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ELCDismissedPetition dated with application dated 29th July 2021 (Machakos ELC)· [2022] KEELC 2647 (KLR)

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)

Environment and Land Court
18 May 2022
2,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Petitioner, through an application dated 29th July 2021, sought a conservatory order restraining the Respondents from dumping human waste and otherwise interfering with three suit properties in Matungulu/Kyaume, Machakos County (Matungulu/Kyaume/2742, 2743 and 2744), pending hearing of a constitutional petition alleging violation of the right to a clean and healthy environment under Article 42. The Petitioner alleged that the Respondents dumped raw human excrement around the properties, causing stench, noxious gases and harm to the environment and to residents' health, and that this was intended to circumvent an injunction earlier obtained in Machakos ELC No. 39 of 2020. The Respondents, through the 1st Respondent's replying affidavit, denied trespass and dumping, contended the 2nd Respondent was deceased, asserted ownership of the properties and original titles, and argued the application was malicious, sub judice and an abuse of process. The court framed a single issue: whether the applicant met the threshold for conservatory orders. It applied the Munya and CREAW tests (prima facie case with probability of success, real danger of prejudice, clean hands). Crucially, it held that ownership of the suit property was immaterial to environmental-rights enforcement and that proof of loss or injury is unnecessary under Article 70. However, on the evidence, the seven photographs showed only barbed wire and live fences with no excrement, and uncontroverted averments further undermined the claim. The application was dismissed with costs to the 1st, 3rd, 4th, 5th and 6th Respondents.

Key legal issues

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01

Threshold for grant of conservatory orders in a constitutional petition

Holding

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

Reasoning

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.

p. 6
02

Whether ownership of the suit properties is a precondition to enforcement of environmental rights

Holding

No; an applicant need not prove ownership of the suit property to have environmental rights protected

Reasoning

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.

p. 5
03

Whether the Respondents dumped raw human excrement on the suit properties

Holding

On the material before the court, the dumping was not proved

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 29th July 2021 is dismissed
  2. 2.Costs of the application awarded to the 1st, 3rd, 4th, 5th and 6th Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23(1)
  • Evidence Actsections 106, 107, 108 and 109

Cases cited (10)

  • E.W. A & 2 Others v Director of Immigration and Registration of Persons & Another
    [2018] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Centre for Rights Education and Awareness (CREAW) v Attorney General
    [2011] eKLR
  • George Mike Wanjohi v Stephen Kariuki
    [2014] eKLR
  • Jacqueline Okuta & Another v Attorney General & 2 Others
    [2017] eKLR
  • Republic v Kenya Power & Lighting Co. Limited Exparte Corner Electrical Contractors Limited & 3 Others
    [2015] eKLR
  • Lopesia Group Ranch v Kamanga Holdings Limited & 43 Others
    [2022] eKLR
  • Joseph Kimata Wachira & Another v Wilson Waithaka Gitau & Another
    [2021] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Centre For Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    [2021] eKLR
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

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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, "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.