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ELCOtherNot stated in the judgment (Petition filed with notice of motion dated 29th January 2018)· [2018] KEELC 4210 (KLR)

Rose Juma Nyanjom & 3 others v County Government of Kisumu & 2 others [2018] KEELC 4210 (KLR)

Environment and Land Court
7 March 2018
3,110 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Four petitioners moved the Environment and Land Court at Kisumu by notice of motion dated 29th January 2018 seeking conservatory orders restraining the County Government of Kisumu, its City Manager and Kisumu Concrete Products Ltd from transferring solid waste from Kachok dumpsite to the Kisumu Concrete abandoned quarry at Mamboleo, and leave to advertise the petition for joinder of affected parties. They alleged the tender worth Ksh.99,250,000 was awarded without Environmental Impact Assessment, NEMA licensing, aeronautical study or public participation, and would contaminate groundwater, the Kibos river and Lake Victoria, and endanger aircraft. The Respondents countered that the project was rehabilitation of the abandoned quarry using inert waste, not relocation of raw waste; that NEMA licences, an ESIA report, KAA and WARMA inputs and a multi-agency audit mechanism were in place; and that a NEMA licence was issued on 30th January 2018. The 4th Petitioner appeared in person and disowned the pleadings, and his name was struck out. The court found the petitioners had misapprehended the nature of the works; that the licensing complaint was cured by the subsequent licence; that safety and auditing measures were adequately explained; that the claim of denied access to information was unevidenced; and that the City Manager was properly joined. The court declined conservatory orders and allowed only the prayer for advertisement of the petition, with costs in the cause.

Key legal issues

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01

Whether conservatory orders should issue pending the petition

Holding

No reasonable basis for conservatory orders was established; the Petitioners misunderstood the project and the regulatory groundwork was in place.

Reasoning

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.

p. 7
02

Nature of the project subject matter of the petition

Holding

The project is the rehabilitation of Kisumu Concrete Quarry using inert waste from Kachok Dumpsite, not wholesale relocation of waste.

Reasoning

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.

p. 6
03

Whether the 2nd Respondent was properly sued

Holding

Her objection to her inclusion was rejected because the pleadings expressly seek orders against her.

Reasoning

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.

p. 7
04

Whether the 4th Petitioner was properly a party

Holding

His name was struck out after he told the court he never instructed counsel or authorised the 1st Petitioner's affidavit.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Costs in the cause
  3. 3.Name of the 4th Petitioner, Ibrahim Oloo Onditi, struck out from the petition (direction given at hearing on 19th February 2018)

Authorities

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Legislation

  • Environmental Management and Co-ordination ActGeneral (as read with Waste Management Regulations)
  • Civil Aviation Act
  • Kenya Civil Aviation Aerodromes Regulations2013
  • Environmental Management and Coordination (Waste Management) Regulations
  • Constitution of KenyaArticles 42, 69, 70
Jurisdiction invoked
Articles 42, 69 and 70 of the Constitution of Kenya 2010 (environmental rights petition)

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, "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.