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ELCPartially AllowedPetition No. 10 of 2016· [2021] KEELC 4296 (KLR)

George Karisa Fondo & 19 others v Said Ali Omar & 17 others [2021] KEELC 4296 (KLR)

Environment and Land Court
19 February 2021
7,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court banned unlicensed sand harvesting at Sabaki River Estuary and ordered restoration, but refused compensation because the claim lacked solid expert evidence.

What this practically means

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Executive summary

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Twenty petitioners, beneficiaries of the Mambrui/Sabaki Settlement Squatter Scheme on the northern banks of the Sabaki River Estuary, petitioned against thirteen private respondents whom they accused of trespassing on their parcels, clearing vegetation and conducting unlicensed sand harvesting, and against five State respondents (the Inspector General of Police, the County Government of Kilifi, the Cabinet Secretary for Environment, the Attorney General and NEMA) whom they accused of abdicating their constitutional and statutory mandates. They sought permanent injunctions, mandatory records of sand quantities and cess, mandamus compelling criminal prosecutions and an EIA report, environmental restoration orders, declaration of the estuary as a protected area, an environmental management plan, and compensation of Kshs 45,910,000/- based on a valuation report. The 1st to 13th Respondents and the County Government did not respond. NEMA confirmed unlicensed harvesting was occurring and supported the Petition. The Court held the harvesting was not sustainable under Article 69(1) of the Constitution, and granted permanent injunctions, an EIA mandamus, a restoration order and an order for an environmental management plan. However, it found no evidence of negligence or complicity by the State agencies, following the principle that the police duty to protect crystallizes only in special individualized circumstances; no evidence that the County Government collected cess; and rejected the compensation claim because the valuer lacked relevant expertise and his figures lacked any disclosed analytical basis. The Petition partially succeeded with costs against the 1st to 13th Respondents.

Key legal issues

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01

Whether unlicensed sand harvesting was occurring on the Sabaki River Estuary

Holding

Yes - it was established that the 1st to 13th Respondents operated an unlicensed site, uncontested by any Respondent, including NEMA's own evidence

Reasoning

NEMA's Replying Affidavit confirmed a site visit on 5th February 2016 during which massive unlicensed sand harvesting was observed in disregard of EIA regulations. No Respondent contested the claim of ongoing illegal sand harvesting or its deleterious environmental effects. The harvesting was therefore not sustainable as envisaged under Article 69(1) of the Constitution, justifying permanent injunctions and a restoration order.

02

Whether the State agencies (14th to 18th Respondents) were liable for failing to protect the Petitioners' land

Holding

No - the State cannot be held liable for the unlawful invasion by private perpetrators absent evidence of negligence, prior knowledge or complicity

Reasoning

Following Agricultural Development Corporation v Harjit Pandhal Singh and Joseph Boro Ngera, the Police duty to protect only crystallizes in special individualized circumstances. The Petitioners knew the perpetrators and should have sued them directly; there was no evidence of prior Police knowledge, complicity, or that the Petitioners took steps to safeguard their land.

p. 9
03

Whether the claim for Kshs 45,910,000/- compensation was proved

Holding

No - the valuation report failed evidentiary standards as the valuer lacked relevant expertise and did not disclose the basis of his figures

Reasoning

PW2 was a property valuer, not a quantity surveyor or environmental expert. His report did not disclose the source of the daily tonnage figures or the fair market price per tonne, and the Court could not verify the analytical process. The Court is enjoined to test expert testimony for rationality and internal consistency, which this report failed.

p. 10
04

Locus standi in environmental protection suits

Holding

Article 70(3) and Article 42 waive the need to demonstrate personal loss or injury; the Petitioners as landowners and residents could sue for themselves and the public

Reasoning

Following Joseph Leboo v Director Kenya Forest Services, Article 42 and 70 of the Constitution allow any person to seek redress for environmental harm without demonstrating personal loss, reflecting intergenerational equity principles under Section 3(5) EMCA and Section 18 of the ELC Act. The Petitioners sued for their private benefit and the public benefit of Sabaki Village residents.

p. 7

Legal principles established

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  • A litigant asserting violation of constitutional rights bears the burden of proof and courts must not decide such claims in a factual vacuum
  • The general duty of the Government or Police to provide security to a citizen or his property only crystallizes in special individualized circumstances
  • In environmental suits an applicant need not demonstrate personal loss or injury to establish locus standi
  • An expert must present the analytical process by which a conclusion was reached, not merely the conclusion

Court orders

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  1. 1.A permanent order of injunction restraining the 1st to 13th Respondents, their servants and or agents from harvesting sand from Land Portion No. 128/Mambrui Sabaki Squatter Settlement Scheme
  2. 2.A permanent injunction restraining the 1st to 13th Respondents from damaging the mud flats, sand dunes, fresh water pools and marshes, brushy woodland and tidal land forming the Sabaki River Estuary and its immediate environs
  3. 3.A Judicial Review order of mandamus directed at the 1st to 13th and 18th Respondents to prepare and file an Environmental Impact Assessment Report within six (6) calendar months
  4. 4.An Environmental Restoration Order against the 1st to 13th Respondents jointly and severally to restore the environment at their own cost
  5. 5.A Judicial Review order directed at the 18th Respondent to produce an environmental management plan for the Sabaki River Estuary under Regulation 26 of the EMCA (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations, 2009
  6. 6.Costs of and incidental to the Petition to be borne by the 1st to 13th Respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 6, 10, 19, 20, 22, 23, 26, 27, 28, 35, 40, 42, 47, 60, 64, 65, 69, 70, 73, 159, 162, 174, 176, 185, 186, 187, 232, 259
  • Environment and Land Court Act No. 19 of 2011Sections 13, 18
  • Environmental Management and Co-ordination ActSections 3, 7, 42, 50, 51, 54, 55, 58, 72, 111, 114, 138, 144, 145; Section 2 (definition)
  • National Land Commission Act No. 5 of 2012Sections 5, 6, 14, 15
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice Rules, 2006
  • Environmental Management and Co-ordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations, 2009Regulation 26
  • EIA & A RegulationsRegulations 7 and 8
  • National Sand Harvesting Guidelines, 2007

Cases cited (6)

  • Joseph Leboo & 2 Others -vs- Director Kenya Forest Services & Another
    (2013) eKLR
  • Leonard Otieno -vs- Airtel Kenya Ltd
    (2018) eKLR
  • Agricultural Development Corporation -vs- Harjit Pandhal Singh & Another
    (2019) eKLR
  • Joseph Boro Ngera Trading as Ngera Fancy Farm -vs- Attorney General
    (2019) eKLR
  • Charles Muriithi & 2 Others -vs- Attorney General
    (2015) eKLR
  • Norwich Pharmacal Company (1974)
Jurisdiction invoked
Articles 42 and 70 of the Constitution; Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "George Karisa Fondo & 19 others v Said Ali Omar & 17 others [2021] KEELC 4296 (KLR)", Case Analysis (2021). Petition No. 10 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4296/eng@2021-02-19

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