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Case Brief · caselaw.co.ke
ELCPartially AllowedLand Case 283 of 2016· [2023] KEELC 19898 (KLR)

Amina Said Abdalla & 2 others v County Government of Kilifi & 2 others

Environment and Land Court at Malindi
22 September 2023
12,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~52 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Kilifi County to pay Kshs. 55 million and relocate an illegal dumpsite from private land.

What this practically means

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Executive summary

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The plaintiffs, registered owners of Plot No 5143 Malindi (approximately 14.569 hectares) in Casaurina village, sued the County Government of Kilifi, NEMA and the Attorney General over the establishment and continued operation of an unlicensed, undesignated dumping site on their land, pleading trespass and violation of Articles 40 and 42. The first defendant entered appearance and filed a defence but called no evidence, withdrawing two lined-up witnesses without explanation; the second defendant called one witness who confirmed the site was undesignated and unlicensed and that waste management is a devolved county function. The court held the land is private property whose title was unimpeached, that the first defendant trespassed by dumping refuse without authority, and that the first defendant breached its constitutional and statutory mandate under the Fourth Schedule, EMCA and the Sustainable Waste Management Act, 2022 by operating the dumpsite without an EIA or licence, near the ecologically sensitive Malindi–Ungwana Bay fishery. The plaintiffs' rights to property and to a clean and healthy environment were held violated. The plaintiffs' claimed Kshs. 720 million buy-out and Kshs. 50 million exemplary damages were rejected for lack of valuation evidence and absence of a plea for exemplary damages. The court awarded Kshs. 50 million general damages and Kshs. 5 million for continuing trespass against the first defendant, issued declaratory, prohibitory and mandatory injunctive orders and an Environmental Restoration Order, directed relocation of the dumpsite and restoration under NEMA supervision within 120 days, and awarded costs against the first defendant only.

Key legal issues

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01

Ownership of the suit land

Holding

The land is private property owned by the plaintiffs; the title is protected under Article 40 and section 26 of the Land Registration Act and remains unimpeached

Reasoning

The plaintiffs produced a title and survey report showing ownership and subdivision. The first defendant pleaded that the land was a public utility and that the National Land Commission was to inquire into its allocation, but led no evidence to disprove the plaintiffs' ownership. The title therefore stands unimpeached and indefeasible.

p. 8
02

Trespass by dumping waste

Holding

The first defendant established trespass by dumping refuse on the plaintiffs' land without authority

Reasoning

The first defendant admitted in its pre-trial list of issues that dumping was not in dispute, elected not to call evidence, and its two lined-up witnesses were withdrawn without explanation. The second defendant's witness confirmed the site was undesignated and unlicensed. An adverse inference was drawn against the first defendant.

03

Liability of the first defendant for waste management

Holding

The first defendant, as the county government, is constitutionally and statutorily responsible for establishing and managing waste disposal sites and breached that duty by operating an unlicensed, undesignated dumpsite without an EIA

Reasoning

Part 2 of the Fourth Schedule of the Constitution devolves refuse removal and solid waste disposal to counties; sections 55, 58, 87 and 88 of EMCA and the Sustainable Waste Management Act, 2022 require EIA and licensing by NEMA. The first defendant complied with none of these and continued dumping despite an injunction and NEMA Improvement Orders.

04

Violation of constitutional rights

Holding

The first defendant's establishment of the dumpsite violated the plaintiffs' right to property under Article 40 and the right to a clean and healthy environment under Article 42

Reasoning

The dumping on private land without consent and without legal process arbitrarily deprived the plaintiffs of enjoyment of their property, and the operation of an unlicensed dumpsite near the ecologically sensitive Malindi–Ungwana Bay fishery infringed the right to a clean and healthy environment of the plaintiffs and neighbouring residents.

05

Measure of damages

Holding

General damages of Kshs. 50,000,000 for diminution in value and loss of use, plus Kshs. 5,000,000 for continuing trespass, awarded against the first defendant

Reasoning

The measure of damages in trespass is diminution in value or cost of reinstatement, but the plaintiffs' proposed Kshs. 720 million figure was speculative without a valuation report. Guided by Willesden Investments and the circumstances of the case, the court awarded Kshs. 50 million, with an additional Kshs. 5 million for the continuing trespass after the 2017 injunction.

p. 19
06

Restoration and relocation

Holding

The first defendant must relocate the dumpsite and restore the land under NEMA's supervision, applying the polluter pays principle and a graduated approach

Reasoning

The land cannot be handed back in its degraded state. Citing Rabera, ACRAG and Odando, the court adopted a graduated approach: relocation to a suitable site, restoration of the degraded land at the first defendant's cost, supervised by NEMA, with compliance within 120 days and a Compliance Report to be filed.

Legal principles established

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  • Trespass to land includes dumping rubbish on another's land and is actionable without proof of damage
  • An adverse inference is drawn against a party who fails to call available witnesses without explanation
  • County governments bear the constitutional and statutory mandate to establish and manage waste disposal sites, subject to EIA and licensing by NEMA
  • The polluter pays principle obliges the polluter to bear the costs of remedying pollution

Court orders

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  1. 1.Declaration that the plaintiffs' right to own property under Article 40 of the Constitution has been violated by the acts and omissions of the first defendant
  2. 2.Declaration that the plaintiffs' right to a clean and healthy environment under Article 42 has been violated by the acts and/or omissions of the first defendant
  3. 3.Prohibitory injunction restraining the first defendant and its employees, agents or assigns from transporting to, dumping or disposing of refuse or waste on Plot No 5143 Malindi and the general area of Casaurina village, Malindi
  4. 4.Mandatory injunction compelling the first defendant to identify and relocate the dumpsite to a different and suitable site in accordance with the Sustainable Waste Management Act, 2022 and EMCA
  5. 5.Environmental Restoration Order against the first defendant to restore the degraded dumpsite as far as practicable to its condition prior to the damage
  6. 6.Mandatory injunction compelling the second defendant to ensure no further transportation, storage or disposal of wastes on the suit land, failing which statutory sanctions including contempt proceedings against the first defendant's officials
  7. 7.First defendant to give vacant possession of Plot No 5143 Malindi to the plaintiffs after restoration, supervised by the second defendant
  8. 8.Kshs. 50,000,000 compensatory damages awarded against the first defendant
  9. 9.Kshs. 5,000,000 awarded for continuing trespass against the first defendant
  10. 10.First and second defendants to comply within 120 days; second defendant to file a Compliance Report after lapse of the 120 days
  11. 11.Costs of the suit to be borne by the first defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and EMCA over claims relating to land, environment and constitutional rights under Articles 22, 23, 40, 42 and 70

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, "Amina Said Abdalla & 2 others v County Government of Kilifi & 2 others", Case Analysis (2023). Land Case 283 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19898/eng@2023-09-22

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