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ELCPartially AllowedPetition dated 16th March 2017 (as amended on 14th January 2022)· [2022] KEELC 2568 (KLR)

Kirimi & another v Kenafric Industries Ltd & 4 others (Petition 5 of 2017) [2022] KEELC 2568 (KLR)

Environment and Land Court
27 June 2022
10,445 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered owners of a wall blocking a river's riparian reserve to demolish it within 60 days, confirming residents can sue directly to protect environmental rights.

What this practically means

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Executive summary

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This is a first-instance environmental petition decided by the Environment and Land Court at Nairobi (Oguttu Mboya, J) on 27th June 2022. The Petitioners, public-spirited residents, alleged that the 1st, 4th and 5th Respondents erected a perimeter wall encroaching on the riparian reserve of Rui-Rwaka (Ruaka) River, a metallic gate blocking the public access road to the river, fenced and dumped soil on a public sewer line, and threatened the right to a clean and healthy environment contrary to Articles 42, 69 and 70 of the Constitution and Section 42 of EMCA. The 4th and 5th Respondents objected to jurisdiction, contending the dispute belonged to the National Environment Tribunal and planning authorities, and argued the wall predated EMCA. The 3rd Respondent (NEMA) corroborated the encroachment through its inspectors' affidavits. The court held it had jurisdiction because the Tribunal is purely appellate over NEMA decisions and no such decision existed; Sections 3(3) EMCA and 13(3) ELC Act confer original jurisdiction. On the evidence, including the respondents' own survey reports and concessions, the court found the Petitioners had proved their case: the wall encroached on the riparian reserve, the gate blocked a public access road, and no EIA licence had ever been obtained. The Amended Petition was allowed. The court declared violations of Articles 42 and 69, ordered demolition of the offensive wall and gate, removal of structures and soil on the sewer line within 60 days, a restoration order, and a structural interdict/continuing mandamus against NEMA with bi-annual compliance reports for three years. The 4th and 5th Respondents were ordered to bear the costs.

Key legal issues

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01

Jurisdiction vis-à-vis alternative statutory dispute resolution mechanisms

Holding

The court is seized of jurisdiction; the petitioners were not obliged to go to the National Environment Tribunal or the planning liaison committee because no decision had been made by NEMA or any planning authority.

Reasoning

The Tribunal under Section 129 EMCA hears only appeals from NEMA decisions. No EIA licence was ever issued or refused, and no planning approval or permit existed that could be appealed against. Sections 3(3) EMCA and 13(3) ELC Act confer original jurisdiction on this court over threats to the right to a clean and healthy environment. Exhaustion applies only where an initial administrative decision exists.

p. 13
02

Whether the petitioners proved encroachment on the riparian reserve and obstruction of access

Holding

Yes - the complaints were substantially proven, aided by the respondents' own affidavits, survey reports and concessions.

Reasoning

The affidavit of NEMA's officer Christopher Muteti confirmed the boundary wall encroached onto the riparian reserve at less than six metres from the river and that a metallic gate blocked the access road. The survey reports annexed by the 4th and 5th Respondents' deponent conceded encroachment and confirmed the road was a public access road. Lorna Solopian's affidavit admitted a sewer line passing through the property.

p. 16
03

Whether the wall predating EMCA exempted the respondents from obtaining approval

Holding

No - the respondents produced no evidence of when the wall was built, and even pre-EMCA constructions required planning approval.

Reasoning

The burden was on the 4th and 5th Respondents to show when the impugned wall was constructed and to annex approved building plans if any. Their failure meant the contention that the wall predated EMCA and NEMA could not excuse the absence of any approval. The wall was accordingly found contravening Section 42 EMCA and the Water Quality Regulations, 2006.

p. 17

Legal principles established

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  • The National Environment Tribunal has only appellate jurisdiction over decisions of NEMA and no original jurisdiction where no such decision has been made.
  • The Environment and Land Court has jurisdiction under Section 3(3) EMCA and Section 13(3) of the ELC Act to hear claims of violation or threat to the right to a clean and healthy environment where no administrative decision exists to exhaust.
  • Proof can be derived from admissions and concessions by the adverse party; the respondents' own affidavits and survey reports corroborated the petitioners' complaints.
  • A party alleging that a structure predates EMCA must place evidence before the court of when it was constructed; even before EMCA no construction could proceed without approval from the relevant planning authority.

Court orders

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  1. 1.A Declaration that the 4th and 5th Respondents contravened the rights of the residents and violated Articles 42 and 69 of the Constitution, 2010
  2. 2.An order restraining the 4th and 5th Respondents to stop or discontinue any act or omission that is harmful to the Environment
  3. 3.An order compelling the 4th and 5th Respondents to demolish the offensive wall which has encroached onto the Riparian reserve and any structures that are on the sewer line as well as remove the dumped soil on the sewer line
  4. 4.An order compelling the 4th and 5th Respondents to remove the illegal gate blocking the public access road to Ruaka River
  5. 5.Implementation, execution and compliance with the orders within 60 days from the date of the judgment
  6. 6.In default, the Director-General of NEMA together with the Nairobi Metropolitan Services shall undertake the demolition and removal, with costs surcharged upon the 4th and 5th Respondents
  7. 7.A Restoration Order directing the 4th and 5th Respondents to restore the impugned area to its status ante and ensure the Riparian reserve is free of encroachment and pollution
  8. 8.A structural interdict/continuing mandamus against the 3rd Respondent (NEMA) to undertake continuous inspection and supervision and file bi-annual compliance reports for 3 years
  9. 9.The 3rd Respondent to undertake appropriate enforcement measures under EMCA upon any discerned breach
  10. 10.The 4th and 5th Respondents to bear the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 42, 69, 70, 232, 249
  • Environment Management and Coordination Act, 1999 (2015)Sections 3(3), 7, 9, 42, 58, 117, 125, 129
  • Water Act, 2016referenced generally
  • Water Quality Regulations, 2006Regulation 6
  • Physical Planning Act (now repealed)Sections 57, 58
  • Physical Planning and Land Use Act, 2019Section 61(3) and (4)
  • Environment and Land Court Act, 2011Section 13(3)
  • Evidence ActSections 108, 109

Cases cited (8)

  • Twiga Construction Company Ltd v Director of Physical Planning & 3 Others
  • Mutaratara Enterprises Ltd v Kenya Airports Authority
    (2017) eKLR
  • National Environment Authority Another v Gerick Kenya Ltd
    (2016) eKLR
  • National Environment Management Authority & 3 others v Maraba Lwatingu Residents Association & 505 others
    [2020] eKLR
  • Samuel K Macharia v Kenya Commercial Bank Ltd & Another
    (2012) eKLR
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] eKLR
  • Raila Odinga & Others v Independent Electoral & Boundaries Commission & Others, Petition No. 5 of 2013
  • In the Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011
Jurisdiction invoked
Article 42, 69 and 70 of the Constitution of Kenya, 2010; Section 3(3) of the EMCA Act, 1999 (2015); Section 13(3) of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kirimi & another v Kenafric Industries Ltd & 4 others (Petition 5 of 2017) [2022] KEELC 2568 (KLR)", Case Analysis (2022). Petition dated 16th March 2017 (as amended on 14th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2568/eng@2022-06-27

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