Benson Ambuti Adega & 2 others v Kibos Sugar and Allied Industries Limited & 4 others; Kenya Union of Sugar Plantation and Allied Workers(Interested Party) [2019] KEELC 2242 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped Kibos factories from operating until they complete proper environmental impact assessments, finding their licenses were illegally issued.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court vis-a-vis the National Environment Tribunal
The court has original jurisdiction because the petition contains prayers and parties beyond the Tribunal's mandate; partial exhaustion would add costs and delay
The preliminary objections by the 3rd Respondent and Interested Party were that prayers 2-6 belonged before the NET under Section 129 EMCA. The court held that prayers 1, 7, 8, 9 and 10 fall outside the Tribunal's mandate and that splitting the petition would multiply costs and delay, contrary to Article 159(2)(b). Following Ken Kasing'a, the multifarious complaints against multiple state and private entities could only be comprehensively addressed by the court.
Limitation under Section 129(1) EMCA
The statutory 60-day limitation does not apply to constitutional claims of infringement of the right to a clean and healthy environment
The Respondents argued the challenges to 2005-2011 licences were time barred. The court, considering Articles 23, 42, 47, 69 and 70, held that complaints of infringement of the right to a clean and healthy environment are not governed by the statutory limitation period, and in any event the matter is before the court, not the Tribunal.
Issuance of EIA licence No. 0000259 on an EPR only
The court did not fault the original licence issued on the project report for a 500 TCD factory, but faulted the unauthorised expansion to 1650 TCD without variation or EIA study
Section 58(2) and (3) EMCA make EIA studies mandatory where NEMA finds significant impact. The court presumed NEMA was satisfied with the EPR for the small factory since Respondents did not avail an EIA Study Report to rebut the claim, but noted the capacity increase to 1650 TCD without approval.
Variation and transfer of EIA licences without EIA studies
The variation certificate No. 0000151 doubling capacity, and transfer certificates Nos. 0000042 and 0000043, were issued un-procedurally, illegally and are void ab initio
The court relied on Moffat Kamau and West Kenya Sugar to hold that a variation changing the nature, capacity or site of a project requires an EIA study report. The 2nd and 3rd Respondents' factories were on L.R. No. 11273, never subjected to EPR or EIA. NEMA's own letters of 9th November and 1st December 2010 were at cross-purposes, and the transfer allowed Kibos Power to obtain a licence while evading NEMA's EIA direction.
Pollution and violation of Article 42
The Petitioners proved that the 1st to 3rd Respondents discharge raw effluent beyond accepted limits, violating the right to a clean and healthy environment
The 4th Respondent's submissions confirmed pollution and the closure of two plants; the initial Environmental Audit of May 2018 showed lagoon waste exceeding discharge limits and river contamination downstream. Continued discharge despite restoration orders infringed Article 42, entitling the Petitioners to enforcement under Article 70.
Regulatory failure by NEMA and the County Government
The 4th and 5th Respondents failed in their statutory and constitutional duties to stop the degradation
Improvement and restoration orders were not complied with and no prosecutions were initiated. The 5th Respondent's CECM acknowledged pollution in his letter of 14th September 2018 yet no Section 108 action was taken; its submission that it could not second-guess NEMA ignored its statutory role under Sections 29, 30, 38-41 EMCA.
Whether damages should be awarded
Damages to the Petitioners individually were refused; declarations, injunction and restoration orders were granted instead
The court took the Petitioners to be public spirited individuals litigating for the public good; with many other affected persons, an individual damages award was inappropriate. Costs were awarded as the petition succeeded.
Legal principles established
#- Where a procedure for protection of the environment provided by law is not followed, an assumption arises that the project violates or threatens the right to a clean and healthy environment, rebuttable only if proper procedure is followed
- A substantial variation of an EIA licence in nature, capacity or site requires a fresh EIA study report before the licence may be varied
- Where public interest in environmental protection is pitted against private commercial interest, the public interest overrides the private interest
- A party who flouts the law to gain advantage cannot expect the court to aid it to sustain a position acquired through violation of the law; such licences are void ab initio
Court orders
#- 1.Declaration that the Petitioners' right to a clean and healthy environment under Articles 42 and 43 of the Constitution has been violated by the actions and omissions of the Respondents
- 2.Declaration that the issuance of EIA license No. 0000259 to the 1st Respondent based on an Environmental Project Report only, without an EIA study, was unconstitutional, illegal and in contravention of Sections 58, 59, 60, 61, 62 and 63 of EMCA and Regulations 17, 18, 22, 23 and 24 of the Environmental (Impact Assessment and Audit) Regulations, 2003
- 3.Declaration that the variation of EIA license No. 0000259 and issuance of certificate of variation No. 0000151 without an EIA study was unconstitutional, illegal and contravened Section 58-63 of EMCA and Regulation 25
- 4.Declaration that the transfer of EIA license No. 0000151 and issuance of transfer certificates Nos. 0000042 and 0000043 to the 2nd and 3rd Respondents without EIA studies was unconstitutional and illegal
- 5.Declaration that the 1st to 3rd Respondents' EIA licenses were illegally and un-procedurally acquired
- 6.Order of permanent injunction restraining the 1st to 3rd Respondents from continuing operations of their factories or milling sugarcane at Kibos without first carrying out EIA studies and obtaining fresh EIA licenses
- 7.Order of environmental restoration requiring demolition of structures erected on L.R. No. 654/23 and 11273 without an approved EIA Study Report if fresh EIA licenses are not obtained within 120 days, with the Petitioners in conjunction with the 4th and 5th Respondents authorized to appoint an auctioneer to carry out the restoration and recover costs from the 1st to 3rd Respondents in default
- 8.Declaration that the failure, neglect and refusal by the 4th and 5th Respondents to stop the activities of the 1st to 3rd Respondents was illegal and contravened Section 108 of EMCA and Articles 3, 10 and 17 of the Constitution
- 9.Respondents to pay the Petitioners' costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011, giving effect to Article 42, 69 and 70 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Ambuti Adega & 2 others v Kibos Sugar and Allied Industries Limited & 4 others; Kenya Union of Sugar Plantation and Allied Workers(Interested Party) [2019] KEELC 2242 (KLR)", Case Analysis (2019). Petition dated 25th October 2018 (Kisumu Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2242/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.