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ELCPartially AllowedBungoma ELC Petition (filed 24th July 2019); leave granted in Bungoma ELC Miscellaneous Application No 8 of 2019· [2019] KEELC 486 (KLR)

Martin Wanyonyi C.E.O Centre for Human Rights Organization) & another v County Government of Bungoma & 2 others [2019] KEELC 486 (KLR)

Environment and Land Court
11 December 2019
BOBoaz N. Olao
5,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Bungoma's county government must license and assess its Lumoro dump site within 30 days, or close and restore it, for violating residents' environmental rights.

What this practically means

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Executive summary

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Two petitioners, acting in person with a fee waiver obtained in Bungoma ELC Miscellaneous Application No 8 of 2019, petitioned the Environment and Land Court at Bungoma seeking closure of the dump site at Lumoro village, an injunction against further dumping, compensation for a 15-year-old girl (CNB) hospitalized at Bungoma Referral Hospital TB Unit, removal of the County Secretary from office, and findings of violation of Articles 42, 69, 70 and 73 of the Constitution. The Respondents, through the replying affidavit of Chief Officer Moses Sichei Soet, contended that the petition fell short of the Anarita Karimi Njeru threshold, that NEMA had found the site viable and granted time to comply, that the land was duly purchased from its owners, and that closure would be against public interest. Boaz N. Olao J held that the Court lacked jurisdiction to remove the County Secretary, that power being vested in the Governor under Section 44(2)(c) of the County Government Act. Although the 'home-made' petition lacked particularity, the court sustained it, holding that procedural transgressions causing no prejudice should not defeat a claim. On the merits, the court found the dump site was operating without the EMCA licence required by Sections 87-89 and without the completed EIA and licensing conditions imposed by NEMA, constituting an infringement of the residents' Article 42 rights. The compensation claim for CNB failed for want of evidence of causation. The court declined immediate closure but ordered the 1st Respondent to apply for a licence and complete an EIA within 30 days, failing which it must stop using the site and restore it within 60 days, and to pay the Petitioners' costs.

Key legal issues

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01

Jurisdiction to remove the County Secretary from office

Holding

The Court has no jurisdiction; that power is vested in the Governor under Section 44(2)(c) of the County Government Act

Reasoning

The Court's jurisdiction is circumscribed by Section 13 of the Environment and Land Court Act and Section 150 of the Land Act, neither of which donates power to remove a County Secretary. Section 44(2)(c) of the County Government Act empowers the Governor to dismiss the County Secretary, so prayers IV and V could not be granted.

p. 2
02

Pleading standard for constitutional petitions (Anarita Karimi Njeru threshold)

Holding

The Petition lacked particularity but was sustained because the Respondents were not prejudiced and could glean the substance of the complaint

Reasoning

While a petition should set out the constitutional provisions infringed and the manner of infringement, the Anarita rule is not a hard rule mandating dismissal. Article 159(2)(d) and Article 22(3)(b) favour substantive justice over technicalities. The comprehensive replying affidavit showed the Respondents understood the allegations and suffered no prejudice.

p. 5
03

Violation of the right to a clean and healthy environment

Holding

Establishing and operating the unlicenced dump site at Lumoro village infringed Article 42 rights of the residents

Reasoning

The dumpsite was established without the licence required by Sections 87, 88 and 89 of EMCA and without the EIA and licensing conditions in NEMA's letter of 27th October 2015 being satisfied. Photographs showed it was a health hazard, and the Respondents showed no urgency in complying with the law.

p. 7
04

Compensation for CNB's illness

Holding

Claim dismissed for lack of evidence of causation

Reasoning

The medical card only showed she attended the TB Unit; there was no medical or scientific evidence linking her tuberculosis to the dumpsite or to water from Cornel Spring. A bare allegation was too remote to attach liability.

p. 5

Legal principles established

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  • A waste disposal site cannot be operated without a licence issued by NEMA under Section 87(3) of EMCA; operating an unlicenced site is an offence
  • Lack of particularity in a constitutional petition is not necessarily fatal where no prejudice is caused to the opposing party and the substance of the complaint is discernible
  • Establishing and operating a dump site in violation of EMCA infringes the constitutional right to a clean and healthy environment under Article 42

Court orders

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  1. 1.The prayer to remove the 3rd Respondent from office is declined
  2. 2.A finding that the establishment of a dump site at Lumoro village constitutes an infringement of the right to a clean and healthy environment under Article 42
  3. 3.The 1st Respondent shall within thirty (30) days apply for the relevant licence under Sections 87, 88 and 89 of EMCA
  4. 4.The 1st Respondent shall within thirty (30) days undertake an Environmental Impact Assessment (EIA) study and prepare a report to be submitted to EMCA as per Section 58 of EMCA
  5. 5.In default of orders (3) and (4), the 1st Respondent shall stop utilizing the dump site at Lumoro village and restore it to its original state within sixty (60) days
  6. 6.The 1st Respondent shall meet the Petitioners' costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 3, 22(3)(b), 42, 69, 70, 73, 159(2)(d), 165; Schedule Four
  • Urban Areas and Cities ActSections 9(3)(1), 11
  • Environment Management and Coordination Act (EMCA) 1999Sections 9, 58, 87, 88, 89
  • County Government ActSection 44(2)(c)
  • Environment and Land Court ActSection 13
  • Land ActSection 150
  • Environmental Management and Coordination Act (old Constitution) - Section 84(1) of the repealed ConstitutionSection 84(1)

Cases cited (7)

  • ANARITA KARIMI NJERU V R
    Criminal Application No 4 of 1979 [1979 eKLR] [1980 KLR 1271]
  • MUMO MATEMU V TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & OTHERS
    C.A Civil Appeal No 290 of 2012 [2013 eKLR]
  • GRACE WAMBUI GICHUHI V COUNTY GOVERNMENT OF KIRINYAGA & OTHERS
    Petition No 2 of 2017 Kerugoya [2018 eKLR]
  • PETER M. KARIUKI V A-G
    2014 eKLR
  • TRUSTED SOCIETY OF HUMAN RIGHT ALLIANCE V A-G AND OTHERS
    2012 eKLR
  • ANM & ANOTHER (suing on their own behalf and on behalf of AMM (minor) as parents and next friend) V FPA & ANOTHER
    2019 eKLR
  • NICHOLAS KIPTOO ARAP KORIR SALAT V IEBC & OTHERS
    C.A Civil Appeal No 228 of 2013 [2013 eKLR]
Jurisdiction invoked
Article 70 of the Constitution; Section 13 of the Environment and Land Court Act and Section 150 of the Land Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Martin Wanyonyi C.E.O Centre for Human Rights Organization) & another v County Government of Bungoma & 2 others [2019] KEELC 486 (KLR)", Case Analysis (2019). Bungoma ELC Petition (filed 24th July 2019); leave granted in Bungoma ELC Miscellaneous Application No 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/486/eng@2019-12-11

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