Papa & another v National Environmental Authority & another (Environment and Land Case 1 of 2019) [2020] KEELC 1825 (KLR)
The bottom line
#The Environment and Land Court dismissed residents' pollution claims against Kibos Sugar because they skipped NEMA's complaint process and produced no scientific evidence of pollution.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - exhaustion of statutory remedies
The Environment and Land Court should not be seized of the matter as a first-instance forum; the petitioners ought to have started at the statutory fora under EMCA
Applying the Court of Appeal's decision in Kibos Distillers and Bernard Murage, the court held that multifaceted prayers including constitutional claims do not entitle a litigant to bypass statutory remedies. EMCA establishes fora and remedies capable of addressing all the issues raised, and the petitioners were attempting to make constitutional issues of simple statutory breaches.
Legality of operating without prior EIA
Commencing operations without EIA was legally wrong, but the later environmental audit and approval cured the default in the pragmatic circumstances
The court accepted it was wrong for the 2nd respondent to start without an EIA, but held that legalism alone does not serve justice. The regulator, aware that no EIA had been done at commencement, reviewed the audit, required improvements and allowed operations to continue. Realism and functionalism, not formalism, should govern.
Horizontal application of the Bill of Rights
A constitutional petition can lie between private parties
Relying on Article 3(1) and Article 19(1) and Isaac Ngugi v Nairobi Hospital, the court rejected the 2nd respondent's reliance on the old vertical-enforcement doctrine, holding that private individuals can violate fundamental freedoms and that petitioners, not the respondent, were right on this issue.
Proof of environmental pollution
The petitioners failed to prove their allegations of pollution and degradation
Allegations denied by the other side require proof beyond mere assertion. Serious allegations of oil spillage and destruction of aquatic life demanded expert reports or a site visit; none was provided. Under Section 3(4) of the Evidence Act, a fact neither proved nor disproved is not proved, and only experts could credibly establish such claims.
Legal principles established
#- Where a statute provides a forum and remedy, a litigant must exhaust it before coming to the Environment and Land Court as a court of first instance, even where constitutional issues are raised
- The Bill of Rights binds private persons; fundamental rights violations can be adjudicated between private parties
- Pollution must be proved by expert, scientific evidence, not lay opinion
- Omission of a preliminary environmental impact assessment is not always fatal where a later environmental audit was conducted and approved by the relevant authority
- Private citizens are not condemned to pay costs in environmental litigation unless their cases are plainly frivolous
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13(2) and (3) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Papa & another v National Environmental Authority & another (Environment and Land Case 1 of 2019) [2020] KEELC 1825 (KLR)", Case Analysis (2020). Petition No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1825/eng@2020-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.