Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition filed on 4.12.2012 (Eldoret)· [2019] KEELC 4468 (KLR)

Kibui & 2 others v Impressa Construzioni Giuseppe Maltauro SPA & 2 others (Constitutional Petition 1 of 2012) [2019] KEELC 4468 (KLR)

Environment and Land Court
22 February 2019
AOA. Ombwayo
4,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Three petitioners, on their own behalf and on behalf of 339 inhabitants of Mwamba Village in Uasin Gishu County, petitioned over quarrying by the 1st respondent, a road contractor engaged by the 2nd respondent (KeNHA) to rehabilitate the Eldoret-Webuye section of the Eldoret-Malaba Highway. They alleged that blasting and drilling at Mwamba Quarry caused dust, water and noise pollution, vibrations that cracked houses and destroyed crops, and disrupted learning in nearby schools, and that the environmental impact assessment process excluded the community and its mitigation recommendations were ignored. They sought declarations, permanent injunctions against further quarrying, and compensation. The 1st respondent asserted that an EIA was conducted, a licence was issued with conditions which it complied with, and some compensation had been paid; the 2nd respondent said it had consulted the community and fulfilled all regulatory conditions; the 3rd respondent (NEMA) issued the licence. On 22.9.2014 a consent order adopted the 3rd respondent's Control Audit Report, which recorded pollution, unfenced site, erosion and oil-spill water pollution, leaving liability for determination. The court held the 1st respondent breached the petitioners' Article 42 right to a clean and healthy environment. Compensation claims for houses and land failed for want of proof, but each petitioner was awarded Kshs. 30,000 under Article 70 and the polluter pays principle, with costs of the petition to the petitioners.

Key legal issues

#
01

Breach of the right to a clean and healthy environment

Holding

The 1st respondent breached the petitioners' Article 42 rights through water, air and noise pollution and excessive vibrations

Reasoning

The court relied on the Control Audit Report filed on 11.8.2014 by the 3rd respondent and adopted by consent, which recorded water pollution from oil spill, dust emissions, noise and blasting affecting homesteads and schools, and concluded the quarrying activities violated Article 42.

p. 5
02

Compensation for breach of environmental rights

Holding

Each petitioner awarded Kshs. 30,000 despite lack of proof of quantum

Reasoning

The respondents alleged compensation but adduced no evidence of it. Under Article 70 an applicant need not prove loss, so although specific heads (houses, land, livestock) failed for want of proof, the court awarded general damages per petitioner for the proved constitutional violation.

p. 5
03

Liability as between respondents

Holding

The 1st respondent alone is liable under the polluter pays principle

Reasoning

Applying the polluter pays principle embedded in Principle 16 of the Rio Declaration (1992), the court held the party carrying out the polluting activity bears the costs; the 1st respondent, as the contractor undertaking blasting and drilling at the quarry, is the polluter and thus liable.

p. 6

Legal principles established

#
  • Article 42 guarantees every person the right to a clean and healthy environment
  • The polluter pays principle renders the polluting party liable for the costs of pollution
  • Under Article 70(3) an applicant need not demonstrate loss or injury to obtain redress
  • Compensation heads must be proved; bare allegation of land loss is insufficient

Court orders

#
  1. 1.The 1st respondent to pay Kshs. 30,000 to each and every petitioner for breach of their right to a clean and healthy environment
  2. 2.Costs of the petition to the petitioners

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 70
  • Environmental Management and Co-ordination Act (EMCA) No. 8 of 1999Environmental Impact Assessment requirements
Jurisdiction invoked
Articles 42 and 70 of the Constitution of Kenya, 2010 (enforcement of environmental rights)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kibui & 2 others v Impressa Construzioni Giuseppe Maltauro SPA & 2 others (Constitutional Petition 1 of 2012) [2019] KEELC 4468 (KLR)", Case Analysis (2019). Petition filed on 4.12.2012 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4468/eng@2019-02-22

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