Aloys Mataya Moseti v National Environment Management Authority & another [2020] KEELC 281 (KLR)

The court examined the photographs annexed by both parties (NEMA 5a-d and the Petitioner's annexure AMM 4) and found the perimeter wall dangerously close to the river edge, less than 6 metres away. It was not disputed that NEMA instructed the Petitioner to remove the offending structures. The Petitioner thus breached both the license condition and Regulation 116(2) and 118 of the Water (Plan of Transfer of Water Services) Rules, 2005.

The court held that riparian land is public land which cannot be privately owned, and section 12(2)(c) of the Land Act prohibits its allocation. NEMA, as the environmental agency, is mandated under EMCA to protect the environment and cannot be deemed to breach property rights when acting within that mandate. Granting an injunction would contradict the constitutional preamble's commitment to sustaining the environment for future generations.

Applying the classic criteria, the Petitioner failed to show a prima facie case with probability of success since the photographs proved encroachment on the riparian reserve. Equity also required clean hands. An injunction against NEMA would defeat its statutory monitoring and audit powers under section 69 of EMCA and would go against the spirit of the preamble to the Constitution.