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ELCPartially AllowedNakuru Judicial Review Application (Motion dated 9th December 2020)· [2021] KEELC 168 (KLR)

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)

Environment and Land Court of Kenya
16 December 2021
4,589 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This judicial review application sought to enforce the decree issued on 8th June 2017 in Nakuru ELC Petition No.50 of 2012 (ACRAG & others -vs- Naivasha Municipal Council), in which Munyao J declared a violation of the petitioners' Article 42 right to a clean and healthy environment arising from the operation of the Kayole/Karai dumpsite and issued directives including licensing of the dumpsite by NEMA or, failing licence application within 14 days, cessation of dumping and restoration of the site within 90 days. The ex-parte applicant sought an order of mandamus compelling NEMA to issue an Environmental Restoration Order stopping dumping and restoring the site. NEMA responded that it had issued a Restoration Order on 25th September 2017 and entered a compliance plan, making a second order superfluous. The interested party, County Government of Nakuru, asserted compliance measures including an EIA application, engagement of waste service providers and expenditure of Kshs.8 million. The court held both NEMA and the County at fault for weak implementation and lack of follow-up, but declined to order a second restoration order. Instead, it deemed the 2017 Restoration Order freshly issued as of 16th December 2021 and directed the County to file a compliance status report within 21 days, NEMA to inspect the dumpsite within 30 days and file a report, and NEMA to determine the EIA licence application within 60 days. Costs were awarded to the ex-parte applicant on a 50-50 basis against the respondent and interested party. The court, invoking Article 69(2), retained post-judgment supervision, with a mention on 15th March 2022.

Key legal issues

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01

Whether mandamus should issue against NEMA for failure to enforce the decree

Holding

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

Reasoning

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.

p. 4
02

Whether the court could supervise implementation of its orders post-judgment

Holding

Yes - the court held this environmental case justified post-judgment supervision notwithstanding functus officio

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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. 6.The matter be mentioned on 15th March 2022 to confirm compliance, with all parties to attend

Authorities

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Legislation

  • Constitution of KenyaArticle 42
  • Constitution of KenyaArticle 69(1) and 69(2)
  • Environment Management and Coordination Act (EMCA)Sections 87, 88, 89
  • Environment Management and Coordination Act (EMCA)Section 111
  • Environment Management and Coordination Act (EMCA)Sections 68 and 69

Cases cited (4)

  • Shah -vs- Attorney General (No.3)
    (1970) EA 543
  • Kenya Examination Council -vs- Republic Exparte Geoffrey Gathenji Njoroge & 9 others
    (1997) eKLR
  • Rep -vs- Attorney General & Another Exparte Ongata Works Ltd
    (2016) eKLR
  • Republic -vs- Governor Kijiando County ex-parte Gabriel Gachigo Marigi
    (2018) eKLR
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

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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, "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.