Lucy Kinuthia & 47 others v George Mwangi Munyua & 2 others [2022] KEELC 196 (KLR)
The bottom line
#Kenya's Environment and Land Court halted a nearly complete apartment development because neighbours were never properly consulted before construction approvals were granted.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners established a prima facie case for conservatory orders
They did, on the grounds of inadequate public participation and irregular Change of Use approval.
The Court evaluated the pleadings without making definitive findings. It found no evidence of public meetings, minutes or consultation of the Petitioners, who qualify as project affected persons given proximity. The Change of Use approval was issued before the EIA Licence, contrary to the EIA Regulations, and publication did not satisfy sections 41 and 52 of the Physical Planning Act. The threat to environmental rights was imminent and evident, warranting conservatory orders to preserve the substratum of the Petition.
Whether public participation met the statutory requirements
It did not; the EIA Regulation 17 requirements were not satisfied.
EIA Regulation 17 mandates consultation with project affected persons, posting of posters, publication, radio announcements and at least three public meetings with minutes. The only evidence was an onsite notice for change of use in the Star Newspaper. None of the 48 Petitioners, being immediate neighbours, participated. The 1st Respondent did not rebut the averments that there were no minutes and that participants were not residents of the area.
Whether the Change of Use approval was validly issued
It was not; statutory publication and service requirements were not met and it preceded the EIA Licence.
Sections 41(3) and 52 of the Physical Planning Act required Gazette publication, service on adjacent owners/occupiers, simultaneous publication in two local dailies and display at the Chief's office. The 3rd Respondent produced no Gazette notice, no proof of service, and the Star Newspaper notice did not satisfy section 52. Further, the change of use was approved on 25/9/2018, eleven months before the EIA Licence of 21/8/2019, contrary to Regulation 4 of the EIA Regulations.
Legal principles established
#- In considering an application for conservatory orders, the Court is not required to make definitive findings of fact or law, which are the province of the Court that will ultimately hear the Petition.
- A proponent must obtain an EIA licence before any other licence for a project requiring environmental impact assessment is issued.
- Under Article 70(3) an applicant for enforcement of environmental rights need not demonstrate loss or injury.
Court orders
#- 1.Conservatory orders suspending construction of the development on LR No. 4871/120 pending the hearing of the Petition, to preserve the substratum of the Petition
- 2.Costs in favour of the Petitioners
- Jurisdiction invoked
- Articles 42, 43, 47, 70 and 23 of the Constitution of Kenya (environmental rights enforcement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Kinuthia & 47 others v George Mwangi Munyua & 2 others [2022] KEELC 196 (KLR)", Case Analysis (2022). Petition dated 2020 (Notice of Motion dated 26th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/196/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.