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ELCAllowedPetition No. E033 of 2021· [2021] KEELC 93 (KLR)

Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) [2021] KEELC 93 (KLR)

Environment and Land Court
2 December 2021
3,919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court stopped a Karen road upgrade because the developer skipped the required environmental impact assessment, showing easement works aren't exempt.

What this practically means

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Executive summary

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The Petitioner, owner of L.R. No. 13065 at Ololua Ridge-Karen, moved the Environment and Land Court by Notice of Motion dated 13th September 2021 seeking temporary conservatory orders to restrain the Respondent, Local Authorities Pension Trust Registered Trustees, from upgrading a 10-metre road over a 3-metre marram access easement on its land, felling indigenous trees, and excavating, without compliance with Articles 40, 42 and 69 of the Constitution. The Petitioner argued the easement served only two single-family dwellings and that the Respondent's development of over 30 residential units on its dominant land required an EIA and NEMA licence. The Respondent countered that the easement was 12 metres wide, created on sub-division of L.R. No. 6939 in 1970, and that easements are not projects requiring EIA under EMCA. Applying the Giella v Cassman Brown and Nguruman principles, and relying on Mrao v First American Bank for the definition of a prima facie case, Angote J found the Respondent had not complied with Article 69 of the Constitution and section 58 of EMCA before commencing the upgrade. Relying on Moffat Kamau v AActs Kenya Ltd, the court held that non-compliance with environmental procedures raises an assumption that the right to a clean environment is under threat, and that continued construction without an EIA would cause irreparable injury. The court granted the conservatory order pending the Petition and ordered the Respondent to pay the costs of the application.

Key legal issues

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01

Whether a prima facie case was established for a conservatory order

Holding

The Petitioner established a prima facie case with chances of success because the Respondent commenced the upgrading of the 12-metre road without compliance with Article 69 of the Constitution and section 58 of EMCA.

Reasoning

The court found it undisputed that an easement burdened the Petitioner's title, and that the Respondent was widening it from its original width without NEMA approval or EIA. Non-compliance with environmental procedures permits the inference that the right to a clean environment is threatened, satisfying the Mrao and Nguruman threshold of an apparently infringed right calling for rebuttal.

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02

Whether damages would be an adequate remedy

Holding

Continued construction without an EIA study report is likely to occasion the Petitioner irreparable injury not compensable by damages.

Reasoning

The court reasoned that implementation of a project such as a 3.5 Km road is likely to have a negative environmental impact, hence the requirement for an EIA study report. Construction in breach of statutory environmental safeguards threatened destruction of indigenous trees and environmental harm that money cannot restore, meeting the second Giella/Nguruman limb.

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03

Whether an EIA was required for the upgrade of the easement

Holding

An EIA study report and NEMA licence were required; the Respondent's claim that easements are exempt was rejected.

Reasoning

The court relied on the Second Schedule Rule 1(h) of EMCA covering local roads and access roads, section 58(2) EMCA and Regulation 4(1) of the EIA Regulations 2003, which prohibit implementing projects likely to have negative environmental impact before EIA approval. The upgrading to serve over 30 units exceeded the original easement user.

p. 5

Legal principles established

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  • Where procedures for the protection of the environment are not followed, an assumption may be drawn that the right to a clean and healthy environment is under threat.
  • Upgrading an access road to serve a large development requires an EIA study report, a NEMA licence and public participation before commencement.

Court orders

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  1. 1.Pending the hearing and determination of the Petition, a temporary conservatory order to forthwith prevent, stop, discontinue or restrain the Respondent, its servants, agents, officers, contractors or anyone claiming under it from cutting down trees, excavating or carrying out construction or road works including upgrading or constructing a 10 metre wide road on L.R. No. 13065 (original No. 6939/1 and 5830/9) at Ololua Ridge-Karen, Nairobi
  2. 2.The Respondent to pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 42, 69, 70
  • Environmental Management and Co-ordination ActSecond Schedule Rule 1(h); Section 58(1) and (2)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulation 4(1), 10(2)
  • Physical and Land Use Planning ActSection 57

Cases cited (9)

  • American Cyanamid Co. vs Ethicon Limited
    (1975) AC 396
  • Giella vs Cassman Brown
    (1973) EA 358
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Adrian Kamotho Njenga vs. Council of Governors & 3 others
    [2020] eKLR
  • Ken Kasing'a –v- Daniel Kiplagat & 5 Others
    (2015) eKLR
  • John Kabukuru Kibicho & Another –v- County Government of Nakuru & Others
    (2016) eKLR
  • Moffat Kamau & 9 Others vs. Actors Kenya Ltd & 9 Others
    [2016] eKLR
Jurisdiction invoked
Article 42 and 69 of the Constitution of Kenya, 2010 (environmental rights); Environment and Land Court original jurisdiction

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, "Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) [2021] KEELC 93 (KLR)", Case Analysis (2021). Petition No. E033 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/93/eng@2021-12-02

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