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ELCPartially AllowedELC Petition No. 7 of 2020 (Machakos)· [2020] KEELC 546 (KLR)

Muthui & 19 others v County Government of Kitui & 7 others (Environment and Land Petition E06 of 2020) [2020] KEELC 546 (KLR)

Environment and Land Court
27 November 2020
12,303 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~49 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court halted sand harvesting from Tiva River in Kitui, ruling that residents can sue to protect the environment without proving personal harm.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 11th September 2020 in an environmental petition brought by residents of Ndumoni, Tanganyika, Nyanyaa and Tiva areas of Kitui County against the County Government of Kitui, its organs, NEMA and two sand transporters. The Petitioners alleged that unregulated sand harvesting from Tiva River, licensed by the County Government without adherence to NEMA's 2007 Sand Harvesting Guidelines and without any county legislation, threatened their right to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. They sought conservatory orders restraining further exploitation of the river. The 1st and 2nd Respondents raised a preliminary objection on jurisdiction (arguing the National Environmental Tribunal was the proper forum) and on the Petitioners' capacity under Order 1 Rule 8 of the Civil Procedure Rules, and maintained that harvesting was regulated through an Environmental Impact Assessment and a Gazette Notice banning export of sand. The court held that it, not the NET, had jurisdiction because the Petitioners were not appealing any NEMA decision; that the Petitioners had locus standi under Article 70, Section 3(4) of EMCA and Rule 4 of the Mutunga Rules without showing personal injury; and that a prima facie case was established given the absence of a Technical Sand Harvesting Committee, of compliance with the Guidelines, of any EIA submitted to NEMA under Section 58 of EMCA, and of any county legislation, the Gazette Notice not amounting to law. Applying the precautionary principle, the court allowed the application and issued conservatory orders restraining sand harvesting from Tiva River until the petition is heard and determined, with the costs of the application to be met by the 1st Respondent.

Key legal issues

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01

Jurisdiction of the ELC vis-à-vis the National Environmental Tribunal

Holding

The ELC has jurisdiction; the NET's jurisdiction under Section 129 of EMCA is appellate over NEMA decisions, and the Petitioners are not appealing any NEMA decision.

Reasoning

The court traced its jurisdiction to Article 162(2)(b) and Section 13 of the ELC Act, including Section 13(4) on Article 42, 69 and 70 claims. The NET's mandate under Section 129 of EMCA is confined to appeals from licensing and related NEMA decisions. Since the Petitioners challenged the Respondents' failure to legislate and the alleged infringement of the right to a clean environment rather than any NEMA decision, the Tribunal had no jurisdiction and the ELC properly seized of the matter.

p. 13
02

Locus standi and representative suits

Holding

The Petitioners have locus standi; Article 70 and Section 3(4) EMCA permit any person to sue without showing personal injury, and Rule 4 of the Mutunga Rules permits suits in the public interest without notice.

Reasoning

Relying on Joseph Leboo, the court held that environmental litigation cannot be shackled by narrow locus standi rules because the right protects present and future generations under the principle of intergenerational equity. The objection grounded on Order 1 Rule 8 of the Civil Procedure Rules failed because constitutional petitions are governed by the Mutunga Rules, under which a petitioner may sue on behalf of a class or in the public interest without notice to affected parties.

p. 16
03

Prima facie threat to the right to a clean and healthy environment

Holding

A prima facie case was established: no evidence of compliance with the NEMA Sand Harvesting Guidelines, no Technical Sand Harvesting Committee, no legislation by the County Assembly, no EIA submitted to NEMA under Section 58 EMCA, and the Gazette Notice did not amount to a law.

Reasoning

The court reviewed the National Sand Harvesting Guidelines, 2007 and found no evidence of compliance, no TSHC in place, and no regulation enacted by the 3rd Respondent. The Gazette Notice banning transportation of sand created no punishable offence and was not legislation. The EIA relied upon was never submitted to NEMA as required by Section 58 and the Second Schedule of EMCA. On the precautionary principle, short-term economic considerations did not outweigh environmental imperatives.

p. 23

Legal principles established

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  • Any person may institute proceedings to protect the right to a clean and healthy environment without demonstrating personal loss or injury.
  • Constitutional petitions are governed by the Mutunga Rules, not Order 1 Rule 8 of the Civil Procedure Rules, and no notice to affected parties is required.
  • Sand harvesting contrary to the National Sand Harvesting Guidelines, 2007 is prima facie unsustainable exploitation under Article 69(1)(a).
  • The precautionary principle permits courts to act without full scientific certainty where serious or irreversible environmental damage is threatened.

Court orders

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  1. 1.Conservatory orders restraining the Respondents from licensing, permitting, allowing or in any other way exploiting resources, particularly sand harvesting from Tiva River near Ndumoni, Tanganyika, Nyanyaa and Tiva in Kitui County until hearing and determination of the Petition
  2. 2.The costs of the Application to be met by the 1st Respondent
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Article 70 of the Constitution read with Section 13(4) ELC Act and Section 3 EMCA

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, "Muthui & 19 others v County Government of Kitui & 7 others (Environment and Land Petition E06 of 2020) [2020] KEELC 546 (KLR)", Case Analysis (2020). ELC Petition No. 7 of 2020 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/546/eng@2020-11-27

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