Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) [2021] KEELC 93 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a prima facie case was established for a conservatory order
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.
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.
Whether damages would be an adequate remedy
Continued construction without an EIA study report is likely to occasion the Petitioner irreparable injury not compensable by damages.
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.
Whether an EIA was required for the upgrade of the easement
An EIA study report and NEMA licence were required; the Respondent's claim that easements are exempt was rejected.
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.
Legal principles established
#- 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
#- 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.The Respondent to pay the costs of the application
- Jurisdiction invoked
- Article 42 and 69 of the Constitution of Kenya, 2010 (environmental rights); Environment and Land Court original jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.