requires such a study. Without approved EIA reports, the Petitioners could not claim their harvesting was on licensed sites.

p. 2
03

Whether the ban on sand harvesting was lawful

Holding

Yes. The County/District Environment Committees were mandated under Section 30 of EMCA to manage the environment and control exploitation of natural resources, and the ban on illegal sand harvesting was lawfully issued

Reasoning

Section 30 of EMCA mandates the County Environment Committee to be responsible for proper management of the environment, including monitoring and controlling exploitation of natural resources to ensure sustainability. Most harvesting in Yatta and Masinga occurred at illegal sites without EIAs, justifying the temporary suspension.

p. 2

Legal principles established

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  • It is the mandate of NEMA, pursuant to Article 69 of the Constitution and Section 30 of EMCA, to ensure that natural resources including sand are conserved and sustainably exploited
  • A proponent of a project specified in Schedule 2 of EMCA must undertake a full Environmental Impact Assessment before being issued with a licence, notwithstanding any approval, permit or licence granted under the Act

Court orders

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  1. 1.The Petition dated 13th February, 2012 is dismissed
  2. 2.The Petitioners to pay the Respondent's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 69
  • Environmental Management and Co-ordination Act (EMCA)Section 30
  • Environmental Management and Co-ordination Act (EMCA)Section 58 and Schedule 2
Jurisdiction invoked
Article 69 of the Constitution of Kenya, 2010 (environmental jurisdiction over conservation and sustainable exploitation of natural resources)

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, "Francis Ngigi Macharia & 67 others v National Environment Management Authority [2018] KEELC 2247 (KLR)", Case Analysis (2018). Petition dated 13th February, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2247/eng@2018-07-31

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