Kibwezi Water Resources Users Association & 4 others v Attorney General & 5 others [2019] KEELC 1639 (KLR)
The bottom line
#Kenya's Environment & Land Court found the Mtito-Andei water project was built without required permits, but stopped future water abstraction rather than dismantling the completed project.
What this practically means
#Executive summary
#Key legal issues
#Whether the initiation and completion of the project was sanctioned by law
The project was not sanctioned by law: TANATHI commenced and completed it without an EIA licence from NEMA or a permit from WaRMA, and KFS abdicated its duty by allowing access to the forest
The project involved abstraction of water from Umani springs within the Kibwezi forest ecosystem, a activity listed in paragraph 4 of the Second Schedule of EMCA, so an EIA licence was mandatory before commencement. NEMA denied issuing any licence and TANATHI exhibited none. WaRMA's own deponent acknowledged an EIA licence was a precondition, yet the project was complete when the petition was filed, so no permit application could still have been pending. TANATHI also exhibited no permit from WaRMA. Without these, KFS's grant of access was unprocedural and amounted to abdication of its conservation duty.
Whether Articles 10 and 42 of the Constitution were violated regarding public participation
NEMA and TANATHI violated Article 10 with regard to public participation; WaRMA did not wrong
Section 59(2) of EMCA makes it NEMA's mandate to publish the EIA study report in the Gazette, newspapers and radio for public comments. NEMA admitted it requested TANATHI to publish the notice but TANATHI failed to comply, so no public notice was issued. TANATHI claimed stakeholder meetings in 2009 but filed no substantive response exhibiting evidence of them, and proceeding to completion without an EIA licence abetted non-compliance. WaRMA had discretion under section 33 of the Water Act to determine the extent of public participation, and rule 29 must be read mutatis mutandis to avoid inconsistency with the parent Act.
Whether Articles 69 and 42 were violated
All the Respondents, as state representatives or affiliates, are jointly and severally liable for violating Article 69, and by extension Article 42
Article 69(1)(a) obliges the state to ensure sustainable exploitation and management of the environment and equitable sharing of accruing benefits, and 69(1)(g) requires elimination of processes likely to endanger the environment. The Petitioners' concern about over-abstraction drying up Umani springs was corroborated by the KFS letter of 25/06/2012 banning new water projects and by Dr. Sean Avery's Hydrological Assessment Review Report of October 2013. All Respondents being representatives or affiliates of the state, they are jointly and severally liable; Article 42 is intricately connected to Article 69 so its violation follows by extension.
Whether Article 35 (access to information) was violated
Article 35 was violated because the information sought in the letters of 01/10/2012 and 10/09/2013 was never supplied
The AG, as representative of the ministries to which the letters were addressed, did not participate in the proceedings, so there was no evidence the information was ever supplied. Moreover, since the Court had already found there was no public participation and no EIA licence was ever obtained, the information sought was simply not available.
Which remedies should issue
A prohibition on all future activities causing further water abstraction from Umani springs; environmental restoration refused
Most prayers were overtaken by events because the project was complete. Dismantling it would affect unrepresented beneficiaries and offend natural justice. The Court found a proper monitoring process for sustainable water off-take was lacking and issued a prohibition on future abstraction instead.
Legal principles established
#- A project listed in the Second Schedule of EMCA requires an EIA licence before commencement, and commencing without one contravenes the law
- Where a petitioner alleges violation of the Constitution, the provisions violated, the manner of violation and the remedy must be pleaded with reasonable precision
Court orders
#- 1.A prohibition of all future activities that would cause further water abstraction from the Umani springs
- Jurisdiction invoked
- Articles 23, 28, 42, 60, 69 and 70 of the Constitution of Kenya, 2010; Environmental Management and Co-ordination Act, 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibwezi Water Resources Users Association & 4 others v Attorney General & 5 others [2019] KEELC 1639 (KLR)", Case Analysis (2019). ELC Petition No. 4 of 2018 (Formerly Nairobi ELC Petition No. 113 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1639/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.