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ELCPartially AllowedNot stated in judgment (Petition dated 14th December 2018)· [2019] KEELC 2480 (KLR)

Hassan Ali Kassim & 2 others v Hassan Abdi Ali & 5 others [2019] KEELC 2480 (KLR)

Environment and Land Court
10 July 2019
2,822 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioners, residents of the Taqwa area of Isiolo County, petitioned for a declaration that their constitutional right to a clean and healthy environment under Article 42 had been or was threatened with violation by the 1st and 2nd respondents, who operate a milk processing plant in a residential area. They contemporaneously sought temporary injunctive orders restraining the respondents from interfering with or carrying out activities at the milk plant on Plot No. 314 Taqwa Residential Area. Interim injunction orders granted on 20.12.2018 were extended, prompting the 1st and 2nd respondents to apply for their discharge or stay, contending they held all requisite approvals including an EIA licence, that the dispute was business rivalry, and that the injunction paralysed their operations and caused irreparable loss. The court framed the issue as whether the petitioners were entitled to a temporary injunction and whether the interim orders should be confirmed or discharged. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, the court found a likelihood that the plant was in a residential area and that the petitioners' pollution complaints were validated by NEMA and the public health office. It held that an EIA licence is not a blank cheque: the respondents had to comply with NEMA's improvement notice of 12.12.2018, to which they never responded, and NEMA, not the public health officer, is mandated to ascertain compliance. Applying the precautionary principle, the court allowed the petitioners' application, confirmed the injunction until determination of the suit or one year, dismissed the respondents' application, and directed them to respond to NEMA, with each party bearing their own costs.

Key legal issues

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01

Whether the petitioners established a prima facie case warranting confirmation of the temporary injunction

Holding

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

Reasoning

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.

p. 5
02

Whether the 1st and 2nd respondents' EIA licence shielded them from the injunction

Holding

No - the EIA licence was conditional and the respondents had not complied with NEMA's improvement notice

Reasoning

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.

p. 4
03

Whether the petitioners had locus standi to bring the environmental claim

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The application dated 27.12.2018 is dismissed with no orders as to costs
  3. 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. 4.Each party bears their own costs in respect of the two applications

Authorities

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Legislation

  • Constitution of KenyaArticle 42
  • Constitution of KenyaArticle 70
  • Environmental Management and Co-ordination ActSection 3
  • Environmental Management and Co-ordination ActSection 63

Cases cited (3)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • NGURUMAN LIMITED V. JAN BONDE NIELSEN & 2 OTHERS
    CA NO. 77 OF 2012
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
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

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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, "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.