Hassan Ali Kassim & 2 others v Hassan Abdi Ali & 5 others [2019] KEELC 2480 (KLR)
The bottom line
#A Kenyan court confirmed that an environmental impact assessment licence does not shield a factory from injunctions when it ignores NEMA's compliance conditions.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners established a prima facie case warranting confirmation of the temporary injunction
The petitioners met the criteria for injunctive relief; there was a likelihood the milk plant was situated in a residential area and their complaints were validated by NEMA and the public health office
The court applied the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen. The petitioners' documentary evidence, including the county physical planner's indication that the area is residential and NEMA's improvement notice, established a prima facie case. The complaints were found genuine and validated by public institutions, and the precautionary principle favoured the petitioners pending full hearing.
Whether the 1st and 2nd respondents' EIA licence shielded them from the injunction
No - the EIA licence was conditional and the respondents had not complied with NEMA's improvement notice
The court held that the EIA licence issued under Section 63 of EMCA was granted on terms and conditions. Clause 2.4 of the licence expressly disclaimed its use as a statutory defence against pollution charges. The respondents never responded to NEMA's improvement notice of 12.12.2018 setting out seven conditions, and NEMA is the body mandated to ascertain compliance.
Whether the petitioners had locus standi to bring the environmental claim
Yes - Article 42, Article 70 and Section 3 of EMCA entitle every person to a clean and healthy environment and to seek redress without showing personal loss
The respondents argued that no public institutions had complained. The court held that the constitutional and statutory provisions refer to every person, and Section 3(4) of EMCA grants capacity to sue without proof of personal injury provided the action is not frivolous, vexatious or an abuse of process. The petitioners' complaint was supported by NEMA's and the public health office's actions.
Legal principles established
#- An EIA licence is not a blank cheque; a licensee must comply with all conditions set out therein, including responding to improvement notices issued by NEMA
- Any person alleging a threatened violation of the right to a clean and healthy environment has standing to apply for redress under Article 70 and Section 3 of EMCA, without showing personal loss or injury
- NEMA, not the public health officer, is mandated to ascertain compliance with the Environmental Management and Co-ordination Act
Court orders
#- 1.The Application of 14.12.2018 filed by petitioners is allowed; the injunctive orders remain in force until the suit is heard and determined or for a period of one year, whichever comes earlier
- 2.The application dated 27.12.2018 is dismissed with no orders as to costs
- 3.The 1st and 2nd Respondents are directed to engage with the 3rd respondent with a view to submitting a response to NEMA in respect of NEMA's letter of 12.12.2018
- 4.Each party bears their own costs in respect of the two applications
- Jurisdiction invoked
- Article 42 and Article 70 of the Constitution; Section 3 of the Environmental Management and Co-ordination Act (jurisdiction of the Environment and Land Court over environmental rights violations)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Ali Kassim & 2 others v Hassan Abdi Ali & 5 others [2019] KEELC 2480 (KLR)", Case Analysis (2019). Not stated in judgment (Petition dated 14th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2480/eng@2019-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.