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ELCPartially AllowedNotice of motion application dated October 18, 2021 in the Petition (Environment and Land Court, Mombasa)· [2022] KEELC 3841 (KLR)

Godoomal & another v Nationa Environment Management Authority (Nema)... & 3 others (Constitutional Petition 47 of 2021) [2022] KEELC 3841 (KLR)

Environment and Land Court
18 July 2022
12,527 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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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

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (Naikuni, J) on a notice of motion dated October 18, 2021 filed by the 1st and 2nd petitioners, owners of plots MSA/Block/IX/49 and 50 in Mombasa. The petitioners complained of ongoing dumping of garbage, unplanned and unlicensed structures, and containers placed by KURA against their boundary wall, alleging violation of their rights under articles 42 and 70 of the Constitution. They sought conservatory orders directing NEMA to stop dumping, the County Government of Mombasa to demolish unapproved structures, KURA to remove containers, and security support. NEMA responded that waste management and demolition were not within its mandate, being county government functions under the Fourth Schedule and physical planning legislation; the County Government argued constitutional avoidance, contending the dispute was a mere trespass/squatting claim for ordinary civil proceedings under section 152E of the Land Act. The court framed five issues and held: (1) it has jurisdiction under article 162(2)(b) and section 13 of the Environment and Land Court Act, including over environmental rights claims; (2) the petition met the Anarita Karimi Njeru threshold and constitutional avoidance did not apply because genuine environmental rights questions were raised; (3) both NEMA and the County Government have identifiable duties - waste management primarily with the county, coordination with NEMA - and were properly joined; (4) striking out was unwarranted, being a draconian remedy for the clearest of cases. The application was allowed; a locus in quo visit was directed, the petition to be heard inter partes within 90 days, KURA ordered to remove the containers within 14 days, and costs were in the cause.

Key legal issues

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01

Jurisdiction of the ELC over the constitutional petition

Holding

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.

Reasoning

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.

p. 16
02

Threshold for a constitutional petition and constitutional avoidance

Holding

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.

Reasoning

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.

p. 22
03

Identifiable legal duty of NEMA and the County Government

Holding

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.

Reasoning

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.

p. 21
04

Striking out the petition

Holding

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.

Reasoning

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.

p. 22

Legal principles established

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  • 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

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  1. 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. 2.The notice of motion application dated October 18, 2021 is allowed
  3. 3.A site visit (locus in quo) to the suit property to be conducted, mention fixed for October 6, 2022
  4. 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. 5.A declaration that the issues in the petition are substantial and can only be determined through a hearing on a priority basis
  6. 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. 7.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10(1), 10(2)(b)(d), 19, 20, 21, 22(1), 23, 24(1), 27, 28, 42, 43, 69, 70, 162(2)(b), 165(5)(b); part 2(2)(g) of the Fourth Schedule
  • Environment and Land Court ActSections 4 and 13(1), 13(2), 13(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3, 4, 5(d), 10(1)
  • Environmental Management and Co-ordination Act (EMCA), 1999Sections 7, 9(2), 12, 58, 87, and 3(3)
  • Physical and Land Use Planning Act, 2019Sections 2, 48, 56, second schedule and fourth schedule part 2(2)(g)
  • Urban Areas and Cities Act, 2011Sections 3 and 36-42
  • County Government Act, 2012Sections 102-112
  • Land Act, No 6 of 2012Section 152E
  • Physical Planning ActSection 30
  • Waste Management RegulationsSection 24(2)
  • County Government Building By-LawsRegulation 252(1)

Cases cited (19)

  • Castle Rock Gardens Management Limited v Attorney General & 4 others
    [2018] eKLR
  • Martin Osano Rabera and another v Municipal Council of Nakuru and 2 Others
    [2018] eKLR
  • Jorum Kabiru Mwangi & 2 others v Co-operative Bank of Kenya, Kawangware Branch
    [2016] eKLR
  • Anarita Karimi Njeru v Republic
    [1976-1980] 1 KLR 1272 / [1979] eKLR
  • African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha
    [2017] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Bandari Investment Company Limited v National Police Service & others
    [2021] eKLR
  • Coi & another v Chief Magistrate Ukunda Law Courts & 4 others
    [2018] eKLR
  • Attorney General v Kituo cha Sheria & 7 others
    [2017] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Adrian Kamotho Njenga v Council of Governors & 3 others
    [2020] eKLR
  • Communication No 155/96: The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria
  • Fredericks & Others v MEC for Education and Training, Eastern Cape & others
    [2002] 23 ILJ 81 (CC)
  • S v Mhlungu
    1995 (3) SA 867 (CC)
  • S v Boesak
    [2001] (1) SA 912 (CC)
  • Ashwander v Tennessee Valley Authority
    297 US 288, 347 (1936)
  • National Environment Management Authority & another v Gerick Kenya Limited
    [2016] eKLR
  • DT Dobie v Muchina
    [1982] eKLR
  • Gabriel Mutava & 2 Others v Managing Director, Kenya Ports Authority
    [2016] eKLR
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

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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, "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.