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ELCPartially AllowedPetition dated 7th May 2018· [2019] KEELC 2132 (KLR)

Benmark Murikwa Nganga v Attorney General & 4 others [2019] KEELC 2132 (KLR)

Environment and Land Court
31 July 2019
5,811 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, a resident of Mitubiri in Murang'a County, filed a petition on 7th May 2018 alleging that the construction of the Mitubiri Sanitary Landfill site violated constitutional rights to a clean and healthy environment (Articles 42, 69 and 70), public participation (Article 10), and devolution principles. He sought conservatory orders restraining the 2nd Respondent from continued construction of the landfill, declarations, a mandatory injunction compelling identification of an alternative waste disposal site, and leave to advertise the petition nationally. The 2nd Respondent countered that the project was an engineered sanitary landfill serving Murang'a County only, with inbuilt safeguards against seepage and leachate, that public participation had been extensive, that the tender process was advertised, and that the application was premature as the project was at the EIA and licensing stage. The 5th Respondent detailed the EIA review process and pending public notice. The Court framed two issues: entitlement to conservatory orders and advertisement of the petition. Applying the Munya and Kenya Association of Manufacturers tests, the Court held that no prima facie case was shown - public participation had commenced and was ongoing, a site visit confirmed no settlement within 500 metres and no displacement, the EIA licence had since been issued on 1st February 2019, and no prejudice or public interest favouring the orders was demonstrated. Disputes over the tender award were held to lie outside the Court's jurisdiction, being a matter for the Public Procurement and Disposal Act mechanisms. The conservatory orders were refused and the application dismissed, but leave to advertise the petition was granted subject to the Deputy Registrar's approval, with no orders as to costs.

Key legal issues

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01

Whether the Applicant established a prima facie case for conservatory orders

Holding

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.

Reasoning

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.

p. 7
02

Whether prejudice would be suffered if conservatory orders were denied

Holding

No prejudice was shown since the project had not commenced and the EIA licence had been issued.

Reasoning

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.

p. 7
03

Whether the application was in the public interest

Holding

The Applicant failed to demonstrate which rights had been or were threatened to be violated at that stage.

Reasoning

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.

p. 7
04

Whether the petition should be advertised in a national newspaper

Holding

Yes, subject to the Deputy Registrar's approval under section 9(1) and (2)(b) of the Mutunga Rules.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Conservatory orders restraining the 2nd Respondent from continued construction of the Mitubiri Sanitary Landfill site refused; the application for those orders dismissed
  2. 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. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 42; Article 43; Article 69; Article 70(1); Article 22; Article 23(2) and (3); Article 10(2)(c); Article 162(2)(b); Article 174 and Fourth Schedule; Preamble
  • Environment Management and Coordination ActSection 3(3)
  • Environment and Land Court ActSection 13
  • Public Procurement and Disposal ActDispute resolution provisions
  • Constitution of Kenya (Protection of the Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23; Section 9(1) and (2)(b)
  • Public Procurement and Asset Disposal ActPublic participation in tendering

Cases cited (5)

  • Gatirau Peter Munya -vs- Dickson Mwenda Kithinji and 2 others
    Supreme Court of Kenya, Petition No. 2 of 2014 (unreported)
  • Kenya Association of Manufacturers & 2 Others -vs- Cabinet Secretary Ministry of Environment and Natural Resources & 3 Others
    [2017] eKLR
  • Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others
    [2015] eKLR
  • Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
    2006 (2) SA 311 (CC)
  • Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya
    JR Misc. App. No. 374 of 2012
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

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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, "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.