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ELCDismissedPetition No. 1 of 2019· [2020] KEELC 1825 (KLR)

Papa & another v National Environmental Authority & another (Environment and Land Case 1 of 2019) [2020] KEELC 1825 (KLR)

Environment and Land Court
16 June 2020
5,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Two petitioners sued NEMA and Kibos Sugar & Allied Industries Ltd over a cane loading and buying centre established at Nambale town, Busia County, alleging that the 2nd respondent commenced operations without an Environmental Impact Assessment licence, was discharging effluent into Nambale river and violating their rights under Articles 27, 28, 32, 40, 42, 43 and 47 of the Constitution and various provisions of EMCA, the EIA Regulations 2003 and the Water Act. They sought declarations of illegality, a permanent injunction, environmental restoration, general damages, interest and costs. The 2nd respondent contested jurisdiction, argued the petition lay between private parties, maintained that it had conducted an environmental audit approved by the regulator, and denied pollution absent scientific proof. The court framed five issues. On jurisdiction, applying Bernard Murage and the Court of Appeal's Kibos Distillers decision, it held the petitioners should have first pursued statutory remedies under EMCA; multifaceted constitutional prayers did not entitle them to bypass the statutory fora. On legality, it accepted that commencing operations without EIA was wrong but, as a matter of pragmatism, held the subsequent environmental audit and regulatory approval cured the omission. It affirmed that the Bill of Rights applies horizontally between private parties. On proof, it found the petitioners had adduced no expert or scientific evidence of pollution, so their allegations were unproved. The petition was dismissed in its entirety, with each party bearing its own costs, the court holding the suit was not so frivolous as to warrant condemning the citizen petitioners to pay costs.

Key legal issues

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01

Jurisdiction - exhaustion of statutory remedies

Holding

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

Reasoning

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.

p. 5
02

Legality of operating without prior EIA

Holding

Commencing operations without EIA was legally wrong, but the later environmental audit and approval cured the default in the pragmatic circumstances

Reasoning

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.

p. 6
03

Horizontal application of the Bill of Rights

Holding

A constitutional petition can lie between private parties

Reasoning

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.

p. 6
04

Proof of environmental pollution

Holding

The petitioners failed to prove their allegations of pollution and degradation

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10(1), 19(1), 20, 21, 22, 23, 27, 28, 32, 40, 42, 43, 47, 70, 162(2), 165
  • Environmental Management and Co-ordination Act, 1999Sections 58, 59, 60, 61, 62, 63, 75
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 7, 8, 17, 18, 19, 20, 21, 22, 23, 24
  • Water ActSection 25
  • Evidence ActSection 3(4)
  • Environment and Land Court ActSection 13(2) and (3)
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice Rules, 2006as read with Clause 19 of the Transitional and Consequential Provisions

Cases cited (7)

  • Ken Kasinga v Daniel Kiplangat Kirui & 5 Others
    (2015) eKLR
  • Douglas Onyancha & 3 Others v Joseph Karanja Wamugi & 4 Others
    (2019) eKLR
  • Isaac Ngugi v Nairobi Hospital & 3 Others
    (2013) eKLR
  • Kenya Bus Services Ltd & 2 Others v The Attorney General & 2 Others
    (2005) eKLR
  • Teitiwnnang and Ariong & Others
    (1987) L.R.C Const 517
  • Bernard Murage v Fine Serve Africa Limited & 3 Others
    (2015) eKLR
  • Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others
    (2020) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13(2) and (3) of the Environment and Land Court Act

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, "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.