County Government of Kitui v Sonata Kenya Limited & 2 others
The bottom line
#Kenya's Environment and Land Court ordered Sonata Kenya Limited to remove hazardous asbestos it dumped in Kitui and restore the land, but refused to refund the county's Kshs 5.4 million cleanup bill for lack of receipts.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over constitutional environmental claims despite the NET appeal mechanism under Section 129 EMCA
The court has jurisdiction; Article 162(2)(b) and Section 13(3) of the ELC Act allow it to hear redress of violations of Articles 42, 69 and 70
The 3rd respondent argued the challenge to the EIA licence belonged before the NET under Section 129(1) EMCA. The court adopted its earlier interlocutory ruling by Angote J, holding that a constitutional petition alleging violation of Article 42 rights falls within Section 13(3) of the ELC Act, which precludes nothing in the Act from hearing such applications. No submission changed that position.
Whether the EIA licence was issued without the required public participation
There was no public participation as envisaged by Article 10 and Sections 58 and 59 of EMCA, violating Article 69(1)(d) and Principle 10 of the Rio Declaration
Section 59(1) requires publication of the EIA study report in the gazette, two newspapers and radio calling for submissions. There was no evidence of such publication, nor compliance with Regulation 22 of the EIA and Audit Regulations 2003 on public hearings. The questionnaires annexed were illegible and did not identify residents of Maluma Location. Rio Declaration principles bind the respondents via Article 2(5).
Who should bear the cost of relocating the hazardous asbestos waste
The 1st respondent is responsible for the cost of removal and relocation, but the specific sum of Kshs 5,434,600 was disallowed for failure of strict proof
The 1st respondent deposited the waste in breach of licence conditions and two statutory orders, and it was not denied that the petitioner bore the removal cost. However, the claim was special damages: the contract did not show the disposal destination, the waste remained at the Stadium when the interlocutory order issued, and no receipt or proof of actual payment to Waste Africa Limited was exhibited. The claim failed on the balance of probability.
Whether a permanent prohibitory injunction against depositing hazardous waste on Nzambani/Maluma/690 should issue
Yes; the precautionary and prevention principles justify a permanent prohibitory injunction over the water catchment area
The 1st respondent was found in breach by the Water Resources Authority and NEMA and violated licence conditions. No evidence challenged that the suit land is a water catchment area feeding Thua River, and asbestos is hazardous and non-degradable. Applying the precautionary principle (Principle 15 Rio Declaration; Section 3(5)(f) EMCA) and the prevention principle (Section 3(3) EMCA), disposal there would pollute the catchment and must be stopped.
Costs of the petition
Petitioner entitled to costs payable by the 1st respondent; NEMA's partial contribution to the problem and its enforcement action noted
The 1st and 3rd respondents were shown to have violated residents' rights, necessitating the petition. However, NEMA forwarded the EIA report to lead agencies and the petitioner failed to respond in time, and NEMA acted on public outcry by issuing a Cessation and Restoration Order. The 1st respondent ignored the Stop Order, the Cessation Order and protest letters, so it alone bears the costs.
Legal principles established
#- The Environment and Land Court, not the National Environment Tribunal, has jurisdiction to hear and determine disputes under Article 70 of the Constitution alleging environmental rights violations
- An EIA licence issued without the public participation required by Section 59(1) of EMCA and Article 10 of the Constitution is irregular and violates Article 69(1)(d)
- Comments by lead agencies cannot substitute for public participation of persons likely to be affected by a project
- Special damages must be specifically pleaded and strictly proved, usually by documentary evidence such as receipts, not merely invoices
Court orders
#- 1.A declaration that the 1st and 2nd Respondent's acts of depositing asbestos waste material on land parcel No. Nzambani/Maluma/690 are in contravention of Article 42 of the Constitution and resulted in a denial of the right to a clean and healthy environment to the residents of Kitui County, specifically Maluma Location, Nzambani Ward in Kiongwe area
- 2.A mandatory injunction compelling the 1st and 2nd respondents and/or their employees, agents and assigns to restore at their own cost the environment where the hazardous asbestos had been dumped at Kiongwe to its immediate condition prior to the depositing
- 3.A permanent prohibitory injunction prohibiting the respondents from depositing any hazardous waste on parcel of land known as Nzambani/Maluma/690
- 4.An order compelling the 3rd respondent to revoke the Environmental Impact Assessment licence issued to the 1st Respondent
- 5.Costs of the petition awarded to the petitioner, to be paid by the 1st respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(1) and 13(3) of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chania Logistics Limited v Karanja & 3 others (Environment & Land Case E129 of 2024) [2025] KEELC 3093 (KLR)[2025] KEELC 3093 (KLR)27 Mar 2025
- Kavii v Base Titanium Limited & 2 others[2023] KEELC 18436 (KLR)29 Jun 2023
- Waste Africa Limited v Hassan Noor Hassan & 79 others & Director General NEMA[2022] KEELC 15433 (KLR)24 Nov 2022applied
- Michael Kiswili (on his own behalf of 65 others) v Base Titanium Limited & 3 others [2022] KEELC 465 (KLR)[2022] KEELC 465 (KLR)10 Feb 2022
- Michael Kiswili (on his own behalf of 65 others) v Base Titanium Limited & 3 others [2022] KEELC 465 (KLR)[2022] KEELC 465 (KLR)10 Feb 2022
- CHARLES OWINO OGALLO v KENYA NATIONAL HUMAN RIGHTS & EQUALITY COMMISSION[2020] KEHC 5075 (KLR)11 Jun 2020
- Rose Juma Nyanjom & 3 others v County Government of Kisumu & 2 others [2020] KEELC 3743 (KLR)[2020] KEELC 3743 (KLR)6 Feb 2020
- Andrew Omboto & 3 others v Mwalimu National Investment Co-operative Sacco Limited & another [2019] KEELC 2007 (KLR)[2019] KEELC 2007 (KLR)8 Jul 2019
Cite this brief
#Cite this brief
Caselaw, "County Government of Kitui v Sonata Kenya Limited & 2 others", Case Analysis (2023). Environment & Land Petition 16 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16543/eng@2023-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.