Ahmed Bashir Abdi & Abdinoor Ahmed Magan v County Government of Wajir & 2 others; Abdi Ali Bashir & 3 others (Interested Parties) [2021] KEELC 1397 (KLR)
The bottom line
#Kenya's Environment and Land Court revoked a medical waste incinerator licence because Wajir County skipped genuine public participation and a full environmental study.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the petition
The Court has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act; the petition met the Anarita Karimi Njeru precision threshold
Article 162(2)(b) confers jurisdiction over environment and land disputes, and Section 13 of the ELC Act covers environmental planning and protection. The petition cited the violated constitutional provisions, the manner of violation and remedies sought, satisfying the reasonable precision standard in Anarita Karimi Njeru as restated in Mumo Matemu.
Defect of the interested party's affidavit and expungement of annexures
The prayer for expungement failed; no prejudice was shown and the photos were in any event not attached
The objection was raised only at submissions stage without leave, denying the interested party a chance to be heard. The photos though marked were not attached, so nothing was before the Court to expunge, and the Respondent did not dispute authenticity.
Violation of the right to property (Article 40)
No violation established; that head of the petition was dismissed
The petitioner alleged the incinerator was on his unsurveyed Plot R6311, but the Respondents showed it was installed at the gazetted Wajir Manyatta TB Health Centre, and the interested party also associated with that position. The petitioner's ownership claim on a 2016 receipt was untenable.
Adequacy of the EIA process and the licence
The licence was irregularly issued; the report's own admission of adverse impacts required a full EIA study under Regulation 10
The project report itself acknowledged that medical waste incinerators are a leading source of dioxins and mercury and cited alternatives such as autoclaving. Given the adverse effects outweighing benefits, NEMA ought to have required a full EIA study rather than issuing a licence on the project report alone.
Public participation
Public participation was inadequate and did not meet constitutional standards
Only 27 individuals out of a county population of 852,968 were interviewed, only questionnaires were used, no barazas or engagement with local authorities were shown, persons over 50 were excluded, and only eight questionnaires were annexed. Applying Mui Coal Basin's intentional inclusivity standard, this fell far short.
Potential harm from the incinerator
The incinerator poses potential harm to residents if proper measures are not put in place prior to implementation
The report conceded dioxin, mercury and hazardous ash risks and identified feasible alternatives. Though mitigation measures existed, the Court found the adverse effects outweighed the benefits of the project to the County's waste management function.
Legal principles established
#- Public participation must show intentional inclusivity and diversity; token or inadequate consultation fails constitutional muster
- Where a project report discloses adverse impacts without sufficient mitigation, the Authority must require a full environmental impact assessment study
Court orders
#- 1.A declaration that the 1st and 2nd Respondents' acts are in contravention of Article 42 of the Constitution, 2010
- 2.A declaration that the violation of Article 42 has resulted in a denial of the right to a clean and healthy environment to the petitioners and residents of Hodhan Location Wajir County
- 3.An Independent Environmental Impact Assessment study by an expert appointed by the 3rd Respondent on the feasibility of the project against other alternatives within three (3) months of the judgment
- 4.Public participation of the study be undertaken and the residents of Hodhan community be involved in every stage of the process
- 5.The Environmental Assessment License issued by the 3rd Respondent be and is hereby revoked
- 6.The 1st Respondent to pay the costs of this petition
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed Bashir Abdi & Abdinoor Ahmed Magan v County Government of Wajir & 2 others; Abdi Ali Bashir & 3 others (Interested Parties) [2021] KEELC 1397 (KLR)", Case Analysis (2021). Petition No 4 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1397/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.