Rose Juma Nyanjom & 3 others v County Government of Kisumu & 2 others [2018] KEELC 4210 (KLR)
The bottom line
#Kisumu's Environment and Land Court refused to stop the Kachok waste-to-quarry project, finding it was lawful quarry rehabilitation backed by a NEMA licence.
What this practically means
#Executive summary
#Key legal issues
#Whether conservatory orders should issue pending the petition
No reasonable basis for conservatory orders was established; the Petitioners misunderstood the project and the regulatory groundwork was in place.
The court found from the documentary evidence (NEMA licence, ESIA report, notification of award) that the project was rehabilitation of the Mamboleo quarry using inert waste, not relocation of raw Kachok waste. The NEMA licence was issued on 30th January 2018, a day after filing, curing the licensing objection. Reports by KAA, WARMA and a multi-agency audit committee addressed safety concerns, and NEMA remains available to enforce licence conditions.
Nature of the project subject matter of the petition
The project is the rehabilitation of Kisumu Concrete Quarry using inert waste from Kachok Dumpsite, not wholesale relocation of waste.
The court examined the headings of the NEMA licence dated 30th January 2018, the ESIA project report dated 1st December 2017, the notification of award dated 17th November 2017 and the Greenchem consultancy report, all of which describe a landfill/rehabilitation project. The Petitioners' fear that Kachok waste would without exception be moved to the quarry was misplaced.
Whether the 2nd Respondent was properly sued
Her objection to her inclusion was rejected because the pleadings expressly seek orders against her.
The Petitioners' pleadings state she is sued as City Manager and not personally; prayer C of the petition and prayers 2 and 3 of the notice of motion seek orders against her among others. The Respondents' submission that no orders were sought against her was contrary to the pleadings.
Whether the 4th Petitioner was properly a party
His name was struck out after he told the court he never instructed counsel or authorised the 1st Petitioner's affidavit.
On 19th February 2018 the 4th Petitioner appeared in person and protested that he had neither instructed counsel for the Petitioners nor authorised the 1st Petitioner to swear the supporting affidavit on his behalf. After hearing all counsel, the court directed that his name be struck out from the petition.
Legal principles established
#- A complaint based on absence of a statutory licence fails if the licence is subsequently issued before determination, rendering the complaint moot.
- A party sued in an official capacity cannot object to being joined merely because orders are capable of being directed at the body the officer serves, where the pleadings expressly seek orders against her.
Court orders
#- 1.Prayer 4 of the notice of motion dated 29th January 2018 allowed - leave for the Petitioners to advertise the petition in a daily newspaper of national circulation to enable affected and/or interested parties to apply to be enjoined
- 2.Costs in the cause
- 3.Name of the 4th Petitioner, Ibrahim Oloo Onditi, struck out from the petition (direction given at hearing on 19th February 2018)
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution of Kenya 2010 (environmental rights petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Juma Nyanjom & 3 others v County Government of Kisumu & 2 others [2018] KEELC 4210 (KLR)", Case Analysis (2018). Not stated in the judgment (Petition filed with notice of motion dated 29th January 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4210/eng@2018-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.