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ELCPartially AllowedEnvironment & Land Petition 7 of 2021 (originally Kisumu ELC Petition No. E002 of 2021)· [2023] KEELC 15746 (KLR)

Orodi & 11 others v Oyugi & 3 others; National Environmental Authority (Interested Party)

Environment and Land Court of Kenya
23 February 2023
4,974 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Siaya court shut down an unlicensed gold mine for breaking environmental and mining laws, but refused compensation because residents lacked scientific proof of harm.

What this practically means

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Executive summary

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Twelve petitioners, residents and small-scale gold miners of Abom in Bondo Constituency, Siaya County, petitioned in public interest against Emmanuel Oyier Oyugi, the registered owner of land parcel Siaya/Abom/646, alleging his mining project violated their rights to life, property, a clean and healthy environment and socio-economic welfare, and was conducted without licences, environmental impact assessment, change of user or land control consent. They sought declarations, a permanent restraint, compensation and royalties, restoration of the land, supervisory orders and damages. The 1st respondent denied involvement; the 2nd to 4th respondents and the interested party did not participate despite service. The court (Koross J) framed three issues. On violation of rights, applying the requirement of empirical scientific proof of pollution, it found the Water Resources Authority data showed elevated lead and mercury only within the mining project with no proof of escape; no noise, vibration, dust or health assessments were tendered; and the alleged injuries were not proved. On legality, invoking section 214 of the Mining Act shifting the burden to the alleged licence holder, the court found the 1st respondent produced no evidence of approvals and held his mining project was commenced and operated unlawfully, contravening EMCA, the Mining Act, the Physical and Land Use Planning Act and the Land Control Act. On remedies, invoking inherent powers, the court refused compensation and damages for want of quantification evidence, but declared the project illegal, ordered its closure within 60 days, directed the 1st respondent to seek regulatory certification, and directed the Director of Mines and NEMA to monitor compliance. The petitioners, partially successful, were awarded one half of the costs.

Key legal issues

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01

Whether the petitioners' rights to life, property, socio-economic welfare and a clean environment were violated

Holding

Not proved; the petitioners failed to adduce credible scientific evidence establishing the causal nexus between the mining project and the alleged injuries

Reasoning

The Water Resources Authority data showed water pollution only within the mining project, with no evidence lead or mercury escaped. No noise and vibration assessment, no medical or dust-assessment report, and no evidence of waste mismanagement or degradation was tendered. Allegations of cracks, noise, dust-related illness and pollution therefore failed for want of proof.

02

Whether the 1st respondent unlawfully carried out mining on Siaya/Abom/646

Holding

Yes; the mining project commenced and operated without EIA, mining approvals, change of user or land control consent, contrary to EMCA, the Mining Act, the Physical and Land Use Planning Act and the Land Control Act

Reasoning

Under section 214 of the Mining Act the burden shifted to the 1st respondent to show he held the requisite licences and approvals. He produced no evidence, merely denying the allegations. The expert report affirming that mining was being conducted on the suit property was not dispelled, and the NEMA stop order, though of no probative value, was consistent with regulatory breaches.

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What remedies flow from the finding of illegality

Holding

Declaratory relief, closure of the mine within 60 days, subsequent regulatory certification, supervisory directions to the Director of Mines and NEMA, and half costs

Reasoning

Relying on the court's inherent power under articles 22 and 258 to fashion appropriate remedies, the court declined compensation and damages for want of quantification evidence, but ordered closure and re-approval of the project, with the 4th respondent and NEMA to monitor compliance.

p. 10

Legal principles established

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  • A holder of a mining licence or permit bears the burden of proving that he is so authorised under the Mining Act
  • Constitutional violation claims require clear supporting evidence and cannot rest on unsupported hypotheses
  • Pollution claims are proved by empirical, technical and scientific evidence, not lay opinion
  • In environmental cases under articles 42 and 70, a claimant need not demonstrate personal loss or injury to institute proceedings

Court orders

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  1. 1.Declaration that commencement of the mining project on land parcel No Siaya/Abom/646 without complying with EMCA, the Mining Act, the Physical and Land Use Planning Act and the Land Control Act was contrary to applicable laws and regulations
  2. 2.The mining project on Siaya/Abom/646 shall be closed within 60 days from the date of service of the orders on all parties
  3. 3.The 1st respondent shall thereafter apply for approvals and certification of the mining project from all relevant regulatory authorities within applicable laws and regulations
  4. 4.The 4th respondent and NEMA directed to monitor and ensure the mining project is undertaken in compliance with all applicable laws and regulations
  5. 5.The 4th respondent and NEMA to ensure the court's orders are complied with
  6. 6.One half of the costs of the petition awarded to the petitioners
Jurisdiction invoked
Articles 22, 23, 70 and 162(2)(b) of the Constitution; section 13 of the Environment and Land Court Act

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, "Orodi & 11 others v Oyugi & 3 others; National Environmental Authority (Interested Party)", Case Analysis (2023). Environment & Land Petition 7 of 2021 (originally Kisumu ELC Petition No. E002 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15746/eng@2023-02-23

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