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ELCStruck OutELC No. 255 of 2016· [2019] KEELC 525 (KLR)

Romans Waema Gishinga v Shreeji Enterprises (K) Limited [2019] KEELC 525 (KLR)

Environment & Land Court
14 October 2019
AOA. OmolloCYC. Yano
2,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court struck out an environmental pollution suit because the resident had no medical or expert evidence proving ongoing harm, even though pollution had occurred earlier.

What this practically means

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Executive summary

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The plaintiff sued the defendant, a manufacturer dealing in clinker dust and silicate/silica at Miritini, claiming that its operations polluted the air and environment, violating the constitutional right to a clean and healthy environment under Articles 42 and 70 of the Constitution. He sought declarations, orders stopping operations without requisite environmental impact licence, restoration of the environment, medical costs, and general damages for himself and residents of Miritini and Kasarani. The defendant denied the alleged harm, asserting regulatory compliance. The plaintiff called two witnesses, who described dust, pungent smells, effluent discharge, and a collapsed house, and relied on a NEMA improvement order of 13 August 2014 and a Public Health notice dated 25 August 2014 issued under section 119 of the Public Health Act. The defendant's witness testified that by 2015 the defendant had complied, producing a NEMA letter of 25 August 2015 and a County Public Health report of 6 October 2015 confirming a curtain wall, water sprinkling, and covered clinker. The court framed three issues: jurisdiction, whether the plaintiff established a case, and costs. It held that the Environment and Land Court had original jurisdiction under section 3(3) of EMCA and Article 70, distinguishing the defendant's authority on jurisdiction. On the merits, it found that although pollution occurred in 2014, regulatory inspections in 2015 confirmed compliance, and the plaintiff adduced no medical or expert evidence of ongoing violation. The suit was struck out with each party bearing its own costs.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over the environmental rights claim

Holding

The court found it had jurisdiction under section 3(3) of EMCA and Article 70 of the Constitution, and distinguished the defendant's authority on jurisdiction.

Reasoning

The claim pleaded breach of the right to a clean and healthy environment, which falls squarely under section 3(3) of EMCA conferring redress before the Environment and Land Court, and Article 70(1) of the Constitution. The defendant had admitted jurisdiction in its statement of defence. The case of Mbole Nzomo Anthony was distinguishable because the present case did not concern issuance of a licence per se.

p. 3
02

Whether the plaintiff established a case against the defendant on a balance of probabilities

Holding

The plaintiff did not prove his case; the pollution of 2014 was acknowledged, but the regulatory bodies confirmed compliance by 2015 and the plaintiff adduced no medical or expert evidence of ongoing violation.

Reasoning

The court accepted that the defendant's clinker activities produced dust pollution in 2014, prompting NEMA and Public Health intervention. However, subsequent inspections by the same officers in 2015 confirmed that mitigation measures (curtain wall, water sprinkling, covering) had been undertaken. The plaintiff failed to produce evidence that the netting was torn or that roofs were corroded, and adduced no medical reports or expert opinion on dust emissions or health effects.

p. 4

Legal principles established

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  • The Environment and Land Court has original jurisdiction under section 3(3) of EMCA and Article 70 of the Constitution to hear claims alleging violation of the right to a clean and healthy environment, including where compliance with regulatory conditions is in issue; such jurisdiction is not ousted by failure to enjoin NEMA where the claim does not concern issuance of a licence per se.
  • A plaintiff alleging environmental degradation must prove on a balance of probabilities that the right to a clean and healthy environment was or is likely to be violated, including by medical or expert evidence where harm to health is pleaded.

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.Each party to meet its own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 42, 69, 70, 162(2)(b), 165
  • Environment Management and Coordination ActSections 3-5, 3(1), 3(3), 3(5)
  • Waste Management Regulations of 2006Rule 17
  • Public Health ActSection 119

Cases cited (2)

  • Martin Osano Rabera & 2 others v Municipal Council of Nakuru
    ELC Petition No. 53 of 2012
  • Mbole Nzomo Anthony and 3 others v Shreeji Enterprises Ltd & 4 others
    (2011) eKLR
Jurisdiction invoked
Article 70 of the Constitution of Kenya 2010 and Section 3(3) of the Environmental Management and Coordination Act (EMCA)

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, "Romans Waema Gishinga v Shreeji Enterprises (K) Limited [2019] KEELC 525 (KLR)", Case Analysis (2019). ELC No. 255 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/525/eng@2019-10-14

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