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ELCPartially AllowedELC Petition No. 2 of 2016· [2019] KEELC 2948 (KLR)

Celestine John Aoko & others v Shem Owino Muga & 7 others; Amicus Curiae Kenya National Commission on Human Rights [2019] KEELC 2948 (KLR)

Environment and Land Court
19 June 2019
5,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Six petitioners, suing in their own interest and representing 214 other land parcel owners in Kochieng West Location, Kadibo Division, Kisumu County, petitioned against five individual sand harvesters and transporters, NEMA, the County Government of Kisumu and the Attorney General, alleging that unauthorised sand harvesting and transportation caused environmental degradation violating their rights under Articles 40, 42 and 43. They sought declarations, a permanent injunction or rehabilitation, an order compelling NEMA to prosecute unlicensed harvesters, and general damages. The Kenya National Commission on Human Rights was enjoined as amicus curiae. The County Government argued the petitioners had not notified it of complaints and had not exhausted statutory avenues under EMCA; the 1st to 4th Respondents denied causing gullies, relying on clause 8 of the National Sand Harvesting Guidelines 2007, and attacked the petitioners' evidence and proof of ownership. The court held that proof of land ownership is not a prerequisite to standing under Articles 22 and 70, and that Article 70(3) removes the need to prove loss. It found the petitioners had not proved actual violation or quantifiable loss, since no expert report or study supported the allegations, and so refused damages and the declaration of actual rights violation. However, the court found the harvesting was carried out without approval, supervision or environmental impact assessment, threatening the right to a clean and healthy environment. It declared the activities unlawful and illegal, directed the County Government to convene stakeholder engagement within three months with quarterly reports to court, restrained the 1st to 4th Respondents pending adoption of that report, granted liberty to apply, and ordered each party to bear their own costs.

Key legal issues

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01

Whether sand harvesting without NEMA/County approval and without an EIA is lawful

Holding

The activities are unlawful and illegal as they are done without approval and supervision and without environmental impact assessment, denying the public participation required

Reasoning

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.

p. 6
02

Whether the Petitioners had capacity despite lacking proof of land ownership

Holding

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

Reasoning

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.

p. 6
03

Whether the Petitioners proved actual violation and quantifiable loss

Holding

No; no study or expert report established actual violation or identifiable loss under Articles 40, 42 and 43

Reasoning

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.

p. 8
04

Whether the petition was premature for failure to exhaust statutory remedies

Holding

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)

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Each party to bear their own costs
  5. 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

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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, "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.