Celestine John Aoko & others v Shem Owino Muga & 7 others; Amicus Curiae Kenya National Commission on Human Rights [2019] KEELC 2948 (KLR)
The bottom line
#Kenya's Environment and Land Court declared unapproved sand harvesting unlawful and confirmed anyone can sue to protect the environment without owning land.
What this practically means
#Executive summary
#Key legal issues
#Whether sand harvesting without NEMA/County approval and without an EIA is lawful
The activities are unlawful and illegal as they are done without approval and supervision and without environmental impact assessment, denying the public participation required
The 1st to 4th Respondents admitted harvesting sand but did not dispute or rebut the depositions that their activities lacked approval from the 6th and 7th Respondents and that no EIA was undertaken. Reliance on clause 8 of the National Sand Harvesting Guidelines 2007 did not answer the absence of EIA and statutory approvals. The public was denied an opportunity to make representations before the activities were carried out.
Whether the Petitioners had capacity despite lacking proof of land ownership
Yes; Articles 22(1) & (2) and 70(1) & (3) confer standing to sue in one's own interest and for a group, and Article 70(3) removes the need to prove loss
The court held that the backbone of the petition was the right to a clean and healthy environment, and that proof of land ownership is not a prerequisite to approaching the court for protection of the environment and fundamental rights, contrary to the 1st to 4th Respondents' submissions.
Whether the Petitioners proved actual violation and quantifiable loss
No; no study or expert report established actual violation or identifiable loss under Articles 40, 42 and 43
The court agreed with the 1st to 4th Respondents that no study or expert report confirmed the alleged reduction of water supply, collapse of dykes, or flooding. Without such evidence the court could not make a finding on identifiable and quantifiable loss capable of assessment and compensation, though it found a threat to environmental rights.
Whether the petition was premature for failure to exhaust statutory remedies
No; given the fragility of the environment and the authorities' inaction despite complaints, the court would deal with the matter without regard to procedural technicalities under Article 159(2)(b) and (d)
Although the Petitioners could have pursued the Public Complaints Committee or National Environmental Tribunal under EMCA, letters to the Assistant County Commissioner, Chief and District Officer showed national government agents were aware and took no steps. The Petitioners could not be faulted for coming to court after waiting for action that never came.
Legal principles established
#- Evidence of land ownership is not a prerequisite to filing a petition for enforcement of environmental rights; standing under Articles 22(1) & (2) and 70(1) & (3) suffices
- An applicant under Article 70 need not demonstrate loss or injury to obtain redress for threatened environmental harm
- Sand harvesting requires prior approval, supervision and environmental impact assessment by the relevant statutory agencies; unapproved harvesting is unlawful
Court orders
#- 1.A declaration that the sand harvesting and transportation activities carried out by the 1st to 4th Respondents at Kochieng West Location without the approval and supervision of the 6th and 7th Respondents are unlawful and illegal as they are likely to threaten the Petitioners' constitutional right to a clean and healthy environment
- 2.The 7th Respondent is directed to, within three months, engage the Petitioners, residents, the 1st to 4th Respondents, other stakeholders including the Amicus Curiae with a view to coming up with a way forward ensuring sand harvesting, if continued, is done in accordance with the law; quarterly reports to be filed with the court
- 3.Until the report is presented and adopted, the 1st to 4th Respondents are restrained from harvesting and transporting sand from Kochieng West Location, Kadibo Division, Nyando Constituency, Kisumu County
- 4.Each party to bear their own costs
- 5.Liberty to apply granted
- Jurisdiction invoked
- Articles 22, 23, 70 and 165 of the Constitution of Kenya; Section 9 of the Environmental Management and Coordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Celestine John Aoko & others v Shem Owino Muga & 7 others; Amicus Curiae Kenya National Commission on Human Rights [2019] KEELC 2948 (KLR)", Case Analysis (2019). ELC Petition No. 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2948/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.