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ELCOtherPetition (Nakuru ELC) filed 30th June 2017· [2019] KEELC 2444 (KLR)

Trusted Society of Human Rights Alliance v James Kinuthia & another Interested Party;National Environment Management Authority & 2 others [2019] KEELC 2444 (KLR)

Environment and Land Court
18 July 2019
DOD. O. Ohungo
4,712 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Nakuru court stopped a construction project until the developer completes the required environmental impact assessment, shifting the burden of proving environmental safety onto the developer.

What this practically means

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Executive summary

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The petitioner, a human rights organisation suing for residents of Menengai Ward, Nakuru, petitioned against a commercial/residential construction on LR No. Nakuru Municipality Block 16/295, alleging it was built on a public access road without sanction under section 58 of EMCA, without public participation, and in violation of Articles 40, 42, 43, 47 and 69 of the Constitution. The first respondent claimed to be the registered proprietor with approved building plans; the second respondent (Nakuru County Government) said it approved the plans in 2015; NEMA (first interested party) supported the petition, having put the EIA process on hold after the first respondent failed to address issues raised; the National Construction Authority (second interested party) said it suspended and later cleared the project; the Director of Surveys did not respond. The court framed three issues: sub judice, whether the right to a clean and healthy environment was threatened or breached, and whether the reliefs should issue. Holding that the sub judice rule applies even to constitutional petitions, it struck out prayers 2, 3 and 4 and part of prayer 1, which overlapped with Nakuru ELC No. 104 of 2017 and CMCC No. 565 of 2014. On the environmental claim, it applied the precautionary principle: the proponent bears the burden of showing environmental soundness through the EIA process, and having failed to do so, the project presented a potential threat to the Article 42 right. A final declaration was held premature. The court directed EIA compliance within 60 days, failing which a restoration order and a violation declaration would issue automatically, restrained construction pending compliance, and ordered each party to bear own costs.

Key legal issues

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01

Whether the petition is sub judice

Holding

Partly: the aspects concerning validity of title and the claim that the land is a public access road are sub judice and were struck out; the Article 42 environmental claim was severed and retained

Reasoning

Section 6 of the Civil Procedure Act bars trial of matters directly and substantially in issue in a previously instituted suit. The validity of the first respondent's title to Nakuru Municipality Block 16/295 and whether it is a public road were already in issue in Nakuru ELC No. 104 of 2017 and the counterclaim in CMCC No. 565 of 2014. However, the environmental-rights question was not raised in those suits, so the court severed it under Article 259 to allow determination.

p. 3
02

Whether the project threatens or breaches the right to a clean and healthy environment

Holding

The project in its present state presents a potential threat and potential breach, since the proponent has not completed the EIA process or obtained an EIA licence

Reasoning

The first respondent, a project proponent under section 58 of EMCA, submitted an EIA report but did not address the issues raised by the first interested party and did not respond to the statutory improvement order by affidavit. Following the precautionary principle, where the statutory environmental protection procedure is not followed, a presumption arises that the project violates the right to a clean and healthy environment, rebuttable only by proper procedure and an EIA licence.

p. 5
03

Whether the reliefs sought should issue

Holding

No final declaration issued as it would be premature; conditional directions were given

Reasoning

The EIA process, placed on hold pending determination, is what will determine whether the project facilitates sustainable development and sound environmental management, and thus whether it violates Article 42. The court instead gave the first respondent 60 days to comply with the EIA process, with automatic restoration order and declaration in default, and an interim restraint on construction.

p. 5

Legal principles established

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  • The sub judice rule under section 6 of the Civil Procedure Act applies even to constitutional petitions
  • The burden lies on the project proponent to demonstrate that a project is environmentally sound by completing the EIA process and obtaining an EIA licence; until then a presumption of environmental harm applies

Court orders

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  1. 1.First respondent to address the issues listed in the first interested party's letter dated 16th March 2017 or renew the application for an Environmental Impact Assessment Licence for the project on LR No. Nakuru Municipality Block 16/295 within 60 days and thereafter fully comply with the EIA process
  2. 2.In default, an environmental restoration order will automatically issue directing the first respondent to restore the site to its state before commencement of the project
  3. 3.In default, a declaration will automatically issue that the first respondent's construction project violates the petitioner's and the public's right to a clean and healthy environment under Article 42
  4. 4.Pending compliance, the first respondent is ordered not to commence or proceed with the construction project on LR No. Nakuru Municipality Block 16/295
  5. 5.The first interested party is at liberty to give further directives to the first respondent within its mandate under EMCA
  6. 6.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40(1), 42, 43(1), 47(1), 69, 70, 176, 259
  • Environmental Management and Co-ordination Act, 1999Sections 2, 3, 58, 63
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulation 17
  • Non-Governmental Organizations Co-ordination Act, 1990not specified
  • County Governments Act, 2012not specified
  • Civil Procedure ActSection 6
  • National Construction Authority ActSection 3
  • Survey ActSection 3
  • Registered Lands Actnot specified (referred to in petition as '(sic)')

Cases cited (5)

  • Patrick Musimba v National Land Commission & 4 Others
    [2016] eKLR
  • Kenya Planters Co-operative Union Limited v Kenya Co-operative Coffee Millers Limited & another
    [2016] eKLR
  • Ken Kasing'a v Daniel Kiplagat Kirui & 5 others
    [2015] eKLR
  • Kiama Wangai v John N. Mugambi & Another
    [2012] eKLR
  • Lucas M. Kariuki v James Kinuthia (CMCC No. 565 of 2014, Nakuru)
    ruling delivered 1st August 2014
Jurisdiction invoked
Articles 42, 69 and 70 of the Constitution of Kenya, 2010 (enforcement of the right to a clean and healthy environment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Trusted Society of Human Rights Alliance v James Kinuthia & another Interested Party;National Environment Management Authority & 2 others [2019] KEELC 2444 (KLR)", Case Analysis (2019). Petition (Nakuru ELC) filed 30th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2444/eng@2019-07-18

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