Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Appeal No. 66 of 2018· [2021] KEELC 2619 (KLR)

Kenya Towers Limited v Maggie Wanjiku Gachau (suing as representative of 199 others [2021] KEELC 2619 (KLR)

Environment & Land Court
24 June 2021
EOE. O. Obaga
1,756 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment & Land Court allowed telecoms to build masts on estate land after ruling residents' health objections lacked solid scientific evidence.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Milimani against a ruling of Hon. E.K. Usui (SPM) delivered on 6th August 2018 in Milimani CMCC No. 4336 of 2018, which allowed residents' application for interlocutory injunctive and mandatory orders restraining Kenya Towers Limited from erecting six Base Transceiver Stations in Nyayo Embakasi Estate. The residents (200 house owners/occupiers on LR No. 9042/179) claimed the towers would emit radiation causing cancer, neurological symptoms, sleep problems and infertility, relying on research by the Centre for Electrosmog Prevention and a co-resident's medical report showing a brain tumor. The appellant relied on regulatory approvals from NEMA, NCA, KCAA, Nairobi City County and NSSF, consultations with the residents' association and management company, and WHO/ICNIRP materials finding no conclusive evidence of harm. The court framed a single issue: whether the trial magistrate correctly applied the principles for grant of injunctions. Holding that the magistrate relied on a non-objective advocacy source, ignored the WHO and ICNIRP materials, wrongly inferred that the tumor resulted from radiation, wrongly demanded individual consultation of all residents, and wrongly ordered a fresh environmental study despite the EIA underpinning the NEMA licence, the court found the discretion had not been exercised judiciously. The appeal was allowed, the ruling of 6th August 2018 set aside, the Notice of Motion dated 7th May 2018 dismissed with costs, and the appellant awarded costs of the appeal.

Key legal issues

#
01

Whether the trial magistrate properly applied the principles for grant of an interlocutory injunction

Holding

The trial magistrate misdirected herself by relying on partial, non-objective internet-based research and a medical report that did not link the respondent's brain tumor to radiation, and ignored WHO and ICNIRP materials, so no prima facie case was established.

Reasoning

The magistrate relied on research by the Centre for Electrosmog Prevention, a Californian advocacy organization unlikely to give an objective analysis of wireless devices, and failed to address WHO and ICNIRP materials concluding there is no conclusive evidence that base station exposure has adverse effects. The medical report did not attribute the tumor to radiation. Hence the prima facie case finding was wrong and the discretion was not exercised judiciously.

p. 2
02

Whether the consultations and regulatory approvals obtained by the Appellant were disregarded

Holding

The magistrate erred in disregarding consultations with the residents' association and management company and the approvals from NEMA, NCA, KCAA, NCC and NSSF.

Reasoning

The officials of the Residents' Association and Management Company speak on behalf of residents, so individual consultation was unnecessary. Further, the NEMA approval presupposed an Environmental Impact Assessment, making the magistrate's order for another study report for the main hearing wrong.

p. 3

Legal principles established

#
  • On a first appeal the court is under an obligation to re-evaluate the material before the trial court to ascertain whether the trial court properly exercised its discretion in granting an injunction.
  • Where a residents' association and a management company exist, consultation with their officials suffices and it is not required that every individual resident be consulted.
  • A discretionary power must be exercised on the material placed before the court; failure to do so constitutes an error entitling the appellate court to interfere.

Court orders

#
  1. 1.The ruling delivered on 6th August 2018 is set aside
  2. 2.In place thereof, the Respondents' Notice of Motion dated 7th May 2018 is dismissed
  3. 3.The Respondents' Notice of Motion dated 7th May 2018 dismissed with costs
  4. 4.The Appellant shall have costs of the appeal
On appeal from
Chief Magistrate's Court at Nairobi (Milimani Law Courts)
Civil Case No. 4336 of 2018 (ruling on Notice of Motion dated 7th May 2018)
Jurisdiction invoked
First appeal from the magistrate's court to the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution and the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kenya Towers Limited v Maggie Wanjiku Gachau (suing as representative of 199 others [2021] KEELC 2619 (KLR)", Case Analysis (2021). ELC Appeal No. 66 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2619/eng@2021-06-24

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