Patrick Njenga Mburu & 98 others v National Environmental Management Authority & 6 others [2021] KEELC 3061 (KLR)
The bottom line
#A Kenyan court halted a tannery operating near residents' homes, ruling that environmental regulators failed to properly involve the community before licensing it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case
They did, on the unrebutted allegation that their objections were never answered and that the correct EIA procedure was not followed
The Court noted the constitutional rights to a clean and healthy environment (Articles 42 and 70) and fair administrative action (Article 47). The contention that the Defendants did not reply to the Plaintiffs' objections was not rebutted, indicating denial of a hearing. An expert report dated 19th April 2016 stated an EIA study ought to have been conducted rather than a project report, and the Self Audit Report acknowledged air pollution as a negative impact. A prima facie case with probability of success was therefore established.
Whether irreparable injury not compensable by damages was demonstrated
Yes - the EIA report itself identified air pollution posing real danger to workers and the general public
The Court perused the EIA Report and found it disclosed negative impacts including dust particles negatively affecting ambient air quality, posing real danger to workers and the general public. If the Plaintiffs suffer health concerns from chemical exposure, such harm may not be compensable by costs. Irreparable injury was therefore demonstrated.
Balance of convenience
It lies in favour of the Plaintiffs/Applicants
Although the Court was not in doubt so the third Giella limb was strictly unnecessary, it applied the principle from Pius Kipchirchir Kogo v Frank Kimeli Tenai that the balance of convenience is really a balance of inconvenience. The inconvenience to the Plaintiffs from withholding the injunction would be greater than that to the Defendants from granting it.
Whether mandatory injunctions and revocation of the EIA license could issue at the interlocutory stage
No - such orders are mandatory in nature and require special or exceptional circumstances not established
Mandatory orders are granted in very special and exceptional circumstances at the interlocutory stage. Granting them would exhaust prayers in the Plaint without hearing evidence of all parties. There were disputed issues on alleged contraventions of Articles 42 and 70 and various sections of EMCA, no evidence of exceptional circumstances, and no evidence that the Defendants were stealing a march on the Plaintiffs.
Legal principles established
#- In an interlocutory application the court does not make conclusive findings of fact or law on contradictory affidavit evidence
- The Giella v Cassman Brown principles govern the grant of temporary injunctions in East Africa
- A mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances
- The balance of convenience lies in maintaining the status quo that existed before the wrongful act
- Irreparable injury is injury that cannot be adequately compensated in damages
Court orders
#- 1.Temporary injunction pending the hearing and determination of the suit restraining the Defendants and/or their agents, servants, employees or representatives from further infringement of the Plaintiffs' constitutional rights to a clean and healthy environment by operating and/or running and/or managing a leather Tannery on residential land reference number DAGORETTI/THOGOTO/2312 situated at Dagoretti, Kiambu County
- 2.Costs of the application to be borne by the Defendants
- 3.Parties to comply with Order 11 within 45 days after the close of pleadings, then set the suit for full trial expeditiously
- Jurisdiction invoked
- Articles 10, 23, 70 and 162(2)(b) of the Constitution; Order 40 Rules 1, 2, 3 and 4 and Order 13 Rules 1 and 5 of the Civil Procedure Rules; Sections 58, 59, 63, 66(2), 67, 68, 69, 87, 90, 129 of the Environmental Management and Co-ordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Njenga Mburu & 98 others v National Environmental Management Authority & 6 others [2021] KEELC 3061 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3061/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.