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ELCPartially AllowedNot stated in judgment· [2021] KEELC 3159 (KLR)

Isiolo Holding Ground Users Association (suing through its officials namely Hussein Haji Abdullahi (Chairman) & 2 others v Marsh Construction Company Ltd & another [2021] KEELC 3159 (KLR)

Environment and Land Court
26 May 2021
1,260 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court halted sand harvesting and murram excavation at Isioto Holding Ground, ruling money cannot compensate environmental harm.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru on a notice of motion dated 2nd November 2020, brought under Articles 22, 23(3), 42, 69 and 70 of the Constitution by an association chaired by Hussein Haji Abdullahi. The applicants sought a temporary injunction restraining the 1st Respondent from entering, trespassing on, harvesting sand from, or excavating murram in the Isioto Holding Ground in Isioto County, pending hearing of the main petition, on the ground that the 1st Respondent's activities, allegedly sanctioned by the 2nd Respondent, were degrading the environment and violating their constitutional right to a clean and sustainable environment. The applicants asserted that the holding ground remains national government property, not devolved, and that they hold a NEMA licence and an MOU with the ministry responsible for livestock; they also claimed revenue losses of about Kshs. 4,000,000. The application was unopposed, but the court held it must still assess merit. Applying Order 40(1) of the Civil Procedure Rules 2010 and the Giella v Cassman Brown principles, together with Mrao v First American Bank, Pius Kipchirchir Kogo v Frank Kimeli Tenai and Niaz Mohamed Jan Mohamed v Commissioner of Lands, the court found the petitioners' environmental rights claim merited, holding that damages cannot adequately compensate infringement of such rights. The application was allowed, with costs of the application to abide the outcome of the suit. The judgment was delivered virtually on 26th May 2021 by Hon. Lucy N. Mbugua, ELC Judge.

Key legal issues

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01

Whether the interlocutory injunction should issue to restrain environmental degradation of the Isioto Holding Ground

Holding

The application is merited on the established Giella v Cassman Brown principles; an injunction issues because the petitioners' right to a clean and sustainable environment is allegedly being violated and damages cannot adequately compensate

Reasoning

The court applied the traditional tripartite test from Giella v Cassman Brown as extended by Order 40 of the Civil Procedure Rules. The petitioners alleged violation of their constitutional right to a clean and sustainable environment under Articles 42, 69 and 70, with land degradation amounting to a health hazard and loss of revenue. The court found the claim merited, invoking the principle that monetary damages cannot atone for infringement of environmental rights.

p. 3
02

Effect of an unopposed application

Holding

The court is not bound to grant relief merely because an application is unopposed; it must still satisfy itself that the application is merited

Reasoning

Although the respondents did not oppose the application, the court exercised its duty to independently evaluate the merits before granting interlocutory relief. This aligns with the standard practice that even unopposed applications must meet the substantive legal thresholds for the orders sought.

p. 2

Legal principles established

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  • Even where the application is unopposed, the court must still determine whether it is merited
  • Environmental rights claims may not be adequately compensable in damages

Court orders

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  1. 1.The application dated 2nd November 2020 is allowed (temporary injunction to restrain the 1st Respondent from entering, trespassing, harvesting sand, excavating murram or otherwise degrading the Isioto Holding Ground pending hearing and determination of the application and main petition)
  2. 2.Costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23(3), 42, 69 and 70
  • Civil Procedure Rules 2010Order 40(1)(a) and (b)

Cases cited (4)

  • Giella Vs. Cassman Brown
    [1973] EA 358
  • Mrao v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    (2018) eKLR
  • Niaz Mohamed Jan Mohamed versus The Commissioner of Lands
    (1996) eKLR
Jurisdiction invoked
Articles 22, 23(3), 42, 69 and 70 of the Constitution of Kenya

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, "Isiolo Holding Ground Users Association (suing through its officials namely Hussein Haji Abdullahi (Chairman) & 2 others v Marsh Construction Company Ltd & another [2021] KEELC 3159 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3159/eng@2021-05-26

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