Johnson Nduya Muthama Holdings Limited v Musomba & 5 others; National Environment and Management Authority (Interested Party) (Environment & Land Petition E012 of 2021) [2022] KEELC 2647 (KLR)
The bottom line
#A Kenyan court refused to stop alleged waste dumping because the evidence (photographs) did not support the claims, even though anyone—not just landowners—can enforce environmental rights.
What this practically means
#Executive summary
#Key legal issues
#Threshold for grant of conservatory orders in a constitutional petition
The applicant must demonstrate a prima facie case with probability of success, clean hands, and real danger of prejudice; the applicant failed on the prima facie case limb
The court adopted the Supreme Court's test in Munya and the CREAW formulation. It then examined the evidence: seven photographs certified under section 106 of the Evidence Act as taken on 24th July 2021 depicted only barbed wire and live fences and showed no human excrement. The averments that the 2nd Respondent is deceased and unable to have dumped waste were uncontroverted. Thus no prima facie case was established.
Whether ownership of the suit properties is a precondition to enforcement of environmental rights
No; an applicant need not prove ownership of the suit property to have environmental rights protected
Since the claim is for violation of the right to a clean and healthy environment under Article 42, the pending dispute over title was immaterial. Article 70 requires no proof of loss or injury, and every person within Kenya enjoys the right to a clean and safe environment whether on their own land or elsewhere.
Whether the Respondents dumped raw human excrement on the suit properties
On the material before the court, the dumping was not proved
The photographs annexed did not depict any excrement; the applicant did not state when the dumping occurred; and the Respondents denied trespass and dumping. The uncontroverted averment that the 2nd Respondent was deceased further undermined the allegation.
Legal principles established
#- An applicant enforcing the right to a clean and healthy environment under Article 70 need not demonstrate actual loss or injury, nor ownership of the land concerned
- Ownership of the suit property is immaterial to enforcement of environmental rights in respect of that land
- Conservatory orders require a prima facie petition with probability of success and clean hands, being equitable in nature
Court orders
#- 1.The application dated 29th July 2021 is dismissed
- 2.Costs of the application awarded to the 1st, 3rd, 4th, 5th and 6th Respondents
- Jurisdiction invoked
- Articles 42 and 70 of the Constitution of Kenya, 2010; Rule 23(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnson Nduya Muthama Holdings Limited v Musomba & 5 others; National Environment and Management Authority (Interested Party) (Environment & Land Petition E012 of 2021) [2022] KEELC 2647 (KLR)", Case Analysis (2022). Petition dated with application dated 29th July 2021 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2647/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.