Mary Waithira Njoroge v Murang’a South Water and Sanitation Company (Muwasco) [2022] KEELC 1690 (KLR)
The bottom line
#A Murang'a court found the water company broke environmental law by skipping its EIA licence, yet dismissed the petition because the MP proved no actual environmental harm.
What this practically means
#Executive summary
#Key legal issues
#Whether commencement of the Sewerage Treatment Plant project was lawful
The initiation of the project was not sanctioned by law because the Respondent commenced construction without an EIA licence, contrary to the Second Schedule of EMCA.
Article 42 guarantees a clean and healthy environment through measures under Article 69. The Second Schedule of EMCA lists activities requiring an EIA before commencement, including projects near rivers. The Respondent admitted it had not obtained the EIA licence; its claim that NEMA allowed it to proceed was unsupported by any evidence. The NEMA letter of 13/5/2020 stopping construction until licensing was admissible and demonstrated non-compliance.
Whether public participation was conducted to constitutional standards
The alleged public participation did not meet constitutional standards.
Public participation is a central constitutional requirement applying to governmental processes. The Respondent relied only on questionnaires and referred to minutes which were never availed; unidentified persons' names in questionnaires cannot establish participation. The Respondent bore the burden of proving participation was real qualitatively and quantitatively, and failed to discharge it, blaming Covid-19 delays without more.
Whether the constitutional rights under Articles 42, 43, 69 and 70 were violated or threatened
No violation proved; the Petitioner failed to discharge her burden on a balance of probabilities.
Following Anarita Karimi Njeru, violations must be pleaded with precision. Although several heads of violation were listed, the Petitioner offered no expert report or scientific evidence to establish the alleged pollution or its likelihood. The Respondent's sanitary engineering explanations were also unsupported by expert evidence, but the burden lay on the Petitioner. Mere allegation of intended pollution was insufficient.
Admissibility of the NEMA letter allegedly obtained without procedural propriety
The document dated 13/5/2020 was relevant and admissible despite the Respondent's objection as to how it was acquired.
In civil cases illegally obtained evidence is admissible if relevant and its admission does not affect fairness of trial, applying Article 50(4) and the decision in John Muriithi & 8 others v Registered Trustees of Sisters of Mercy. The Respondent's allegation of illegality was unsubstantiated. The Court then assessed weight, finding the letter showed NEMA had stopped further construction until an EIA licence was obtained.
Legal principles established
#- A project envisaged under Paragraph 4 of the Second Schedule of EMCA requires an Environmental Impact Assessment licence before commencement, and commencing construction without one is unlawful.
- Public participation must be real both qualitatively and quantitatively, and the entity asserting it bears the burden of demonstrating it.
- Illegally obtained evidence is admissible in civil cases so long as it is relevant.
- A party alleging violation of a constitutional right must plead with reasonable precision and prove the violation on a balance of probabilities, including by expert or scientific evidence where alleged adverse environmental effects are claimed.
Court orders
#- 1.Dismissal of the Petition in its entirety.
- 2.No orders as to costs (each party to bear own costs), the matter being a public interest matter.
- Jurisdiction invoked
- Articles 22(1) and (2), 42, 43(1), 69 and 70 of the Constitution of Kenya, 2010 (constitutional petition invoking enforcement of environmental rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Waithira Njoroge v Murang’a South Water and Sanitation Company (Muwasco) [2022] KEELC 1690 (KLR)", Case Analysis (2022). Amended Petition dated 11th March 2021 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1690/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.