Godoomal & another v Nationa Environment Management Authority (Nema)... & 3 others (Constitutional Petition 47 of 2021) [2022] KEELC 3841 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear constitutional environmental claims, ordering KURA to remove containers blocking a Mombasa property.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the constitutional petition
The court found it had jurisdiction, being established under article 162(2)(b) and clothed with power by section 13 of the Environment and Land Court Act to entertain constitutional claims relating to environment and land.
The court traced the ELC's establishment to article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, noting article 165(5)(b) divests the High Court of such matters. Section 13(3) expressly permits redress for violations of articles 42, 69 and 70. Since the petition alleges violation of the right to a clean and healthy environment over a land dispute, jurisdiction was made out.
Threshold for a constitutional petition and constitutional avoidance
The petition met the Anarita Karimi Njeru threshold; the constitutional avoidance doctrine did not defeat it because the environmental rights claims were genuine constitutional questions intertwined with land rights.
Applying Anarita Karimi Njeru and the Mutunga Rules, the court found the petition identified the provisions violated (articles 42 and 70) and the manner of violation. The court held the right to own land and the right to a clean environment must be interpreted together with other rights, so the dispute was not a mere trespass claim dressed as a constitutional petition.
Identifiable legal duty of NEMA and the County Government
Both respondents were properly joined; the County Government bears the primary obligation for waste disposal and building control, while NEMA has mandatory coordination, advisory and technical support obligations under section 9 of EMCA.
The court held NEMA's restorative powers under section 12 of EMCA are not mandatory, but its section 9 coordination, advisory and technical support functions are mandatory and it should do more. The County Government has statutory obligations under the County Governments Act, Urban Areas and Cities Act and Physical Planning Act to control development and waste. Both contributed to the violation by their inaction.
Striking out the petition
The respondents did not meet the threshold for striking out; striking out is a draconian remedy reserved for the clearest of cases and the petition disclosed genuine constitutional claims.
Relying on DT Dobie v Muchina, the court noted striking out is discretionary and draconian, to be used only in the clearest of cases. The petition invoked article 22 rights of access to court and article 23 jurisdiction; the alleged rights violations could only be determined after a hearing. The court therefore declined to strike out the petition.
Legal principles established
#- The Environment and Land Court has jurisdiction to hear and determine constitutional petitions alleging violation of environmental rights under articles 42, 69 and 70 where the dispute relates to land and environment.
- For a constitutional petition to be sustainable it must, with a reasonable degree of precision, identify the constitutional provisions violated and the manner of violation.
- The primary obligation for waste disposal and management rests with the county governments, while NEMA has coordination, advisory and technical support functions under section 9 of EMCA.
- The duty to protect the environment for present and future generations is imposed on both the State and every person under article 69 of the Constitution.
Court orders
#- 1.A declaration that the court has jurisdiction to hear and determine the constitutional petition under articles 22, 23, 42, 69 and 70 read with article 162(2) of the Constitution and sections 4 and 13 of the Environment and Land Court Act
- 2.The notice of motion application dated October 18, 2021 is allowed
- 3.A site visit (locus in quo) to the suit property to be conducted, mention fixed for October 6, 2022
- 4.The main petition to be heard inter partes within ninety (90) days from delivery of the ruling, with mention on October 6, 2022 for pre-trial and directions
- 5.A declaration that the issues in the petition are substantial and can only be determined through a hearing on a priority basis
- 6.A direction that pending the hearing and determination of the petition, the 3rd respondent (KURA) remove the containers illegally placed on the petitioners' boundary wall encroaching the pedestrian pathway within fourteen (14) days from the date of the ruling without fail
- 7.Costs in the cause
- Jurisdiction invoked
- Articles 22, 23, 42, 69 and 70 read with Article 162(2) of the Constitution and sections 4 and 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godoomal & another v Nationa Environment Management Authority (Nema)... & 3 others (Constitutional Petition 47 of 2021) [2022] KEELC 3841 (KLR)", Case Analysis (2022). Notice of motion application dated October 18, 2021 in the Petition (Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3841/eng@2022-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.