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ELCDismissedNot stated in the judgment provided (Kisumu ELC Petition; a prior withdrawn petition was Kisumu ELC Petition No. 32 of 2017)· [2020] KEELC 3743 (KLR)

Rose Juma Nyanjom & 3 others v County Government of Kisumu & 2 others [2020] KEELC 3743 (KLR)

Environment and Land Court
6 February 2020
AOA.O. Ombwayo
3,772 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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Kisumu's Environment and Land Court dismissed a challenge to the Kachok dumpsite rehabilitation because the county had a valid environmental licence and followed required procedures.

What this practically means

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Executive summary

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The Petitioners challenged the award of a tender of approximately Kshs. 99,250,000 for the rehabilitation of the Kachok dumpsite using inert waste to fill the abandoned Kisumu Concrete quarry at Mamboleo, alleging violation of the right to a clean and healthy environment under Article 42 of the Constitution. They contended that no NEMA EIA license had issued, that there was no public participation, that the Kenya Civil Aviation Authority was never consulted despite the quarry lying within 13km of Kisumu International Airport and on a flight path, and that dumping in the water-filled quarry risked polluting the water table, River Kibos and Lake Victoria. They sought declarations, cancellation of the contract, conservatory and prohibitory orders. The Respondents asserted that only inert waste was involved, that NEMA licensed the project with conditions, that KAA conducted a risk assessment, and that public participation was documented. The court framed four issues. On exhaustion, it held that although most issues fell under the Complaints Committee and Tribunal under EMCA, prayers (d), (e) and (f) fell within the ELC's jurisdiction, making it efficient to hear all issues in one forum. On the EIA, NEMA had issued a license on 30th January 2018 with conditions and public participation was documented; the Petitioners led no evidence of invalidity. On aviation, the court held the Civil Aviation Act contemplates consultation rather than approval for wildlife-hazard developments, and KAA's report of 24th November 2017 made its aeronautical study recommendation regarding the alternative site, not the quarry. Finding no demonstrated breach of EMCA, the Civil Aviation Act or Article 42, the court dismissed the petition. No costs order appears on the face of the judgment.

Key legal issues

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01

Exhaustion of administrative remedies under EMCA

Holding

The petition was properly before the court because some prayers fell outside the Complaints Committee and Tribunal mandate and within ELC jurisdiction.

Reasoning

Although most issues fall under the Complaints Committee (Section 32 EMCA) and the Tribunal (Section 129 EMCA), prayers (d), (e) and (f) fall within the ELC's jurisdiction. Since the court can handle all issues at once, hearing them in one forum is most efficient under Article 159(1).

p. 4
02

Whether the project proceeded without an EIA license

Holding

NEMA issued an EIA license on 30th January 2018 with conditions; Petitioners proved no invalidity, so Section 58 EMCA and Article 69(1) were complied with.

Reasoning

The evidence showed an EIA study conducted, reviewed by NEMA and licensed subject to conditions, plus a public participation attendance register dated 23rd November 2017. Petitioners adduced no contrary expert evidence showing the license was invalid, revoked, suspended or cancelled.

p. 4
03

Whether KCAA/KAA approval was required and obtained

Holding

Only consultation, not approval, is required for wildlife-hazard-generating developments; KAA conducted a risk assessment and issued recommendations by letter dated 24th November 2017.

Reasoning

Sections 9, 56, 57 of the Civil Aviation Act and 8, 14, 15 of the KAA Act mandate protection of flight paths, but for wildlife hazards the regime is consultative under Regulations 65(6)-(8) of the Civil Aviation (Aerodromes) Regulations 2013. KAA carried out the risk assessment and its aeronautical study recommendation referred to the alternative site, not the quarry project.

p. 5
04

Whether Petitioners demonstrated breach of EMCA and the Civil Aviation Act and violation of Article 42

Holding

No breach demonstrated; the petition was dismissed.

Reasoning

Respondents obtained the EIA license and followed KCAA/KAA recommendations and conditions. Petitioners failed to show breach of any condition or that the project would violate the right to a clean and healthy environment under Article 42, while the 3rd Respondent detailed mitigation measures.

p. 5

Legal principles established

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  • The Civil Aviation Act contemplates a consultative process, not an approval/licensing mechanism, regarding wildlife hazards from dumpsites near aerodromes.
  • A party alleging environmental violation must lead evidence demonstrating invalidity of an issued EIA license; where an EIA study was conducted and licensed with conditions, Section 58 EMCA and Article 69(1) are complied with.
  • Where issues fall partly within statutory complaint mechanisms and partly within the High/EL Court's jurisdiction, efficiency favours determination in a single forum.

Court orders

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  1. 1.The petition is dismissed

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 42, 43, 69(1), 70(2)(a), 159(1)
  • Environmental Management and Co-ordination Act 1999 (EMCA)Sections 3, 32, 58, 59, 73, 87, 88, 129; Schedule 2
  • Environmental Management and Coordination (Waste Management) Regulations 2006Not specified
  • Civil Aviation ActSections 9, 56, 57
  • Kenya Airports Authority ActSections 8, 14, 15 (including 15(3))
  • Civil Aviation (Aerodromes) Regulations 2013Part VII, Regulation 65(6)-(8)

Cases cited (4)

  • Kenya Civil Aviation Authority & another v Timothy Nduvi Mutungi
    [2017] eKLR
  • County Government of Kitui v Sonata Kenya Limited & 2 others
    [2018]
  • African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha
    [2017] eKLR
  • Kenya Bus Services Ltd & 2 others v The Attorney General & 2 others
    [2005] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over environmental claims under EMCA and Article 42/70 of the Constitution; Article 159(1) cited for hearing all issues in one forum

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, "Rose Juma Nyanjom & 3 others v County Government of Kisumu & 2 others [2020] KEELC 3743 (KLR)", Case Analysis (2020). Not stated in the judgment provided (Kisumu ELC Petition; a prior withdrawn petition was Kisumu ELC Petition No. 32 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3743/eng@2020-02-06

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