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ELCPartially AllowedConstitution Petition No. 13 of 2018· [2020] KEELC 3632 (KLR)

Hassan Ali Kassim & 2 others v Hassan Abdi Ali & 5 others [2020] KEELC 3632 (KLR)

Environment and Land Court
12 February 2020
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The three petitioners, residents of Taqwa Residential Area in Isiolo County, petitioned the Environment and Land Court at Meru alleging that the 1st and 2nd Respondents' milk processing plant on Plot No. 314 violated their constitutional right to a clean and healthy environment under Article 42. They sought a declaration of violation, a permanent injunction against the plant's operation, cancellation of NEMA licences, and general damages. NEMA did not oppose the petition, having failed to obtain emission and discharge licences documentation from the operators; the claim against the Attorney General was withdrawn. The 4th and 5th Respondents (County Government of Isiolo and its Physical Planning Officer) contended they discharged their statutory duties, issuing an enforcement notice, and that they were wrongly sued. The court, hearing the petition by written submissions, framed a single issue: whether the prayers were merited. It allowed the declaration of violation, adopting its earlier interlocutory ruling of 10/7/2019. It granted a permanent injunction conditioned upon the 1st and 2nd Respondents complying with statutory standards set by the regulatory respondents, noting their defiance of the NEMA compliance notice and disengagement from proceedings. It refused cancellation of the EIA licence, which had expired by its own terms on 25/4/2018, observing that challenges to EIA licences lie in the first instance with the National Environmental Tribunal. It also refused general damages because no resident testified and the documents relied on were prescription notes rather than medical reports. The 1st and 2nd Respondents were condemned to pay the costs of the suit.

Key legal issues

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01

Violation of the right to a clean and healthy environment under Article 42

Holding

Declared violated and/or threatened by the 1st and 2nd Respondents' operation of the milk processing plant in a residential area

Reasoning

The court adopted its earlier analysis in its ruling of 10/7/2019 (paragraphs 20-33) and found that residents of Taqwa area had suffered from the operation of the plant, which had defied NEMA compliance notices. NEMA itself did not oppose the petition, having been denied emission and discharge licences documentation. The declaration sought in Prayer A was therefore allowed.

p. 2
02

Permanent injunction against the milk processing plant

Holding

Granted, but conditioned on the 1st and 2nd Respondents complying with statutory standards set by the 3rd to 5th Respondents

Reasoning

The 1st and 2nd Respondents defied a compliance notice from NEMA and showed no interest in engaging NEMA or the County Government to regularise their position despite being given a window to do so in the interlocutory ruling. The court found the prayer for a permanent injunction merited unless and until they meet the regulators' conditions.

p. 3
03

Cancellation of EIA licence

Holding

Refused; the licence had expired and any challenge lay with the National Environmental Tribunal

Reasoning

The EIA licence dated 25/4/2016 was expressly valid for 24 months, thus expiring on 25/4/2018, leaving nothing to cancel. Further, the court held that challenges to EIA reports and licences lie in the first instance with the National Environmental Tribunal, citing Luo Council of Elders and Taib Investments, and would have referred the matter to the EMCA dispute resolution mechanisms even had the licence been valid.

p. 3
04

General damages for environmental violation

Holding

Refused for failure of proof

Reasoning

The case was heard by written submissions at the petitioners' request, so no affected resident testified. The documents relied on as medical reports were merely prescription notes and could not support an assessment of damages. The court held the petitioners ought to have adduced sufficient evidence geared towards proper assessment of damages, and the claim failed.

p. 3

Legal principles established

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  • Challenges to EIA reports and the issuance of EIA licences lie in the first instance with the National Environmental Tribunal
  • A claimant seeking general damages for environmental violation must adduce evidence sufficient for assessment of damages

Court orders

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  1. 1.A declaration that the petitioners' constitutional right to a clean and healthy environment under Article 42 has been violated and/or is threatened to be violated by the 1st and 2nd Respondents
  2. 2.A permanent injunction restraining the 1st and 2nd Respondents from carrying out any activities on, constructing on, alienating or otherwise interfering with the Milk Processing Plant on Plot No. 314 Taqwa Residential Area Isiolo County unless and until they comply with the statutory compliance standards set by the 3rd to 5th Respondents
  3. 3.The 1st and 2nd Respondents condemned to meet the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 42
  • Constitution of KenyaArticle 70
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) (Practice and Procedure) Rules
  • Environmental Management and Co-ordination Act
  • Physical Planning Act
  • Public Health Act

Cases cited (2)

  • Luo Council of Elders and 7 Others Vs County Government of Bomet and 24 Others
    (2018) eKLR
  • Taib Investments Limited Vs Fahim Salim
    (2016) eKLR
Jurisdiction invoked
Articles 42 and 70 of the Constitution of Kenya; Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) (Practice and Procedure) Rules; Environmental Management and Co-ordination 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, "Hassan Ali Kassim & 2 others v Hassan Abdi Ali & 5 others [2020] KEELC 3632 (KLR)", Case Analysis (2020). Constitution Petition No. 13 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3632/eng@2020-02-12

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