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ELCPartially AllowedPetition No 13 of 2019· [2023] KEELC 706 (KLR)

Nyakioga & 21 others v County Government of Nakuru & another (Petition 13 of 2019) [2023] KEELC 706 (KLR)

Environment and Land Court
9 February 2023
5,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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Nakuru's Environment and Land Court ruled that the county government violated residents' constitutional rights by failing to manage waste and drainage, ordering restoration and paying damages.

What this practically means

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Executive summary

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Twenty-two petitioners, residents and claimed owners of parcels on Nakuru Municipality Block 29 (Kwa Rhodah Estate), petitioned for declarations that their rights under Articles 28, 29, 40, 42 and 45 were violated and that the respondents breached Article 69 environmental obligations, seeking an environmental restoration order, general damages and costs. The 1st respondent (County Government of Nakuru) denied the petitioners' residency and ownership, asserted remediation under KISIP and claimed the petition was overtaken by events. The 2nd respondent (NEMA) contended EIA obligations lie with project proponents, not a regulator, and that no cause of action was disclosed against it. The court framed three issues: entitlement to orders, violation of rights, and costs. Applying Anarita Karimi Njeru as qualified by Mumo Matemu, it found four petitioners (1st, 4th, 16th and 19th) proved ownership with precise pleadings, and that photographs established the county's failure to manage waste and drainage. It held it possessed jurisdiction under Articles 22, 258(1), 165(3)(d) and Section 13 of the ELC Act, found violations of Articles 28, 29, 40, 42 and 43 and breaches of Article 69 by both respondents, and declined to require proof of loss or injury under Article 70. Disposition: declarations of violation; a restoration order directed to be issued by the 2nd respondent within 30 days with one year for compliance; Kshs. 300,000 general damages each to the four proven owners; and costs to the petitioners. The petition partially succeeded since eighteen petitioners obtained no damages.

Key legal issues

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01

Whether the petitioners proved residency/ownership sufficient to sustain the petition

Holding

Only the 1st, 4th, 16th and 19th petitioners proved ownership; the petition nonetheless succeeded as some petitioners proved residency and the environmental violations were established

Reasoning

The court perused the annexed titles and found only three titles registered in the names of four petitioners. Those four enumerated the alleged violations with precision, identifying the constitutional Articles and linking them to the respondents' actions or inaction. Photographs corroborated the conditions at Kwa-Rhodah, and residency of the area was established.

p. 7
02

Whether the court had jurisdiction over the environmental rights claims

Holding

The court held it had jurisdiction under Articles 22, 258(1), 165(3)(d) and Section 13 of the Environment and Land Court Act

Reasoning

Article 258(1) and Article 22 grant standing to institute proceedings on constitutional contravention; Article 165(3)(d) grants interpretive jurisdiction; Section 13(3) of the ELC Act expressly precludes exclusion of the court's jurisdiction over Articles 42, 69 and 70 claims relating to a clean and healthy environment.

p. 8
03

Whether the respondents violated the petitioners' rights and environmental obligations

Holding

Yes - Articles 28, 29, 40, 42 and 43 were violated, and both respondents breached Article 69 obligations

Reasoning

The court found the 1st respondent failed to provide proper waste disposal and drainage, causing filth, gullies and stagnant water depicted in photographs, evidencing ineptness of the county government and violation of the right to dignity. Both respondents failed in waste management and monitoring duties, and socio-economic rights under Article 43 were violated as houses became inhabitable during floods.

p. 8
04

Whether damages should be awarded on the conflicting valuation reports

Holding

General damages of Kshs. 300,000 each awarded to the four petitioners who proved ownership

Reasoning

Despite the 1st respondent's challenge to the Prime Valuers report as untested by cross-examination, the court exercised its discretion to award general damages, but limited the award to petitioners who proved ownership of land in the disputed area, awarding Kshs. 300,000 each as compensation for breach of constitutional rights.

p. 11

Legal principles established

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  • A constitutional petitioner must state with precision the right, the constitutional provision and the manner of alleged violation, though without formulaic exactitude
  • An applicant alleging infringement of the right to a clean and healthy environment need not demonstrate loss or injury
  • The right to a clean and healthy environment extends to present and future generations and includes access to redress and remedial orders

Court orders

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  1. 1.Declaration that the petitioners' rights guaranteed and protected by Articles 28, 29, 40, 42 & 43 of the Constitution have been violated by the Respondents
  2. 2.Declaration that the Respondents have breached obligations imposed upon them in respect of the environment by Article 69 of the Constitution
  3. 3.Direction that the 2nd respondent issue an environmental restoration order requiring the 1st Respondent to take actions to prevent continuation of the violation, restore the petitioners' parcels of land, prevent damage to land and environment, remove any waste or refuse deposited on the parcels and provide proper drainage, within 30 days, with one year for compliance
  4. 4.General damages of Kshs. 300,000 each to the 1st, 4th, 16th and 19th petitioners
  5. 5.Costs of the Petition awarded to the petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20(3), 20(4), 22, 23(3), 258(1), 259, 159(2)(e), 162(2)(b), 165(3)(d), 28, 29, 40, 42, 43(1), 69, 70(1), 70(2)
  • Environment and Land Court ActSection 13(1), (2), (3)
  • Environmental Management and Coordination Act No. 8 of 1999Sections 2, 8, 58, 108(2)(4)
  • Environmental Impact Assessment and Environmental Audit Regulations 2003Not specified

Cases cited (13)

  • Wycliffe Gisebe Nyakina v Attorney General & Another
    [2014] eKLR
  • Nation Media Group Limited & 6 Others v Attorney General & 9 Others
    [2016] eKLR
  • Kituo Cha Sheria & 8 Others v Attorney General
    [2013] eKLR
  • VMK v CUEA
    [2013] eKLR
  • Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others
    Petition No. 65 of 2010
  • Ken Kasing'a v Daniel Kiplagat Kirui & 5 Others
    [2015] eKLR
  • Ericsson Kenya Limited v Attorney General & 3 Others
    [2014] eKLR
  • Charles Lekuyen Nabori & 9 others v Attorney General and 3 Others
    [2007] eKLR
  • Anarita Karimi Njeru v Republic
    1976-1980 KLR 1272
  • Mumo Matemu v Trusted Society for Human Rights Alliance & 5 Others
    [2013] eKLR
  • Adrian Kamotho Njenga v Council of Governors & 3 others
    [2020] eKLR
  • Martin Osano Rabera & Another v Municipal Council of Nakuru & 2 others
    [2018] eKLR
  • Communication No.155/96: The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria
Jurisdiction invoked
Article 258(1), Article 22, Article 165(3)(d) of the Constitution; Section 13 of the Environment and Land Court Act (Article 162(2)(b))

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, "Nyakioga & 21 others v County Government of Nakuru & another (Petition 13 of 2019) [2023] KEELC 706 (KLR)", Case Analysis (2023). Petition No 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/706/eng@2023-02-09

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