Republic v National Environment Management Authority (NEMA) Exparte African Centre for Rights and Governance (ACRAG); County Government of Nakuru (Interested Party) [2021] KEELC 168 (KLR)
The bottom line
#The court found NEMA and Nakuru County failed to clean up the Karai dumpsite, renewed the restoration order, and will supervise compliance going forward.
What this practically means
#Executive summary
#Key legal issues
#Whether mandamus should issue against NEMA for failure to enforce the decree
Mandamus was refused in its literal form; the court found NEMA's intervention 'uninspired, timid and/or meek' but opted for deemed renewal of the existing Restoration Order plus compliance directions rather than a fresh order
The court found NEMA issued a Restoration Order on 25th September 2017 but failed to monitor compliance and slept on the EIA licence application for over three years. Both respondent and interested party were at fault. Rather than a second restoration order, the court deemed the existing one freshly issued and directed status reporting, inspection, and determination of the EIA licence within fixed timelines.
Whether the court could supervise implementation of its orders post-judgment
Yes - the court held this environmental case justified post-judgment supervision notwithstanding functus officio
The court acknowledged that on delivery of judgment it ordinarily becomes functus officio, but held that Article 69(2) of the Constitution places a duty on every person to cooperate with state organs to protect the environment, making post-judgment supervision appropriate where a decree found violation of Article 42 and its implementation invites court supervision.
Legal principles established
#- An authority that issues an Environmental Restoration Order is duty bound to superintend and ensure compliance and may employ lawful sanctions in case of failure to comply
- A court may undertake post-judgment supervision in environmental matters notwithstanding the functus officio principle, given the constitutional duty to protect the environment
Court orders
#- 1.The Environmental Restoration Order issued by the Respondent to the interested party on 25th September 2017 be deemed to have been issued on the date of delivery of this judgment, 16th December 2021
- 2.The interested party shall within 21 days prepare and file a status report respecting compliance with the terms of the Environmental Restoration Order dated 25th September 2017 detailing the actions undertaken and when
- 3.The Respondent (NEMA) to inspect the dumpsite within 30 days and file a report in court on the state of the dumpsite having regard to the Environmental Restoration Order dated 25th September 2017
- 4.The Respondent (NEMA) to consider and evaluate the EIA project report and determine whether to issue or not to issue a licence, and any conditions, within 60 days, and file its determination in court
- 5.The respondent and the interested party to bear the costs of the application, awarded to the ex-parte applicant on a 50-50 basis
- 6.The matter be mentioned on 15th March 2022 to confirm compliance, with all parties to attend
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (ELC) to enforce the decree in Nakuru ELC Petition No.50 of 2012; orders under sections 87, 88, 111 of EMCA and Articles 42 and 69(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Environment Management Authority (NEMA) Exparte African Centre for Rights and Governance (ACRAG); County Government of Nakuru (Interested Party) [2021] KEELC 168 (KLR)", Case Analysis (2021). Nakuru Judicial Review Application (Motion dated 9th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/168/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.