Mereka & another v Director General, National Environment Management Authority & 2 others (Cause 22 of 2019) [2022] KEELC 3137 (KLR)
The bottom line
#A Kenyan court shut down a Murang'a charcoal plant because its environmental licence was issued without properly consulting neighbouring landowners.
What this practically means
#Executive summary
#Key legal issues
#Whether the EIA Report was acquired procedurally
The EIA Report was not procedurally acquired as the public participation was deficient; the registered owners of adjacent parcels of land, who were most directly affected, were not involved.
The Court found that only eight people filled questionnaires, and the persons interviewed were employees of the neighbours, not the registered owners themselves. PW4 testified she was misled into signing. The Court held that those most affected must be given consideration and the failure to seek out the adjacent landowners rendered the public participation defective, tainting the entire EIA Report.
Whether the Plaintiffs' right to clean and healthy environment was violated
The Court found and held that the Plaintiffs' right to clean and healthy environment was infringed and the Plaintiffs need protection.
The Court acknowledged pollution occurred (soot, admission of emission by the 2nd Defendant), noted NEMA acted promptly to stop operations, and applied the precautionary principle under Principle 15 of the Rio Declaration and EMCA. Relying on the Ken Kasinga presumption, the Court held that failure to follow procedure for environmental protection creates an assumption of violation, which the 2nd Defendant did not rebut.
Whether the change of user was done procedurally
The Court declined to make any pronouncement, holding that the Plaintiffs were bound by the doctrine of exhaustion and should have first pursued available remedies before the County Physical and Land Use Planning Liaison Committee.
Under the Physical and Land Use Planning Act, complaints regarding planning decisions must first be lodged with the County Liaison Committee, with appeals lying to the Environment and Land Court. The Court held it could not sit as a court of first instance on this issue and that the Plaintiffs also erred in not joining the County Government of Murang'a, which is the authority responsible for change of user.
Whether the 2nd Defendant's Licence should be revoked
The EIA licence issued to the 2nd Defendant be and is hereby cancelled.
The Court noted the licence had a 24-month validity from 6th February 2019 and DW1 admitted it had expired; strictly there was nothing capable of being revoked. However, having found the licensing procedure was devoid of public participation, the Court held the project could not stand and cancelled the licence, reserving to NEMA the primary statutory power of revocation under Section 28 of EMCA.
Legal principles established
#- An EIA Report that is devoid of the Constitutional and statutory requirement of public participation cannot be sustained
- Where a party is aggrieved by a decision of the County Physical and Land Use Planning Liaison Committee, the Environment and Land Court sits as an appeal Court and is a forum of last resort, not first instance
- Where the right to clean environment was contravened but the regulator acted promptly to avert the damage, the fact of prompt regulatory action is relevant to whether the right was violated
- The right to a clean and healthy environment outweighs the private commercial interest of a project proponent
- Where a procedure for the protection of the environment is provided by law and is not followed, an assumption ought to be drawn that the project violates the right to a clean and healthy environment
Court orders
#- 1.A Declaration that the Plaintiffs' right to clean and healthy environment has been violated by the 2nd Defendant
- 2.A Declaration that the EIA Report No. NEMA PR/5/2/MRG/008/1239 submitted by the 3rd Defendant and executed on 13th December 2018 was obtained without public participation and is therefore null and void
- 3.An order that the 2nd Defendant stops immediate operations of the charcoal briquettes plant on LR No. Nginda/Samar/Block 11/955, Murang'a South Sub-County, Murang'a County
- 4.The EIA licence No. PR/1239/0054554 dated 6th February 2019 issued to the 2nd Defendant be and is hereby cancelled and revoked
- 5.The Plaintiffs are awarded costs of the suit
- Jurisdiction invoked
- Article 162(2) of the Constitution read with Section 3(3) of EMCA (Environment and Land Court jurisdiction over environmental matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mereka & another v Director General, National Environment Management Authority & 2 others (Cause 22 of 2019) [2022] KEELC 3137 (KLR)", Case Analysis (2022). Cause No 22 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3137/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.