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ELCPartially AllowedEnvironment and Land Petition No. 1 of 2018· [2018] KEELC 3780 (KLR)

Mohamed Hussein Haji v Issa Kuno & 4 others [2018] KEELC 3780 (KLR)

Environment and Land Court of Kenya
21 March 2018
3,385 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Garissa court halted gypsum mining that skipped public participation and community land consent, confirming anyone can sue to protect Kenya's environment.

What this practically means

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Executive summary

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This was a constitutional petition in the Environment and Land Court at Garissa brought by Mohamed Hussein Haji against Issa Kuno, Afro Pride, NEMA, the Director of Mines and the Attorney General. The Petitioner sought declarations, judicial review orders (certiorari, prohibition, mandamus), a permanent injunction, restoration of degraded land, damages and costs arising from gypsum mining activities in the Ali Jibril area of Wabari Ward, Garissa County. He alleged non-compliance with the Constitution, the Mining Act and the Environmental Management and Co-ordination Act, including absence of public participation, environmental impact assessment and use of communal land, and breach of the special conditions of a Special Prospecting and Exploration Grant issued to the 2nd Respondent on 24/5/2016. The 1st and 2nd Respondents opposed the petition and sought to set aside a conservatory order issued on 16/1/2018, contending the Petitioner was not a resident of the area and that they held licences and had invested over Kshs. 20 million. The court held the Petitioner had standing to sue in public interest under Article 22. The suit land was unregistered community land held in trust by the County Government of Garissa under the Community Land Act; no consent was obtained, no public participation was conducted, and the register of licensed mining entities did not include the Respondents. National values under Article 10 were not observed, rendering the mining illegal. Applying the precautionary principle, the court found infringement of rights proved on a balance of probabilities. The petition partially succeeded: declarations, certiorari and mandamus were granted, but prohibition, injunction, restoration, damages and supervisory orders were not granted, and each party was ordered to bear its own costs.

Key legal issues

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01

Standing in public interest environmental litigation

Holding

The Petitioner had standing to bring the petition in public interest notwithstanding that he was not a resident of the affected area

Reasoning

Article 22(2) permits any person to institute proceedings claiming a right has been infringed, including a person acting in the public interest or in the interest of a group or class of persons. The court held that residency or community membership was not a precondition, and the Petitioner was entitled to invoke the jurisdiction in public interest on behalf of the affected residents of Jibril area.

p. 4
02

Compliance with constitutional and statutory requirements for mining on community land

Holding

The 1st and 2nd Respondents did not comply with the constitutional and statutory regulatory requirements before commencing mining, rendering the activities illegal and unlawful

Reasoning

The land was unregistered community land held in trust by the County Government of Garissa under the Community Land Act. No consent was sought or obtained from the County Government, no public participation was conducted, and the register of licensed mining entities did not include the 1st and 2nd Respondents. National values and principles of governance under Article 10, including public participation and sustainable development, were not observed, so the mining activities were illegal and infringed the Petitioner's and community's rights.

p. 5
03

Application to set aside the conservatory order

Holding

The 1st and 2nd Respondents' application to set aside the conservatory order was not successful; the petition succeeded on proof of infringement

Reasoning

The court found on a balance of probabilities that the 1st and 2nd Respondents had infringed or were likely to infringe rights, and proceeded to issue declaratory and judicial review orders rather than setting aside the conservatory orders. The Respondents had not met the threshold for setting aside or varying the orders obtained by the Petitioner.

p. 5

Legal principles established

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  • A petitioner need not be a resident or member of the community to institute a public interest constitutional petition
  • Unregistered community land is held in trust by the County Government and transactions require consent and compliance with the Community Land Act
  • Development that threatens life is not suitable development and must be halted; the precautionary principle applies where there are threats of serious or irreversible environmental damage

Court orders

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  1. 1.A declaration that the 1st and 2nd Respondents have not complied with all the constitutional and statutory regulatory requirements before mining activities commenced in Jibril area within Wabari Ward in Garissa County and that the activities being undertaken in the abovementioned area has infringed and/or are likely to infringe on the Petitioner's rights and those of the surrounding community
  2. 2.An Order of certiorari to bring into the Court for purposes of quashing any decision by the 3rd and 5th Respondents to issue the 1st and 2nd Respondents with any permit and/or licence
  3. 3.An order of mandamus compelling the 3rd to 5th Respondents to ensure that all the constitutional and statutory regulatory requirements are met by the 1st and 2nd Respondents before any mining exploration or prospecting activities are conducted by the 1st and 2nd Respondents
  4. 4.Each party to bear his own costs of the petition
Jurisdiction invoked
Articles 22, 23 and 162(2)(b) of the Constitution of Kenya, 2010

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, "Mohamed Hussein Haji v Issa Kuno & 4 others [2018] KEELC 3780 (KLR)", Case Analysis (2018). Environment and Land Petition No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3780/eng@2018-03-21

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