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ELCAllowedEnvironment and Land Petition 47 of 2021· [2023] KEELC 19223 (KLR)

Chandan Jethanand Gidoomal & another v National Environment Management Authority (NEMA) & 3 others; Vacuum Filler Limited & 6 others (Interested Parties)

Environment and Land Court
26 July 2023
13,704 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~55 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered NEMA and Mombasa County to pay KES 10 million and clean up a dumpsite on private land, confirming you need not prove personal injury to sue over environmental harm.

What this practically means

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Executive summary

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The two petitioners, registered owners of Plot Nos MSA/Block/IX/49 and 50 along Tom Mboya Avenue, Mombasa, petitioned NEMA, the Mombasa County Government, KURA and the Deputy County Commissioner, alleging that the respondents' abdication of responsibility had allowed unplanned structures, unlicensed eateries, dumping of garbage and encroaching containers on their land, violating their rights and those of Mombasa residents under article 42 of the Constitution. The respondents filed no responses; the interested parties denied the petitioners' ownership and asserted they ran licensed businesses outside the suit property. The petition was disposed of by written submissions, aided by a court site visit on 6 October 2022 which confirmed extensive dumping, shelters, squatters and containers converted into businesses. The court, per LL Naikuni J, framed three issues and held that the petition met the Anarita Karimi Njeru threshold of reasonable precision; that the respondents failed their article 69(1)(g) duty to eliminate polluting processes, violating article 42; that NEMA, as the principal instrument of government under section 9(1) of EMCA, must proactively lead on urban waste management; and that no proof of personal injury or loss is required under article 70. None of the respondents or interested parties demonstrated how they acquired the land under section 7 of the Land Act. The amended petition was allowed in its entirety: declarations of violation, compensation of KES 10,000,000 jointly and severally against the 1st and 2nd respondents, a mandatory injunction to restore the dumpsite and stop dumping, removal of containers within 90 days, police enforcement of compliance, and each party to bear their own costs.

Key legal issues

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01

Whether the petition met the constitutional pleading threshold

Holding

The petition met the Anarita Karimi Njeru threshold of reasonable precision.

Reasoning

Applying Anarita Karimi Njeru as explained in Matemu, the court held that constitutional violations must be pleaded with reasonable precision but without mathematical exactitude. The petition particularised articles 42, 69 and 70 and the acts of abdication complained of, giving proper notice to the respondents, who filed no responses.

p. 16
02

Whether the right to a clean and healthy environment was violated

Holding

Yes; the respondents failed to eliminate polluting processes and the dumping and unplanned structures violated article 42.

Reasoning

The petitioners produced photographs showing the suit property had become a dumpsite posing health and security threats; the evidence was unrebutted. The court's own site visit on 6 October 2022 confirmed extensive dumping and waste. Article 69(1)(g) obligates the State to eliminate processes endangering the environment, and the Fourth Schedule assigns refuse removal and solid waste disposal to county governments.

p. 13
03

Whether proof of personal injury or loss is required

Holding

No; article 70 and section 3 of EMCA do not require proof of personal injury or loss.

Reasoning

The court held that a person bringing an environmental claim need only show the suit is not frivolous, vexatious or an abuse of process; no prima facie case with probability of success or proof of harm is required. Compensation, however, can only be ordered for specific persons identified in the suit, here the two petitioners.

p. 25
04

Occupation of the suit land by respondents and interested parties

Holding

None of the respondents or interested parties demonstrated how they acquired ownership or justified occupation.

Reasoning

Under article 61 land is public, community or private, and section 7 of the Land Act prescribes acquisition methods. KURA was challenged to file empirical evidence of ownership and a development plan but never did. The court therefore found the occupation unjustified, warranting removal of the containers under section 152E of the Land Act.

p. 23

Legal principles established

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  • An applicant seeking redress for breach or threat of breach of the right to a clean and healthy environment need not demonstrate loss or injury.
  • NEMA is the principal instrument of government for environmental policy implementation and must be proactive on urban waste.
  • The duty to eliminate processes and activities that pollute the environment falls on the State and its agencies, not citizens.

Court orders

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  1. 1.Judgment entered in favour of the petitioners in its entirety
  2. 2.Declaration that the respondents' act of abdicating their responsibility contravened article 42 of the Constitution
  3. 3.Declaration that the violation of article 42 resulted in a denial of the right to a clean and healthy environment to the petitioners and residents of Mombasa County
  4. 4.Order for compensation to the petitioners under article 70(1), (2)(c) as read with article 3 and article 23(3)(a) and (e) of the Constitution
  5. 5.Declaration that the petitioners have a right to redress by injunction and compensation of KES 10,000,000 under article 23(3)(b) and (e) as read with section 13(7) of EMCA, payable by the 1st and 2nd respondents jointly and severally
  6. 6.Mandatory injunction compelling the 1st and 2nd respondents to restore the degraded dumpsite and stop any further dumping on Plot Nos Msa/Block/IX/49 and 50
  7. 7.Order under section 152E of the Land Act directing KURA and all interested parties to remove all containers illegally placed on the petitioners' boundary wall encroaching the pedestrian pathway within 90 days
  8. 8.Upon failure to comply, the petitioner to proceed to cause peaceful eviction at the costs of the 1st and 2nd respondents and the interested parties
  9. 9.The County Commander of Mombasa and the Officer in Charge of Central Police Station Mombasa to ensure full compliance with the court order
  10. 10.Each party to bear their costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 2(4), 3, 3(1), 10, 10(1), 10(2)(b)(d), 19, 20, 20(1), 20(2), 20(3)(a), 20(4)(a), 20(4)(b), 21, 22(1), 22(2)(c), 23(1), 23(3)(a), 23(3)(b), 23(3)(e), 24, 24(1), 27, 28, 40, 42, 43, 61, 69, 69(1), 69(1)(a)-(h), 69(1)(d), 69(1)(g), 69(2), 70, 70(1), 70(2), 70(2)(c), 70(3), 165(3)(b), 258, 259, 259(1), 260; Fourth Schedule paragraph 3(g)
  • Environmental Management and Co-ordination Act (Cap 387)Sections 3(1), 3(2A), 9(1), 13(7), 71, 87, 88, 108(1)
  • Land Act (Cap 280)Sections 7, 152E
  • Civil Procedure Act (Cap 21)Section 27(1)
  • Civil Procedure Rules, 2010Order 18 rule 11
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26(1) and (2)
  • Physical Planning Act (Repealed)In general

Cases cited (11)

  • Anarita Karimi Njeru v Republic
    Criminal Appeal 4 of 1979; [1979] KECA 12 (KLR)

    Constitutional violations must be pleaded with a reasonable degree of precision

  • Matemu v Trusted Society of Human Rights Alliance & 5 others
    Civil Appeal 290 of 2012; [2013] KECA 445 (KLR)

    Standards of proof and pleading in constitutional petitions; substantive test of proper notice

  • Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae)
    Petition 229 of 2012; [2012] KEHC 2480 (KLR)

    Test for constitutional petitions - proper notice without mathematical precision

  • Martin Osano Rabera & another v Municipal Council of Nakuru & 2 others
    Petition 53 of 2012; [2018] KEELC 4040 (KLR)

    Devolution of refuse removal to counties; NEMA's broader mandate; violation of article 42 by dumpsite operations

  • African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha
    Petition 50 of 2012; [2017] KEELC 2781 (KLR)

    Dumpsite as environmental hazard violating article 42; NEMA's audit and regulatory role

  • KM & 9 others v Attorney General & 7 others
    Petition 1 of 2016; [2020] KEELC 1680 (KLR)

    Access to courts on threats of environmental violation; Rio Declaration on liability and compensation

  • Jasbir Rai Singh v Tarchalans Singh
    Petition 4 of 2012; [2014] KESC 31 (KLR)

    Costs follow the event; costs compensate rather than penalise

  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    Civil Case 17 of 2014; [2016] KEHC 7064 (KLR)

    Basic rule on attribution of costs - costs follow the event

  • Myres v Defries
    (1880) 5 Ex D 180

    Meaning of 'costs shall follow the event'

  • Reids Heweet & Company v Joseph
    AIR 1918 Cal 717

    Costs follow the event; distributive reading of separate issues

  • Thorp v Holdsworth
    (1886) 3 Ch D 637

    Object of pleadings - to define issues and diminish expense and delay

Jurisdiction invoked
Articles 23(1), 70 and 165(3)(b) of the Constitution of Kenya, 2010; sections 3 and 108(1) of the Environmental Management and Co-ordination 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, "Chandan Jethanand Gidoomal & another v National Environment Management Authority (NEMA) & 3 others; Vacuum Filler Limited & 6 others (Interested Parties)", Case Analysis (2023). Environment and Land Petition 47 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19223/eng@2023-07-26

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