Benmark Murikwa Nganga v Attorney General & 4 others [2019] KEELC 2132 (KLR)
The bottom line
#The Environment and Land Court refused to halt the Mitubiri landfill's construction because the project had an EIA licence, but allowed the resident's petition to be publicised nationwide.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case for conservatory orders
No prima facie case was established; public participation had commenced and was ongoing, the project had not commenced, and the EIA licence had been issued.
The Court reviewed the evidence of stakeholder meetings, questionnaires, advertisements in Kikuyu, and benchmarking tours, which the Applicant did not controvert. A site visit showed no human settlement within 500 metres and no displacement. The 2nd Respondent filed the EIA licence on record, and the Court presumed the licensing processes were carried out. The Applicant's own EIA report referred only to the access road. Accordingly the elements for conservatory orders were not met.
Whether prejudice would be suffered if conservatory orders were denied
No prejudice was shown since the project had not commenced and the EIA licence had been issued.
The Court found from the site visit report that the project had not commenced and that the EIA licence was on record. In the absence of demonstrated violation or threatened violation of rights following issuance of the licence, the Court could not find that the Applicant would suffer prejudice if the orders were denied.
Whether the application was in the public interest
The Applicant failed to demonstrate which rights had been or were threatened to be violated at that stage.
Given the issuance of the Environmental Impact Assessment Licence and the absence of demonstrated threatened violations, the public interest element for conservatory orders was not satisfied.
Whether the petition should be advertised in a national newspaper
Yes, subject to the Deputy Registrar's approval under section 9(1) and (2)(b) of the Mutunga Rules.
Section 9 of the Constitution of Kenya (Protection of the Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 permits the Court to direct publication of notice of the petition. The Respondents failed to show any prejudice from publication, and the 5th Respondent's claim that publication would usurp its powers was rejected.
Legal principles established
#- An applicant for conservatory orders must demonstrate a prima facie case, prejudice from violation or threatened violation of constitutional rights if the order is not granted, and that it is in the public interest to grant the order.
- Disputes relating to the award of a tender fall outside the jurisdiction of the Environment and Land Court and must be pursued under the Public Procurement and Disposal Act dispute resolution mechanisms.
Court orders
#- 1.Conservatory orders restraining the 2nd Respondent from continued construction of the Mitubiri Sanitary Landfill site refused; the application for those orders dismissed
- 2.The Petitioner allowed to advertise the petition in a daily newspaper of national circulation, subject to the approval by the Deputy Registrar in accordance with section 9(1) and (2)(b) of the Constitution of Kenya (Protection of the Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
- 3.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read together with section 13 of the Environment and Land Court Act; Article 23(3); section 3(3) of the Environment Management and Coordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benmark Murikwa Nganga v Attorney General & 4 others [2019] KEELC 2132 (KLR)", Case Analysis (2019). Petition dated 7th May 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2132/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.