Waste Africa Limited v Hassan Noor Hassan & 79 others & Director General NEMA
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the NET appeal was time barred under section 129(1) EMCA
The appeal was not time barred; it fell under section 129(2) EMCA, under which the tribunal could extend time under rule 7 of the NET Procedure Rules
The court adopted Simba Corporation, which distinguishes appeals under section 129(1) (by parties to NEMA decisions, 60-day limit) from section 129(2) appeals (by non-parties). The 1st respondents were not parties to the licensing decision, so the 60-day limit did not apply and the tribunal did not err in admitting the appeal.
Whether public participation was conducted before the EIA licence was granted
No proper public participation was conducted; questionnaires were forgeries denounced by their purported makers, and residents were unaware of the asbestos dumping
Witnesses denied signing questionnaires and testified they were unaware of the site. The tribunal had applied the Mui Coal Basin criteria and found them unmet. The court was satisfied the tribunal's conclusion rested on the evidence tendered, including forged signatures and residents' testimony.
Whether the asbestos landfill threatened the health of the 1st respondents
Yes; the tribunal correctly found the landfill a health threat and properly applied the precautionary principle without proof of actual illness
EIA experts testified asbestos is highly carcinogenic and harmful if inhaled or if it reaches groundwater. Photographs showed employees without protective equipment. The court held that under the precautionary principle, lack of full scientific certainty or proof of sickness does not preclude protective findings, citing County Government of Kitui v Sonata Kenya Limited.
Legal principles established
#- Sections 129(1) and 129(2) of EMCA create two categories of appeals: section 129(1) for persons aggrieved by specified licensing decisions within 60 days, and section 129(2) for other decisions, which is not subject to the 60-day limit
- Reasonable suspicion of environmental harm suffices to invoke the precautionary principle, especially with dangerous material like asbestos; proof of actual sickness or death is not required
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Costs of the appeal awarded to the 1st respondent
- On appeal from
- National Environment Tribunal
- NET 144 of 2016 (Hassan Noor Hassan & 79 Others vs Director General, NEMA & Another)
- Jurisdiction invoked
- Appeal from the National Environment Tribunal under the Environmental Management and Co-ordination Act (EMCA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waste Africa Limited v Hassan Noor Hassan & 79 others & Director General NEMA", Case Analysis (2022). Environment and Land Appeal 96 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15433/eng@2022-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.