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ELCPartially AllowedEnvironment & Land Petition 26 of 2021· [2023] KEELC 15930 (KLR)

Muthui & 19 others v County Government of Kitui & 7 others

Environment and Land Court of Kenya
22 February 2023
LKL. G. Kimani
18,181 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~73 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that Kitui County illegally allowed sand harvesting on Tiva River without NEMA approval, halting it until proper environmental procedures are followed.

What this practically means

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Executive summary

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Twenty residents of Ndumoni, Tanganyika, Tiva and Nyanyaa areas near Tiva River in Kitui County petitioned against the County Government of Kitui, its resources department, the County Assembly, NEMA, the police, the County Commissioner and two sand transporters. They alleged that unregulated sand harvesting on Tiva River, permitted and licensed by the county without any EIA or public participation, violated articles 10, 35, 42, 60, 69 and 201 of the Constitution, and sought declarations, an inquiry into damages, compensation and a permanent injunction. The 1st and 2nd respondents claimed harvesting was regulated under an EIA report; NEMA denied receiving any EIA report or issuing any licence to the 7th and 8th respondents. The court, adopting the earlier ruling of Angote J in the same matter, confirmed its own jurisdiction over the petition in preference to the National Environmental Tribunal and affirmed the petitioners' locus standi. It held that sand harvesting from a river requires prior written NEMA approval after an EIA under sections 42 and 58 of EMCA; that no EIA had been submitted, so there was no public participation; that the county's authorization letter was illegal; and that the respondents, including the County Assembly, failed their legislative and environmental obligations. The precautionary principle was applied. The petition was allowed in part: declarations of violation of articles 10, 35, 42, 60, 69 and 201 were issued, information was ordered supplied within ninety days, compliance and restoration reports were ordered, and conservatory orders restrained sand harvesting pending the reports. Prayers on child labour and damages were disallowed for want of proof. Costs were awarded to the petitioners jointly and severally against the 1st, 2nd, 3rd, 4th, 7th and 8th respondents.

Key legal issues

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01

Jurisdiction of the ELC versus the National Environmental Tribunal

Holding

The ELC, not the NET, has jurisdiction over a petition alleging infringement of articles 42, 69 and 70 rights where NEMA's decision is not being challenged

Reasoning

Relying on the earlier ruling of Angote J in the same matter, the court held that the petitioners were not challenging any NEMA decision and the prayers were confined to alleged rights infringement; the NET therefore lacked the requisite jurisdiction and the ELC was the proper forum under section 13(4) of the Environment and Land Court Act.

p. 16
02

Requirement of prior NEMA approval and EIA for river sand harvesting

Holding

Section 42 of EMCA prohibits harvesting sand from a river without prior written NEMA approval given after an EIA; sand harvesting is a Second Schedule project requiring an EIA report

Reasoning

NEMA confirmed it had received no EIA report and issued no licence to the 7th and 8th respondents, yet sand was being excavated and transported from River Tiva - a direct contravention. The authorization letter relied on by the respondents was not a licence and was granted without following the laid-down procedure, hence illegal.

p. 22
03

Public participation in EIA and sand harvesting authorization

Holding

No EIA report submitted to NEMA meant no public participation occurred, violating article 10(2)(a) and Part VI of EMCA

Reasoning

Public participation is a constitutional imperative and a key reason for conducting an EIA. The EMCA process requires gazettement of a project notice, publication in at least two newspapers and radio, and invitation of public comments. The 1st, 2nd, 7th and 8th respondents did not show this process was followed.

p. 23
04

Failure to legislate on sand harvesting

Holding

The 1st and 3rd respondents failed their article 42 obligation to protect the environment through legislative measures; a gazette notice ban was not a law or regulation

Reasoning

The respondents admitted a gap in the legal and institutional framework. The Gazette Notice banning transportation of sand outside the county was characterized as a knee-jerk reaction that did not amount to a law or regulation and did not satisfy the statutory procedure for sustainable sand harvesting projects.

p. 27
05

Remedies: damages versus declarations and restoration

Holding

Damages were refused for lack of proof of direct individual impact; declarations, restoration of the river and a compliance order were the practicable remedies

Reasoning

Award of damages is discretionary and must be exercised on reason and principle. The petitioners did not demonstrate how sand harvesting directly and negatively impacted them or that they owned affected land near the river. Article 70 does not require proof of loss, so declarations of right sufficed as vindication.

p. 29
06

Violation of the right of access to information

Holding

The 1st, 2nd, 4th, 5th and 6th respondents violated article 35 by failing to respond to the petitioners' information requests of August 7, 2020

Reasoning

The information requests were duly served and the respondents did not respond substantively to the claim; the court found the facts admitted as true and declared a violation of article 35, ordering supply of the information within ninety days.

p. 29

Legal principles established

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  • A county government may not issue permits, licenses or authority for sand harvesting without first being shown an EIA licence issued by NEMA
  • Where no EIA report is submitted to NEMA, there can be no public participation prior to authorization of sand harvesting
  • Where procedures for protection of the environment are not followed, an assumption may be drawn that the right to a clean and healthy environment is under threat
  • The precautionary principle applies: lack of full scientific certainty is no reason to postpone cost-effective measures to prevent environmental degradation
  • Submission of an EIA report to a county government is no substitute for submission to NEMA

Court orders

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  1. 1.Declaration that the 1st, 2nd, 3rd and 4th respondents violated article 10 of the Constitution in dealing with issuance of permits and licenses for sand harvesting in Tiva River
  2. 2.Declaration that the 1st, 2nd, 3rd and 4th respondents infringed the petitioners' article 42 rights by failing to follow existing laws and guidelines and/or legislate laws regulating sand harvesting in Kitui County
  3. 3.Declaration that the 1st, 2nd, 3rd and 4th respondents violated articles 60(1)(c), 60(1)(e), 69(1)(a), 69(1)(f), 69(1)(g), 69(1)(h), 69(2) and 201(a) of the Constitution
  4. 4.Declaration that the 1st, 2nd, 4th, 5th and 6th respondents violated articles 35(1) and (b) by failing to supply information requested, with an order to supply the information within ninety days
  5. 5.Declaration that the petitioners are entitled to participate in making laws, rules, regulations and guidelines governing sand harvesting in Kitui County
  6. 6.Order directing the 1st, 2nd, 3rd and 4th respondents to comply with EMCA, the National Sand Harvesting Guidelines and all other applicable law, and to file a compliance report including measures to rehabilitate and restore River Tiva within ninety days
  7. 7.Conservatory orders restraining the respondents from licensing, permitting, allowing or exploiting sand from Tiva River pending filing of the reports
  8. 8.Prayers (e) and (f) of the petition disallowed
  9. 9.Costs of the petition awarded to the petitioners, payable jointly and severally by the 1st, 2nd, 3rd, 4th, 7th and 8th respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010articles 3, 10, 35(1), 35(1)(b), 42, 53(1)(d), 60(1)(c), 60(1)(e), 69(1)(a), 69(1)(f), 69(1)(g), 69(1)(h), 69(2), 185, 201(a), Chapter 4
  • Environmental Management and Co-ordination Act (EMCA)sections 3(1), 3(2A), 3(5)(f), 29, 30, 42(4), 58(1), 58(2), 58(3), 63, Part VI, Second Schedule
  • Environment and Land Court Actsections 13(4), 18(e)
  • Environment and Land Act No. 19 of 2011section 18(e)
  • Civil Procedure RulesOrder 1 rule 8
  • Environmental (Impact Assessment and Audit) Regulations, 2003regulation 3
  • National Sand Harvesting Guidelines, 2007general; clause 15
  • Mutunga Rulesrule 4

Cases cited (12)

  • Celestine John Aoko & others v Shem Owino Muga & 7 others; Amicus Curiae Kenya National Commission on Human Rights
    Environment & Land Petition 2 of 2016; [2019] KEELC 2948 (KLR)

    NEMA retains regulatory powers over sand harvesting through the National Sand Harvesting Guidelines, 2007 issued under section 42(4) EMCA

  • Diani Business Welfare Association and others v County Government of Kwale
    Petition 39, 45, 61 & 63 of 2014; [2015] KEHC 1968 (KLR)

    Relied on by 1st and 2nd respondents on public participation in EIA

  • George Karisa Fondo & 19 others v Said Ali Omar & 17 others
    Petition 10 of 2016; [2021] eKLR

    Uncontrolled sand harvesting causes land degradation and poor water quality; requirement to adhere to National Sand Harvesting Guidelines

  • Reuben Njuguna Gachukia & another v Inspector General of the National Police Service & 4 others
    Constitutional Petition 436 of 2017; [2019] KEHC 7830 (KLR)

    Principles applicable to award of damages for constitutional violations (Siewchand Ramanoop)

  • Francis Chachu Ganya & 4 others v Attorney General & another
    Miscellaneous Civil Application 374 of 2012; [2013] KEHC 3986 (KLR)

    Article 10(2) national values; participation of the people requires information be availed and a forum for views

  • Halai Concrete Quarries & 4 others v County Government of Machakos & 4 others
    Environment & Land Petition 19 of 2020; [2023] KEELC 18601 (KLR)

    Meaning of the precautionary principle and Rio Declaration approach

  • Moffat Kamau & 9 others v Aelous Kenya Limited & 9 others
    Constitutional Petition 13 of 2015; [2015] eKLR

    Where environmental protection procedures are not followed, an assumption may be drawn that the right to a clean environment is under threat

  • Joseph Leboo & 2 others v Director Kenya Forest Services & another
    Environment & Land Case 273 of 2013; [2013] KEELC 41 (KLR)

    Public participation is an important component of environmental management under article 69(1)(d)

  • Francis Ngigi Macharia & 67 others v National Environment Management Authority
    Environment & Land Case 36 of 2012; [2018] KEELC 2247 (KLR)

    Sand harvesting requires an approved EIA study report before any licence; county environment committee's management mandate

  • Mbuthia Macharia v Annah Mutua Ndwiga & Commissioner of Lands
    Civil Appeal 297 of 2015; [2017] KECA 290 (KLR)

    Burden of proof in civil and constitutional claims

  • Patrick Makau & another v Attorney General & 3 others
    Environment and Land Case 466 of 2017; [2018] eKLR

    Cited by petitioners on the need for an EIA under article 69(1)(f)

  • Edward Akong'o Oyugi & 2 others v Attorney General
    Constitutional Petition 441 of 2015; [2019] KEHC 10211 (KLR)

    Compensation against the State for constitutional infringement; damages available when only practicable mode of redress

Jurisdiction invoked
Article 165 of the Constitution and section 13(4) of the Environment and Land Court Act (article 42, 69 and 70 enforcement jurisdiction)

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, "Muthui & 19 others v County Government of Kitui & 7 others", Case Analysis (2023). Environment & Land Petition 26 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15930/eng@2023-02-22

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