Robert Njenga & another v Sylvester Njihia Wanyoike & another; National Environment Management Authority(Interested Party) [2020] KEELC 1864 (KLR)
The bottom line
#Kenya's Environment and Land Court halted a wood treatment plant for operating without a valid EIA licence, confirming residents can sue without proving personal harm.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the petitioners
The petitioners have locus standi under Article 70 of the Constitution, Section 3(4) of EMCA and Article 258 of the Constitution
The court held that Article 70 allows any person alleging violation or threat to the right to a clean and healthy environment to seek redress without demonstrating loss or injury. Section 3(4) of EMCA similarly empowers any person to commence environmental action without showing personal loss, and Article 258 permits public-interest constitutional litigation.
Whether a prima facie case was established for conservatory orders
Yes - the respondents had no current and valid EIA licence for the wood pole treatment plant, so the petitioners demonstrated a prima facie case
The exhibited EIA licence of 30th January 2015 covered a different project (an assorted concrete workshop on plot 643 Kihoto Farm) and had expired after 24 months. The respondents did not deny operating the plant, and NEMA verified its existence and issued a cessation order. Absent a valid EIA licence, the threat to the environment was valid.
Application of the precautionary principle
The court deployed the precautionary principle to grant conservatory orders preventing potential environmental degradation
Given that the wood treatment operations use chemicals such as ACZA, ACA, CCA and Copper Naphthenale that generate hazardous waste, there is real danger to the environment and public. Section 3(5) of EMCA requires the court to be guided by sustainable development principles including the precautionary principle, justifying preventive intervention.
Whether the first respondent was wrongly joined
The objection was rejected; the first respondent's non-directorship was not proved and he did not disown association with the plant
The respondents' claim that the first respondent is not a director of the second respondent was unsupported by evidence from the companies' registry, and the first respondent did not swear an affidavit disowning association with the plant. NEMA verified the plant was run by the respondents.
Legal principles established
#- A party alleging threat to the right to a clean and healthy environment need not demonstrate personal loss or injury to establish locus standi
- Where there are threats of environmental damage, lack of full scientific certainty shall not be a reason for postponing preventive measures (precautionary principle)
- Undertaking a project using chemicals generating hazardous waste without subjecting it to the EIA process poses a real threat to the environment justifying conservatory orders
Court orders
#- 1.A conservatory order restraining the respondents, their staff, agents, servants and any other person acting on their instructions from continuing with any workmanship, installations, operations or construction works of the wood/pole treatment and concrete post plants on Kabazi/Kabazi block (Kihoto)/940/939/804/938 pending hearing and determination of the petition
- 2.The Officer Commanding Kirengero Police Station within Subukia Sub County ordered to enforce and ensure compliance with the Environmental Cessation and Restoration Order dated 17th February 2020 issued by NEMA
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Article 70 and Article 258 of the Constitution; Section 3 of EMCA (environmental jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Njenga & another v Sylvester Njihia Wanyoike & another; National Environment Management Authority(Interested Party) [2020] KEELC 1864 (KLR)", Case Analysis (2020). Petition dated 9th April 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1864/eng@2020-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.