George Karisa Fondo & 19 others v Said Ali Omar & 17 others [2021] KEELC 4296 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether unlicensed sand harvesting was occurring on the Sabaki River Estuary
Yes - it was established that the 1st to 13th Respondents operated an unlicensed site, uncontested by any Respondent, including NEMA's own evidence
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.
Whether the State agencies (14th to 18th Respondents) were liable for failing to protect the Petitioners' land
No - the State cannot be held liable for the unlawful invasion by private perpetrators absent evidence of negligence, prior knowledge or complicity
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.
Whether the claim for Kshs 45,910,000/- compensation was proved
No - the valuation report failed evidentiary standards as the valuer lacked relevant expertise and did not disclose the basis of his figures
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.
Locus standi in environmental protection suits
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
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.
Legal principles established
#- 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
#- 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.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.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.An Environmental Restoration Order against the 1st to 13th Respondents jointly and severally to restore the environment at their own cost
- 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.Costs of and incidental to the Petition to be borne by the 1st to 13th Respondents
- Jurisdiction invoked
- Articles 42 and 70 of the Constitution; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muthui & 19 others v County Government of Kitui & 7 others[2023] KEELC 15930 (KLR)22 Feb 2023followed
Cite this brief
#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.