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ELCPartially AllowedConsolidated Petition Nos. 8 and 9 of 2020 (Nyeri)· [2021] KEELC 617 (KLR)

Joseph Gachihi Ngugi & 2 others v County Government of Nyeri & 3 others [2021] KEELC 617 (KLR)

Environment and Land Court of Kenya
2 December 2021
JOJ. O. Olola
3,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nyeri residents won their case against the Gikeu dumpsite, but instead of closing it, the court ordered the county to clean it up under NEMA supervision.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (J. O. Olola, J) concerns consolidated Petitions Nos. 8 and 9 of 2020, in which three Petitioners, residents of Karima Ward in Othaya Sub-County, sought interim orders of prohibition and injunction restraining the County Government of Nyeri and its officers from further dumping waste at the Gikeu dumpsite pending the hearing of their petitions alleging violation of the right to a clean and healthy environment under Article 42 of the Constitution. The Petitioners contended that the dumpsite, operational for decades and covering about 0.69 Ha, had been overloaded with waste trucked in from other parts of Nyeri County, managed negligently so that waste spilled onto roads, private property and drainage systems, and contaminated water sources including wells and the River Thuti, causing respiratory illness, all without public participation or an environmental impact study. The County Government denied negligent management, asserted the site was the only dumpsite serving Othaya Sub-County, and pointed to engagement with NEMA, an Environmental Audit and EIA, and a statutory Improvement Notice it had agreed to comply with, while planning conversion to a Waste Transfer Station and a sanitary landfill. NEMA conceded the site had operated as an open dumpsite with negative impacts. The court held the orders sought were conservatory in character, and that the Petitioners had made out a prima facie case with likelihood of success and risk of prejudice. However, because the dumpsite is the only one serving the Sub-County, a prohibitory order would halt waste collection for the entire area and would not serve the public interest. The court declined the prohibition and instead ordered immediate compliance with the NEMA Improvement Notice of 9th September 2020 and a joint compliance report to the court within 60 days, with costs to the Petitioners.

Key legal issues

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01

Whether the Petitioners established a prima facie case for conservatory relief

Holding

Yes - the Petitioners, residents near the dumpsite, established a prima facie case with likelihood of success and risk of prejudice from threatened violation of their right to a clean and healthy environment

Reasoning

The Petitioners reside near the Gikeu dumpsite and gave uncontroverted evidence of waste spilling onto roads, private property and drainage, foul smoke, and respiratory illness among residents. The 4th Respondent (NEMA) tacitly admitted the problem, having run the site as an open dumpsite causing negative impacts, and issued the 1st Respondent with a Statutory Improvement Notice which the 1st Respondent agreed to abide by. These admissions supported a prima facie case.

p. 5
02

Whether the prohibition/injunction orders sought should issue

Holding

No - despite the prima facie case, the orders sought would not serve the public interest because the dumpsite is the only one serving Othaya Sub-County

Reasoning

Waste is generated daily within the Sub-County and must be deposited somewhere. Prohibiting delivery of waste at Gikeu would stop waste collection for the entire Sub-County, prejudicing residents more than the alleged violations. The court instead leveraged the NEMA improvement order, directing compliance and a compliance report within 60 days, thus supervising remediation rather than shutting the site.

p. 5
03

Nature of the reliefs sought in environmental constitutional petitions

Holding

The orders sought, though framed as prohibition/injunction, are properly characterised as conservatory orders under the constitutional scheme

Reasoning

Relying on the Supreme Court's pronouncement in Munya v Kithinji, the court distinguished conservatory orders from interlocutory injunctions: the former bear a public-law connotation and are granted on the inherent merit of a case with regard to public interest and constitutional values, not on the private-law tests of irreparable harm and probability of success. This characterisation shaped the court's approach to the test applicable.

p. 4

Legal principles established

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  • Orders of the kind sought in environmental constitutional petitions are conservatory orders bearing a public-law connotation, to be granted on the merits bearing in mind public interest and constitutional values, not on interlocutory injunction principles
  • A party seeking a conservatory order need only demonstrate a prima facie case with likelihood of success and real danger of prejudice from the violation or threatened violation of the Constitution

Court orders

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  1. 1.The 1st Respondent is ordered to immediately comply with the Statutory Improvement Notice dated 9th September, 2020 issued by the 4th Respondent
  2. 2.Both the 1st and 4th Respondents to submit a Report to the court within 60 days on the status of compliance with the directive
  3. 3.The Petitioners shall have the costs of this application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 42; Article 43(1)(d); Article 70; Article 70(2)(a); Article 176; Part 2, Fourth Schedule (Section 2(9))
  • Environmental Management and Co-ordination Act, 1999 (EMCA)Section 3; Section 9
  • Public Health Act
  • Local Government Act (Cap. 265) (repealed)Section 12; Section 160(a)
  • County Governments Act, 2012

Cases cited (2)

  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Centre for Rights Education and Awareness (CREAW) and 7 Others vs The Attorney General
    (2011) eKLR
Jurisdiction invoked
Article 70 of the Constitution of Kenya 2010 (enforcement of environmental rights under Article 42)

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, "Joseph Gachihi Ngugi & 2 others v County Government of Nyeri & 3 others [2021] KEELC 617 (KLR)", Case Analysis (2021). Consolidated Petition Nos. 8 and 9 of 2020 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/617/eng@2021-12-02

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