Kithome v Janton Investment & another (Environment & Land Case 5 of 2020) [2023] KEELC 451 (KLR)

Environment and Land Court

1 February 2023

CYC. K. Yano

4,305 words in judgment

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The bottom line

The Environment and Land Court in Chuka dismissed an environmental pollution claim over Kathwana Stadium because the plaintiff brought no scientific evidence proving contamination.

What this practically means

Executive summary

The plaintiff sued over the rehabilitation of the stadium at Kathwana Primary School, alleging that the 1st defendant, under a contract granted by the 2nd defendant, was using soil excavated from a hospital dumping site containing needles, bottles and other medical waste, polluting soil and water and endangering pupils and the community. He sought removal and cleaning of the contaminated soil, a permanent injunction, a mandatory injunction to conduct an Environmental Impact Assessment (EIA), general damages and costs. He alleged non-compliance with a NEMA directive and absence of the prerequisite EIA under section 58 of the Environmental Management and Coordination Act. The 1st defendant contended that harmful materials found during excavation were removed per NEMA and Public Health recommendations, and the project was approved and casualty-free. The 2nd defendant denied use of contaminated soil, produced an EIA project report and evidence of a stakeholders' meeting of April 16, 2020 at which soil sampling at ten points found no traces of medical waste. The plaintiff attended that meeting, did not record any objection, produced no contrary expert evidence, and admitted nobody had suffered harm and the stadium was in use. The court framed three issues: whether an EIA was conducted, whether use of contaminated material was proved, and entitlement to reliefs. Holding the EIA shown to have been carried out, the contamination claim speculative and unproved, the plaintiff guilty of laches, and injunctions futile given the completed project, the court dismissed the suit but, noting the plaintiff's environmental concern, ordered each party to bear their own costs.

Key legal issues

Whether an EIA under section 58 of EMCA was conducted

Holding

The EIA was conducted; the EIA project report was produced as D. Exhibit 3 and the licence was never challenged under section 129 of EMCA

Reasoning

DW2 produced an EIA project report for the proposed remedial upgrading works with the 2nd defendant as proponent. No person, including the plaintiff, challenged the grant of the EIA licence as provided under section 129 of EMCA. The court thus found the EIA requirement satisfied and rejected the plaintiff's contention that no assessment took place.

p. 7

Whether contaminated material was used in rehabilitating the stadium

Holding

Not proved; soil sampling at ten points found no traces of medical waste, confirmed by Public Health and NEMA, and the plaintiff adduced no contrary expert evidence

Reasoning

The minutes of the April 16, 2020 meeting showed sampling at ten different points with no traces of medical waste. The plaintiff attended that meeting and did not demonstrate disagreement with the findings, and produced no contrary expert report. His claim was too generalized and lacked scientific backing.

p. 7

Whether the plaintiff was entitled to the reliefs sought

Holding

No; the suit was speculative, the project completed and in use, injunctions would be in vain and no injury was shown

Reasoning

The rehabilitation was completed and the stadium in use even at the time of filing, so injunctive and removal orders would be futile. No person was shown to have suffered harm, negativing general damages. The court therefore found none of the prayers sustainable and dismissed the suit.

p. 8

Legal principles established

He who alleges must prove; a plaintiff bears the burden of adducing sufficient evidence in support of the claim (sections 107 and 108 of the Evidence Act).
Courts do not issue orders in vain.
A plaintiff guilty of laches in bringing a suit after the project was completed faces dismissal of the suit.

Court orders

1.The plaintiff's suit is dismissed
2.Each party to bear their own costs

Authorities

Legislation

Environmental Management and Coordination Actsection 58(1), (2), (3)
Environmental Management and Coordination ActPart VI
Environmental Management and Coordination Actsection 129
Evidence Actsections 107 and 108

Cases cited (2)

Efurieth Irima Mugo v Peter Njiru Mugeki
ELCA No 16 of 2020 (ELCA E5/2020)
Esther Nugari Gachomo vs Equity Bank Ltd
Civil Case No 43 of 2019 – Milimani

Jurisdiction invoked: Original civil jurisdiction under the Environmental Management and Coordination Act (environmental pollution claim); specific statutory basis not stated in the judgment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kithome v Janton Investment & another (Environment & Land Case 5 of 2020) [2023] KEELC 451 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/451/eng@2023-02-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.