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ELCPartially AllowedPetitioners' Notice of Motion dated 22nd July, 2021; Respondents' Notice of Motion dated 13th August, 2021; Notice of Preliminary Objection dated 25th August, 2021 (case number not stated in judgment)· [2021] KEELC 848 (KLR)

Nabatkhanu Karim H.P & 12 others v Hwaock IM & another; National Environment Management Authority (Interested Party) [2021] KEELC 848 (KLR)

Environment and Land Court
16 November 2021
7,018 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 Nairobi court stopped a school from opening in a residential estate because the owners skipped environmental assessment and public participation.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (S. Okong'o, J) determined three interlocutory matters: the Petitioners' Notice of Motion dated 22nd July, 2021 seeking a conservatory injunction to stop the 1st Respondent from establishing a school on house No. 49, L.R. No. 209/8349, Paradise Valley Estate, Kyuna; the Respondents' Notice of Motion dated 13th August, 2021 seeking to set aside ex parte interim orders of 26th July, 2021; and a preliminary objection arguing lack of jurisdiction for want of exhaustion of statutory remedies and absence of constitutional issues. The court dismissed the preliminary objection, holding that the Liaison Committees under the Physical and Land Use Planning Act, 2019 and the National Environment Tribunal have no jurisdiction over violations of the right to a clean and healthy environment, and that the petition raises genuine constitutional issues under Articles 42 and 70. On the merits of the conservatory order, the court found a prima facie case: the development falls within the Second Schedule of EMCA, yet no environmental impact assessment study was evidenced, and there was no proof of publication of the change of user application as public participation required. The court further held that in environmental rights petitions, applicants need not prove irreparable harm, applying Article 70(3) and section 3(4) of EMCA. The Respondents' application to set aside the interim orders was dismissed as overtaken by events and lacking merit. A conservatory injunction was issued restraining the school establishment and related construction pending compliance with public participation requirements, with costs of all three applications awarded to the Petitioners.

Key legal issues

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01

Whether the petitioners were required to exhaust statutory dispute resolution mechanisms before approaching the court

Holding

No - the petition raises violation of the constitutional right to a clean and healthy environment, which the Liaison Committee and NET cannot determine.

Reasoning

The court held that the petitioners were not challenging the validity of the change of user approval per se, but the absence of public participation and the threatened violation of their right to a clean and healthy environment. Section 3 of EMCA and Article 70 confer a direct right of access to the Environment and Land Court for such violations, so the exhaustion argument in the preliminary objection failed.

p. 6
02

Whether the petition raises constitutional issues or is a disguised civil dispute

Holding

The petition raises constitutional issues - alleged threatened violation of the right to a clean and healthy environment.

Reasoning

Applying C N M v W M G and the Fredericks test, the court held that disputes as to whether conduct is inconsistent with the Constitution are constitutional matters. Since the petitioners alleged threatened breach of Articles 42 and 69 and non-compliance with EMCA, the second limb of the preliminary objection also failed wholly.

p. 6
03

Whether the development required an environmental impact assessment study

Holding

Yes - the project falls within the Second Schedule of EMCA and no EIA study or exemption was evidenced.

Reasoning

The Second Schedule covers schools and activities out of character with surroundings. The Respondents admitted the development and produced only change of user and renovation approvals, which do not exempt them from section 58 of EMCA. Having produced no EIA study, they failed to discharge the burden of proving no threat of environmental harm, establishing a prima facie case.

p. 8
04

Whether public participation preceded the change of user approval

Holding

The Respondents failed to prove publication of the notice as required; the petitioners' contention of no public participation was well founded.

Reasoning

Sections 58(7) and (8) of the Physical and Land Use Planning Act, 2019 require public notification of development applications. Apart from the approval itself, no newspaper advertisement or posted notice was placed before the court. Public participation is a factual matter requiring evidence and cannot be presumed from the administrative nature of the approval.

p. 8
05

Whether the petitioners had to demonstrate irreparable harm to obtain the conservatory order

Holding

No - in environmental rights enforcement, Article 70(3) and section 3(4) of EMCA dispense with proof of loss or injury.

Reasoning

The court held that demonstrating likely violation of the constitutional right to a clean and healthy environment is sufficient harm. Section 3(4) of EMCA confers capacity to sue without proof of personal loss, provided the action is not frivolous, vexatious or an abuse of process. The conservatory order was therefore granted on the prima facie case and real danger of rights violation.

p. 9
06

Whether the Respondents' application to set aside the interim orders of 26th July, 2021 should be allowed

Holding

Dismissed - the application was overtaken by events and no valid ground for setting aside was shown.

Reasoning

The application sought setting aside of ex parte interim orders pending inter-partes hearing of the petitioners' application, which had now been heard. The court was also not persuaded that the petitioners obtained the orders through concealment of material facts. No valid ground justified setting aside.

p. 9

Legal principles established

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  • The Liaison Committees under the Physical and Land Use Planning Act, 2019 and the National Environment Tribunal have no jurisdiction to determine violations of the right to a clean and healthy environment; the Environment and Land Court may be approached directly under Article 70 and section 3 of EMCA.
  • Public participation in the grant of change of user approval is a matter of fact to be proved by evidence; a court cannot presume it merely because the act was administrative.
  • An applicant enforcing the right to a clean and healthy environment need not demonstrate loss or injury.
  • Once a petitioner establishes that a development is out of character with its surroundings and falls within the Second Schedule of EMCA, the burden shifts to the developer to prove no negative environmental impact.

Court orders

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  1. 1.The Respondents' Notice of Motion application dated 13th August, 2021 and Notice of Preliminary Objection dated 25th August, 2021 are dismissed
  2. 2.A conservatory order of injunction issued restraining the Respondents and anyone claiming under them from establishing, operating or carrying on any school and school-related activities, including construction of school facilities, on house No. 49 on L.R. No. 209/8349 in Paradise Valley Estate, Kyuna, Nairobi, or making infrastructural changes such as opening more gates or parking facilities, without prior compliance with public participation requirements under Part VI of EMCA, the Fair Administrative Actions Act, 2015 and the Constitution, pending hearing of the petition
  3. 3.Costs of the three applications awarded to the Petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 42, 69, 70(1)-(3)
  • Environment Management and Coordination Act, 1999section 3 (including 3(4)), Part VI, section 58(1)-(2), Second Schedule
  • Physical Planning and Land Use Act, 2019section 75 (cited by Respondents); sections 56, 58(7)-(8) (relied on by Respondents)
  • Fair Administrative Actions Act, 2015Part VI reference in orders (as invoked by Petitioners)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulation 17
  • Land Actsections 24, 25
  • Environment and Land Court Actsection 18(4)
  • Civil Procedure Actgeneral reference in preliminary objection

Cases cited (16)

  • Kenya Association of Manufacturers & 2 others v Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others
    [2017] eKLR
  • J. S Muiru & 2 others v Tigoni Treasures Limited & 3 others
    [2015] eKLR
  • Ken Kasing'a v Daniel Kiplagat Kirui & 5 others
    [2015] eKLR
  • Joseph Leboo & 2 others v Director Kenya Forest Services & another
    [2013] eKLR
  • Centre For Rights Education And Awareness (CREAW) & 7 others v Attorney General
    [2011] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd.
    [1969] E.A 696
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Whitehorse Investments Ltd. v Nairobi City County
    [2019] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
  • Uhuru Muigai Kenyatta v Nairobi Star Publications Limited
    [2013] eKLR
  • Shainaz Jamal & 9 Others v Zahir Abdulrasul Manji & Another
    [2017] eKLR
  • Mahmood Shariff Ali & 10 others v Safaricom Limited
    [2018] eKLR
  • C N M v W M G
    [2018] eKLR
  • Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others
    (2002) 23 ILJ 81(CC)
  • S vs. Boesak
    (2001)(1)SA 912(CC)
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution; sections 3 and 58 of the Environment Management and Coordination Act, 1999; Articles 42 and 70 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nabatkhanu Karim H.P & 12 others v Hwaock IM & another; National Environment Management Authority (Interested Party) [2021] KEELC 848 (KLR)", Case Analysis (2021). Petitioners' Notice of Motion dated 22nd July, 2021; Respondents' Notice of Motion dated 13th August, 2021; Notice of Preliminary Objection dated 25th August, 2021 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/848/eng@2021-11-16

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