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ELCAllowedPetition dated 2020 (Notice of Motion dated 26th August 2020)· [2022] KEELC 196 (KLR)

Lucy Kinuthia & 47 others v George Mwangi Munyua & 2 others [2022] KEELC 196 (KLR)

Environment and Land Court
24 March 2022
3,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 15th Petitioner, on behalf of 48 Petitioners, moved the Court by Notice of Motion dated 26th August 2020 seeking conservatory orders suspending construction of a development on LR No. 4871/120 in Kikuyu Sub-county, undertaken on the strength of an EIA Licence issued by NEMA and a Change of Use approval by the County Government of Kiambu. The Petitioners alleged the EIA Licence was fraudulently obtained for 64 units instead of 30, absence of a WRMA borehole licence, inadequate public participation, and an irregular Change of Use contrary to the Physical Planning Act. The 1st and 3rd Respondents filed preliminary objections, earlier dismissed with EIA Licence issues referred to the National Environmental Tribunal, and opposed the motion, arguing the development was nearly complete, consents had been withdrawn, and no prima facie case existed. A joint site visit report recorded the building as 85% complete. Applying the settled principles for conservatory orders, the Court held it need not make definitive findings but found a prima facie case: public participation was inadequate since none of the neighbouring Petitioners were consulted and EIA Regulation 17's mandatory requirements were unmet; the Change of Use approval lacked Gazette publication, service on adjacent owners, and proper newspaper publication under sections 41 and 52 of the Physical Planning Act; and it was issued eleven months before the EIA Licence, contrary to Regulation 4. The Court held the threat to the Petitioners' right to a clean and healthy environment was imminent and real, and that completion of the project could not justify breaches. The application was allowed, conservatory orders issued to preserve the substratum of the Petition, and costs awarded to the Petitioners.

Key legal issues

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01

Whether the Petitioners established a prima facie case for conservatory orders

Holding

They did, on the grounds of inadequate public participation and irregular Change of Use approval.

Reasoning

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.

p. 8
02

Whether public participation met the statutory requirements

Holding

It did not; the EIA Regulation 17 requirements were not satisfied.

Reasoning

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.

p. 6
03

Whether the Change of Use approval was validly issued

Holding

It was not; statutory publication and service requirements were not met and it preceded the EIA Licence.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.Costs in favour of the Petitioners

Authorities

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Legislation

  • Constitution of KenyaArticles 21(1), 23, 42, 43, 47, 69, 70
  • Physical Planning Act Cap 286Sections 41(3) and 52
  • Environmental (Impact Assessment and Audit) RegulationsRegulations 2, 4 and 17

Cases cited (6)

  • Gitaru Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Board of Management of Uhuru Secondary School v City Council Director of Education & 2 others
    [2015] eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General
    Nairobi High Court Petition No. 16 of 2011; {2011} eKLR
  • Kevin K. Mwiti & Others v Kenya School of Law & Others
    [2015] eKLR
  • Kariobangi South Land Owners Welfare Group & 3 others v Nairobi City County & 5 others; Kariobangi South Jua Kali Society (Interested party)
    (Civil Appeal 392 of 2017) [2021] KECA 183 (KLR)
  • Martin Nyaga Wambora v Speaker of the County Government of Embu & 3 others
    (2014) EKLR
Jurisdiction invoked
Articles 42, 43, 47, 70 and 23 of the Constitution of Kenya (environmental rights enforcement)

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, "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.