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ELCPartially AllowedConstitutional Petition No 43 of 2019· [2021] KEELC 2235 (KLR)

Odando & another (Suing on their Own Behalf and as the Registered Officials of Ufanisi Centre) v National Environmental Management Authority & 2 others; County Government of Nairobi & 5 others (Interested Parties) (Constitutional Petition 43 of 2019) [2021] KEELC 2235 (KLR)

Environment and Land Court
15 July 2021
KBK. Bor
15,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~63 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered the State to clean up the Nairobi and Athi Rivers and shut down the Dandora dumpsite, confirming citizens can sue over pollution without proving personal harm.

What this practically means

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Executive summary

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The Petitioners, officials of Ufanisi Centre in Korogocho, filed a class-action constitutional petition alleging that NEMA, the Cabinet Secretaries for Environment and for Water and Sanitation, and six county governments had violated Articles 10, 26, 29, 42, 43, 47, 69 and 232 of the Constitution through rampant air pollution from the Dandora dumpsite and water pollution of the Nairobi and Athi Rivers. They sought declarations of violation, permanent conservatory orders compelling adoption of the precautionary principle, restoration of the rivers, closure of polluters, removal of encroaching structures and compensation of Kshs. 70 billion for an estimated 7 million residents. The Respondents admitted the pollution but outlined remedial measures, contending they were addressing it at their own pace and that the Petitioners had not proved their case or specified measures under the precautionary principle. The court held that the Respondents had violated the Petitioners' rights under Articles 42 and 43; that the State, not citizens, bears the primary duty to eliminate polluting processes; that the precautionary principle applies without full scientific certainty and without prior public participation; and that a claimant need not prove personal injury or a prima facie case. Finding 'permanent conservatory orders' misconceived since conservatory orders are interim, the court issued structural interdicts: identification of dangerous materials within 30 days, decommissioning of Dandora dumpsite within six months, clean-up of the rivers from source to Malindi, quarterly water-quality reports, public participation and awareness programmes. Class compensation was refused; only the two Petitioners were awarded Kshs. 10,000 each, plus costs against the Respondents.

Key legal issues

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01

Violation of the right to a clean and healthy environment

Holding

The Respondents violated the Petitioners' rights under Articles 42 and 43 by failing to eliminate processes causing air pollution from Dandora dumpsite and water pollution of Nairobi and Athi Rivers

Reasoning

The Respondents admitted pollution existed. NEMA's measures, though laudable, did not stop the activities causing pollution upstream and downstream, and no timeline was given for cleaning the whole river. NEMA, as principal instrument of government under Section 9 of EMCA, had not discharged its statutory mandate of anticipating, preventing and attacking the causes of environmental degradation.

p. 25
02

Allocation of responsibility for environmental protection between State and citizens

Holding

The State bears the bigger burden; citizens' role is to cooperate with State organs

Reasoning

Article 69(1) places broad environmental obligations on the State, with citizens brought in only through the encouragement of public participation. Article 69(2) obliges every person to cooperate with State organs. The Fourth Schedule assigns protection of the environment and water to the National Government and solid waste and air pollution control to County Governments.

p. 26
03

Application of the precautionary principle

Holding

The principle applies where serious or irreversible threats exist even without full scientific certainty; the onus lay on NEMA to prove it had addressed the causes of degradation

Reasoning

EMCA's definition mirrors Principle 15 of the Rio Declaration. The Petitioners' evidence of pollution and disease, coupled with the Respondents' admission of pollution, sufficed to justify precautionary action. The court endorsed the Vellore Citizen Welfare Forum conditions, including shifting the burden of proof to the polluter, and rejected the AG's argument that public participation must precede enforcement of the principle.

p. 28
04

Appropriate remedies: conservatory orders vs structural interdict

Holding

The sought 'permanent conservatory orders' were misconceived as conservatory orders are interim; the court instead issued structural interdicts with periodic compliance reporting

Reasoning

Conservatory orders preserve the substratum of a case pending determination and cannot encompass final disposal orders. Given that ridding the rivers of pollution cannot be done instantaneously, a continuing mandamus requiring reports every four months gives effect to Article 70(2) of the Constitution.

05

Compensation for the class

Holding

Class compensation of Kshs. 70 billion refused for want of proof; only the two Petitioners awarded Kshs. 10,000 each

Reasoning

The Petitioners did not prove the number of affected persons or that class members were directly affected. Only Wilson Yata signed the consent authorising affidavits. The court can only order compensation to specific persons whose details appear in the suit.

p. 33

Legal principles established

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  • The State and its agencies carry the bigger constitutional burden of eliminating processes and activities that pollute the environment; the citizens' duty is merely to cooperate
  • The precautionary principle applies even in the absence of full scientific certainty linking pollution to disease, and shifts the onus to the State/polluter to show it anticipated, prevented and addressed the causes of environmental degradation
  • Public participation is not a precondition to the court's enforcement of the precautionary principle under Article 70 of the Constitution
  • A claimant alleging breach of the right to a clean and healthy environment need not demonstrate personal injury, loss or a prima facie case with probability of success
  • The ELC may issue structural interdicts or continuing mandamus to monitor long-term environmental restoration

Court orders

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  1. 1.Respondents to identify within 30 days materials and processes dangerous to the environment and human health and prescribe measures for their management under Section 86 of EMCA
  2. 2.Respondents to prescribe measures and formulate methods for management and safe disposal of waste from the City County of Nairobi under Section 86 of EMCA read with Part 2(2)(g) of the Fourth Schedule to the Constitution
  3. 3.Nairobi Metropolitan Services to ensure all waste from the City County of Nairobi is disposed of in an environmentally sound manner per the Waste Management Regulations of 2006
  4. 4.Nairobi Metropolitan Services to decommission, shut down and rehabilitate the Dandora dumpsite and relocate it to another site within six months
  5. 5.In the interim, NMS to manage Dandora waste so as to protect health and the environment, with no burning of plastic or other waste at the dumpsite
  6. 6.NMS with NEMA to prioritise waste reduction, separation of biodegradable and organic waste and recycling strategies in establishing the new landfill
  7. 7.Respondents to develop a plan and strategy for and undertake an urgent clean-up of the Nairobi and Athi River from source to the estuary at Sabaki River in Malindi, with NEMA taking the lead in the environmental action plan
  8. 8.Respondents to file reports in court every four months showing water quality of samples from a minimum of twelve different points of the Nairobi and Athi River including all counties the river passes through
  9. 9.NEMA to oversee the survey of the Nairobi and Athi River to protect it from encroachment and other harmful activities
  10. 10.NEMA to perform its duties under EMCA and the Water Quality Regulations of 2006 and file reports in court every four months on measures taken to rid the rivers of pollution
  11. 11.All counties through which the Nairobi and Athi River courses to eliminate all pollution and act in a precautionary manner by eliminating risky activities along the river
  12. 12.NMS and NEMA to ensure compliance with public participation in the implementation of the judgment
  13. 13.NEMA to undertake programmes of public awareness and environmental education and develop and disseminate guidelines on prevention of pollution of the rivers under Section 9 of EMCA
  14. 14.The 1st and 2nd Petitioners awarded compensation of Kshs. 10,000 each against the Respondents
  15. 15.Petitioners awarded costs of the petition, borne by the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 25(a), 26, 29, 42, 43, 47, 69, 70, 23, 176, 187, 232, 260, Fourth Schedule, Preamble
  • Environmental Management and Coordination Act (EMCA)Sections 2, 3, 5, 9, 71, 86, 142
  • Water ActSection 63
  • Inter-governmental Relations Act (No. 2 of 2012)Section 26
  • Environmental Management and Coordination (Waste Management) Regulations2006
  • Environmental Management and Coordination (Water Quality) Regulations2006
  • Air Quality Regulations2014
  • Rio Declaration on Environment and DevelopmentPrinciples 13 and 15
  • Bamako Convention on Hazardous Wastes Within Africa1991
  • Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (New Zealand)

Cases cited (12)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Centre for Human Rights and Democracy & Another v The Judges and Magistrates Vetting Board & 2 Others
    [2012] eKLR
  • J.S Muiru & 2 others v Tigoni Treasurers Limited & 2 others
    [2014] eKLR
  • Leatch v National Parks and Wildlife Service and Shoalhaven City Council
    81 LGERA 270
  • Muslims For Human Rights (Muhuri) & 2 Others v Attorney General & 2 Others
    High Court Petition No. 7 of 2011
  • Board of Management of Uhuru Secondary School v City County Director for Education & 2 Others
    [2015] eKLR
  • Martin Osano Rabera & Another v Municipal Council of Nakuru & 2 others
    [2018] eKLR
  • Isaac Kipyego Cherop v State Ministry of Water & 142 others
    [2017] eKLR
  • Castle Rock Gardens v The Attorney General & Others
    ELC Petition No. 7 of 2017
  • Kelvin Musyoka (minor suing through mother and best friend Scholastica Khalayi Shikanga) & 9 Others v Attorney General & 7 Others
    ELC Petition No. 1 of 2016
  • Vellore Citizen Welfare Forum v Union of India
    (1996) 5 SCC 647
  • Future Generations v Ministry of Environment & Others
    Radicacion no. 11001-22-03-000-2018-00319-01; STC 4360-2018
Jurisdiction invoked
Articles 42, 70 and 23 of the Constitution read with Section 3 of the Environmental Management and Coordination Act (EMCA), conferring jurisdiction on the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Odando & another (Suing on their Own Behalf and as the Registered Officials of Ufanisi Centre) v National Environmental Management Authority & 2 others; County Government of Nairobi & 5 others (Interested Parties) (Constitutional Petition 43 of 2019) [2021] KEELC 2235 (KLR)", Case Analysis (2021). Constitutional Petition No 43 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2235/eng@2021-07-15

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