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ELCDismissedELC Petition No. E001 of 2021· [2022] KEELC 1142 (KLR)

Joseph Chuma Nyambegera v County Government of Nyamira & 3 others [2022] KEELC 1142 (KLR)

Environment and Land Court
23 February 2022
MKMugo Kamau
1,730 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 4th Respondent, the National Environment Management Authority (NEMA), moved the Court by Notice of Motion dated 10/12/2021 seeking its own removal from this petition as an improperly joined party. The petition, brought by Joseph Chuma Nyambegera, alleges that on 1/2/2021 the County Government of Nyamira uprooted his tea bushes and cut down his gum trees on L.R No. NORTH MUGIRANGO/BONYARORANDE/1478 in purported compulsory acquisition for road construction, leading to looting of his property, and seeks inter alia compensation. Although served, no other party responded, and the court determined the application unopposed. Guided by Order 1 rule 10(2) of the Civil Procedure Rules, the court examined NEMA's statutory functions under section 9 of the Environmental Management and Coordination Act, its power under section 12 to direct lead agencies (including County Governments and County Environment Committees under section 30) to perform environmental duties, and the Second Schedule requiring environmental impact assessment for road projects. The court rejected NEMA's assertion that it could not perform the remedies sought, holding that the Petitioner may sue NEMA under section 3 of EMCA if his right to a clean and healthy environment is violated. The application was disallowed, Respondents were directed to file responses within 14 days, and no costs were awarded since other parties did not participate.

Key legal issues

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Whether NEMA was improperly joined as a party

Holding

The application to strike out NEMA was disallowed; NEMA's statutory functions and its powers over lead agencies such as the County Government make its presence relevant to the dispute

Reasoning

The court examined NEMA's objects and functions under section 9 of EMCA and its power under section 12 to direct lead agencies, including County Governments, to perform environmental duties. It noted road construction projects are among those requiring environmental impact assessment under the Second Schedule and section 58. Since the Petitioner alleges environmental violations connected to the road construction, NEMA remains a proper party. The claim that NEMA cannot perform the remedies sought was rejected.

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Legal principles established

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  • A party whose presence is necessary for the effective adjudication of environmental claims under EMCA cannot be struck out merely because it says the remedies sought cannot be performed by it

Court orders

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  1. 1.The Application is disallowed.
  2. 2.The Respondents to file their responses within 14 days from the date of this Ruling.
  3. 3.Since the other parties never participated in this Application, no costs shall be awarded.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 20, 22, 27(1), 40(3), 47(1), 162
  • Environment & Land Court Act No. 19 of 2011Section 13(1) and (2)
  • Environmental Management and Coordination Act No. 8 of 1999Sections 2, 3, 9, 12, 30, 58; Second Schedule paragraphs 2 and 3
  • Land Acquisition Act (Cap 295) (Repealed)Preamble reference
  • Civil Procedure Rules, 2010Order 1 rule 10(2)
Jurisdiction invoked
Articles 3, 10, 20, 22, 27(1), 40(3), 47(1) and 162 of the Constitution of Kenya, 2010; Section 13 Rules (1) and (2) of the Environment & Land Court Act No. 19 of 2011

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, "Joseph Chuma Nyambegera v County Government of Nyamira & 3 others [2022] KEELC 1142 (KLR)", Case Analysis (2022). ELC Petition No. E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1142/eng@2022-02-23

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