Halai Concrete Quarries & 4 others v County Government of Machakos & 4 others; Kenya Power & Lighting Co & another (Interested Parties) [2020] KEELC 579 (KLR)
The bottom line
#The Environment and Land Court ruled that Machakos County illegally ran an unlicensed dumpsite, ordered it relocated and restored the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent (County Government of Machakos) violated the law on waste management and the right to a clean and healthy environment
Yes. The 1st Respondent designated and operated the dumpsite without a NEMA licence and without conducting an Environmental Impact Assessment, contravening Sections 87 and 88 of EMCA and the Waste Management Regulations, 2006, thereby infringing the Petitioners' Article 42 rights.
The court found that the 1st Respondent, constitutionally responsible for refuse removal and solid waste disposal under Part 2 of the Fourth Schedule, never obtained a NEMA licence or EIA approval for the endangered property. NEMA's affidavits confirmed inspections in 2015 and 2019 revealing unlicensed dumping at multiple sites, unmet '10 minimum points', and unheeded improvement and restoration orders. Operating an unlicensed site is a criminal offence under Section 87(5) of EMCA, and the licences the 1st Respondent purported to issue to waste transporters were therefore illegal and invalid.
Whether the 2nd - 5th Respondents violated the law relating to the right to a clean and healthy environment
Yes. They admittedly transported and dumped waste on the unlicensed site, which is unlawful.
Section 87 of EMCA read with Regulation 4 of the Waste Management Regulations, 2006 prohibits transporting waste except under a valid licence and to a licensed disposal site. Since the impugned site was never licensed by NEMA, the activities of the 2nd - 5th Respondents were illegal, and the licences produced by them purporting to authorise dumping were illegal and invalid. Their dumping posed a real and imminent threat to the environment and crippled the Petitioners' quarry operations.
Whether the violations amounted to infringement of the Petitioners' constitutional rights
Yes. The Respondents' breach of Articles 40, 42 and 70 of the Constitution as read with Sections 3, 58 and 87 of EMCA infringed the right to a clean and healthy environment and the right to property.
Applying Moffat Kamau, where a legally prescribed environmental protection procedure (EIA and licensing) is not followed, an assumption must be drawn that the right to a clean and healthy environment is violated. The Respondents' failure to conduct an EIA or obtain a licence was conceded in effect, and reliance on the precautionary principle meant the absence of proof of actual health effects could not defeat the claim. It was the proponents' obligation, not the Petitioners', to prepare an EIA.
Legal principles established
#- A waste disposal site may not be operated without a licence issued by NEMA, and a licence to dump waste cannot issue for an unlicensed site.
- Where a procedure for the protection of the environment is provided by law and is not followed, an assumption ought to be drawn that the project violates or threatens the right to a clean and healthy environment.
- Under Article 70(1) and Section 3(4) of EMCA, an applicant alleging infringement of the right to a clean and healthy environment need not demonstrate personal loss or injury.
- The precautionary principle applies where lack of full scientific certainty exists as to environmental harm; a court need not wait for scientific proof before ordering closure of an unlicensed dumpsite.
Court orders
#- 1.A declaration that the Petitioners’ right to a clean and healthy environment as guaranteed by Article 42 of the Constitution has been violated by the acts and or omissions of the Respondents.
- 2.A prohibitory injunction restraining the 1st, 2nd, 3rd, 4th and 5th Respondents and or its employees, agents, assigns or anybody whosoever from transporting to, dumping and or disposing refuse or waste on Quarry Road between Kay Group Quarries and Kenya Power Syokimau Substation and the buffer-zone adjacent thereto.
- 3.A mandatory injunction compelling the 1st Respondent to identify and relocate the dumpsite to a different and suitable site for disposal of waste in accordance with the Environmental Management and Coordination Act, 1999.
- 4.An environmental restoration order against the 1st Respondent to restore the degraded dumpsite on Quarry Road as far as practicable to its immediate condition prior to the damage.
- 5.A mandatory injunction compelling the 2nd Interested Party to ensure that there should be no further or continued transportation to, storage or disposal of any wastes on Quarry Road, failure to which the appropriate statutory sanctions and penalties to be applied including but not limited to de-licensing of the Respondents.
- 6.The Respondents to comply with the above orders within 120 days from the date of the Judgment.
- 7.Costs of the Petition to be borne by the 1st Respondent.
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution of Kenya, 2010 read with Section 3 of the Environmental Management and Co-ordination Act and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Halai Concrete Quarries & 4 others v County Government of Machakos & 4 others; Kenya Power & Lighting Co & another (Interested Parties) [2020] KEELC 579 (KLR)", Case Analysis (2020). Petition dated 17th June, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/579/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.