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ELCPartially Allowed· [2021] KEELC 3061 (KLR)

Patrick Njenga Mburu & 98 others v National Environmental Management Authority & 6 others [2021] KEELC 3061 (KLR)

Environment and Land Court
4 June 2021
3,829 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a Notice of Motion dated 7th January 2019 by 99 Plaintiffs, residents and owners of properties neighbouring LR No. Dagoretti/Thogoto/2312, seeking interlocutory relief in a suit concerning a leather tannery operated by Yetu Leather Company Limited. They sought a temporary injunction restraining operation of the tannery, a mandatory injunction compelling the 6th and 7th Defendants to disconnect power and water, revocation of EIA License No. NEMA/EIA/PSL/3754 issued by NEMA on 7th September 2016, police supervision of execution, and costs. They contended the license was issued despite their objections, without proper public participation (citing a deceased person, Simon Mburu Thiani, as a participant), without an identifiable approved expert, without newspaper publication, and without change of user from residential to industrial. NEMA, the County Government, the 3rd and 4th Defendants and the 7th Defendant filed replying affidavits opposing the application. Applying Giella v Cassman Brown, the Court (L. Gacheru, J) held that the Plaintiffs established a prima facie case with probability of success - their objections went unanswered and fair administrative action under Article 47 was denied - and that irreparable health injury not compensable by damages was demonstrated, with the balance of convenience favouring them. However, mandatory injunctions and revocation of the EIA license were refused, there being no exceptional circumstances. The application was found partially merited: a temporary injunction was granted restraining operation of the tannery, costs were awarded to the Plaintiffs against the Defendants, and parties were directed to comply with Order 11 within 45 days of close of pleadings ahead of a full trial.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case

Holding

They did, on the unrebutted allegation that their objections were never answered and that the correct EIA procedure was not followed

Reasoning

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.

p. 3
02

Whether irreparable injury not compensable by damages was demonstrated

Holding

Yes - the EIA report itself identified air pollution posing real danger to workers and the general public

Reasoning

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.

p. 4
03

Balance of convenience

Holding

It lies in favour of the Plaintiffs/Applicants

Reasoning

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.

p. 4
04

Whether mandatory injunctions and revocation of the EIA license could issue at the interlocutory stage

Holding

No - such orders are mandatory in nature and require special or exceptional circumstances not established

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to be borne by the Defendants
  3. 3.Parties to comply with Order 11 within 45 days after the close of pleadings, then set the suit for full trial expeditiously

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 4; Order 13 Rules 1 and 5; Order 11; Order 21 rule 1
  • Civil Procedure ActSections 81 and 63(e)
  • Environmental Management and Co-ordination Act (EMCA) 1999Sections 1, 2, 3, 58, 59, 63, 66(2), 67, 68, 69, 87(1), (4) and (5), 90, 129(1) and (2); Sections 70 to 100
  • Constitution of Kenya 2010Articles 10, 23, 42, 47, 70 and 162(2)(b)
  • Judicature ActSection 10
  • High Court Practice and Procedure RulesRule 3(1)
  • Environmental (Impact Assessment and Audit) Regulations 2003Regulations 9 and 10(2)
  • Physical Planning ActProcedures for development approval by Local Authority

Cases cited (7)

  • Airland Tours and Travel Ltd v National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003
  • Giella v Cassman Brown Co Ltd
    (1973) EA 358
  • Kibutiri v Kenya Shell
    Nairobi High Court Civil Case No.3398 of 1980 (1981) KLR
  • E.A Industries v Trufoods
    (1972) EA 420
  • Mrao Ltd v First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Kenya Breweries Ltd & Ano v Washington O. Okeyo
    Civil Appeal No.332 of 2000, 1 EA 109
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.