Mohamed & 171 others v National Environment Management Authority & 4 others; Member of Parliament Ganze Constituency & 2 others (Interested Parties) (Petition E12 of 2020) [2022] KEELC 3091 (KLR)
The bottom line
#Kilifi residents stopped a county government's mining through court orders, confirming county governments can be restrained in Kenyan courts.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction can issue against a County government
Yes; the Government Proceedings Act bar does not extend to County governments
The court adopted the decisions of Mutungi J and Obaga J holding that neither the Government Proceedings Act nor the County Government Act protects county governments from injunctive orders. Had the legislature intended county governments to enjoy the national government's protection, the Government Proceedings Act would have been expressly amended to include them. Consequently no statutory bar exists against injunctions directed at county governments.
Whether the petitioners met the threshold for conservatory orders
Yes; conservatory orders granted pending determination of the petition
Applying the principles in Board of Management of Uhuru Secondary School and Gatirau Peter Munya, the court treated the relief as public-law in character. The unlicensed mining had no EIA and was supported by the 2nd, 3rd, 5th and 1st respondents' confirmations that no licences or EIA existed. Dust pollution and environmental degradation posed an imminent, real danger to the rights to a clean environment and health, justifying conservatory relief.
Legal principles established
#- Section 16(2) of the Government Proceedings Act does not apply to County governments and does not bar injunctive orders against them
- There is no law or procedure barring the court from issuing orders of injunction against County governments
- Conservatory orders are public law remedies in rem meant to keep the subject matter of the dispute in situ, not private interlocutory injunctions
- In granting conservatory orders the danger looming over the realization of rights must be imminent, real and not theoretical
Court orders
#- 1.Conservatory orders granted pending the hearing and determination of the petition
- 2.Parties at liberty to engage in mediation to amicably settle the matter
- Jurisdiction invoked
- Constitution of Kenya, Article 23 (conservatory orders in enforcement of Bill of Rights); petition invoking the right to a clean and healthy environment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & 171 others v National Environment Management Authority & 4 others; Member of Parliament Ganze Constituency & 2 others (Interested Parties) (Petition E12 of 2020) [2022] KEELC 3091 (KLR)", Case Analysis (2022). Petition No E12 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3091/eng@2022-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.