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ELCPartially AllowedEnvironment & Land Petition E001 of 2022· [2023] KEELC 20272 (KLR)

Joseah Kiplang'at Kogo v County Government of Kericho

Environment and Land Court of Kenya
28 September 2023
MOM.C. Oundo
14,908 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~60 min to read original · ~4 min brief

The bottom line

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Kericho's dumpsite was ruled illegal for lacking a NEMA licence, but the court ordered fixes and monitoring instead of closing it.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of nine parcels in Kericho Town (subdivisions of Kericho Municipality Block 1/291), petitioned against the County Government of Kericho for dumping and incinerating waste on his land since about 2016, seeking declarations under Articles 40, 42, 43 and 69, permanent injunctions, an environmental restoration order, and general, special and exemplary damages. The Respondent raised a preliminary objection (no supporting affidavit under Rule 11), pleaded sub-judice by reference to Kericho HCC No. 12 of 2009 (withdrawn by consent), and challenged the Petitioner's titles as fraudulently obtained over land never available for allocation. The court found the Petition not sub-judice since the earlier suit was withdrawn, and held Rule 11(1) permissive so the Petition was not defective. On the merits, it found the dumpsite had operated since 1957, predated EMCA, and that the Respondent never obtained the waste disposal site licence required by sections 87-89 EMCA, rendering the facility illegal and violating the Petitioner's Article 42 right. However, the court declined to determine ownership, trespass, injunction or damages, holding those issues require a full trial rather than a constitutional petition, and that closing the county's only dumpsite would worsen matters. It issued structured supervisory orders: licence application within 14 days, NEMA processing within 45 days, an EIA considering relocation, transporter licences, a perimeter wall with drainage, and NEMA compliance monitoring, with costs to the Petitioner.

Key legal issues

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01

Sub-judice under Section 6 of the Civil Procedure Act

Holding

Petition not sub-judice; the 2009 suit was withdrawn by consent and no similar suit was pending

Reasoning

The court compared the 2009 pleadings with the Petition and noted similarities, but the Petitioner confirmed withdrawal under Order 25 Rule 1. Section 6 bars trial only where a suit is pending; withdrawal removed the bar.

p. 15
02

Defect for want of supporting affidavit

Holding

Rule 11(1) is permissive ('may'); the Petition stood with the single affidavit sworn supporting both application and Petition

Reasoning

The court read Rule 11(1) and (2) and held an affidavit is not mandatory; the Petitioner's affidavit of 16th May 2022 and further affidavit of 17th December 2022 notified the Respondent of the case against it.

03

Operation of dumpsite without NEMA licences

Holding

Respondent operated an unlicensed, illegal dumpsite in breach of sections 87, 88 and 89 EMCA, violating Article 42

Reasoning

The dumpsite predated EMCA, so section 89 required a licence application by 14th July 2000. None was exhibited. The Respondent's own 2019 Environmental Audit Report confirmed open dumping and non-compliance with recommendations.

p. 22
04

Ownership of suit parcels and entitlement to injunction and damages

Holding

Declined to determine; ownership dispute requires full trial, defeating the prima facie case for injunction

Reasoning

The Respondent alleged fraudulent acquisition and that the parcels fell on a road reserve; the court held such questions require interpretation of statute and full ventilation, not a constitutional petition, and declined injunction and damages.

p. 24
05

Appropriate remedy for the environmental violation

Holding

Structured supervisory orders rather than closure: licence application, EIA, relocation consideration, perimeter wall, and NEMA monitoring

Reasoning

Borrowing from the ACRAG v Municipal Council of Naivasha decision, the court balanced the public need for the only dumpsite in Kericho against the Petitioner's Article 42 rights, crafting remedies under the Sustainable Waste Management Act, 2022 framework.

p. 25

Legal principles established

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  • A supporting affidavit to a constitutional petition is permissive, not mandatory, under Rule 11(1) of the Mutunga Rules
  • An applicant under Article 70 and section 3 EMCA need not show personal loss or interest in the land harmed
  • Operating a waste disposal site without a NEMA licence is an offence under section 87(5) EMCA
  • A matter that can be resolved without recourse to the Constitution should not be brought as a constitutional petition

Court orders

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  1. 1.Declaration that the Respondent violated the Petitioner's right to a clean and healthy environment under Article 42 in the manner it operated the dumpsite
  2. 2.Respondent to apply to NEMA for a waste disposal site licence within 14 days if it intends to continue using the dumpsite
  3. 3.NEMA to consider and process such application within 45 days and report to the court
  4. 4.NEMA to apply to court under section 90 of EMCA if no licence application is made or licence terms are not complied with
  5. 5.NEMA to ensure a thorough Environmental Impact Assessment is done on the dumpsite within 45 days, considering relocation away from residential areas
  6. 6.County Government of Kericho to issue licences to all transporters of waste with immediate effect
  7. 7.Facility to be secured with a perimeter wall with storm water drainage
  8. 8.NEMA to monitor compliance and cause the matter to be mentioned periodically
  9. 9.Judgment to be served upon NEMA to ensure compliance
  10. 10.Costs of the Petition awarded to the Petitioner, payable by the County Government of Kericho

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 6, 10, 20(1), 20(3), 20(4), 21(1), 21(2), 22, 23, 24, 258, 27, 40, 42, 43, 69(1), 69(2), 70, 73(1), 159(2)(b), 165, 176, 186; Fourth Schedule Part 2 Section 2(g)
  • Environmental Management and Co-ordination Act No. 8 of 1999Sections 2, 3, 42(1)(e), 63, 72, 87, 88, 89, 90, 111; Schedule 2
  • Environmental (Impact Assessment and Audit) Regulations, 2003generally
  • Environmental Management (Waste Management) Regulations, 2006generally
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 11(1), 11(2)
  • Environment and Land Court ActSections 13(3), 111(1)
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 25 Rule 1
  • Penal CodeSections 175, 191, 192, 219
  • Trespass ActSections 2, 3
  • Land Registration ActSections 24(a)(b), 25
  • National Land Commission Act No. 5 of 2012Sections 1, 6, 14
  • Physical Planning ActSections 15, 41(3)
  • Kericho County Regularization of Unauthorized Development Act, 2021Sections 1, 6(1)
  • Sustainable Waste Management Act, 2022Section 9
  • Evidence ActSections 107, 108, 109

Cases cited (15)

  • Kenya Bankers Association & Others vs. Minister for Finance [2002] 1 KLR 61 (The Donde Bill Case)
    [2002] 1 KLR 61

    Locus standi in public interest litigation

  • Adrian Kamotho Njenga vs. Council of Governors & 3 Others [2020] eKLR
    [2020] eKLR

    Standing and link between environmental rights and socio-economic rights

  • Martin Osano Rabera & Another vs. Municipal Council of Nakuru & 2 Others [2018] eKLR
    [2018] eKLR

    Environmental remedies and public interest standing

  • Vijay Morjaria vs. Nansingh Madhusingh Darbar & Another [2000] eKLR
    [2000] eKLR

    Fraud must be distinctly alleged and distinctly proved

  • Phillip Ayaya Aluchio vs Chrispinus Ngayo [2014] eKLR
    [2014] eKLR

    General damages for trespass

  • David Ndii & Others vs. Attorney General & Others [2021] eKLR
    [2021] eKLR

    Sub-judice doctrine under Section 6 Civil Procedure Act

  • Republic vs. Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR
    [2020] eKLR

    Abuse of process by duplicative suits

  • Justus Achinga Kebari & 25 others vs. The Attorney General [2018] eKLR
    [2018] eKLR

    Petition without supporting affidavit is a hollow shell

  • Maureen Nyambura Ngigi Warui vs. Board of Directors, Kenya Power & Lighting Company Limited & 2 others [2020] eKLR
    [2020] eKLR

    Evidential burden of proof on the petitioner

  • Anarita Karimi Njeru vs Republic [1979] eKLR
    [1979] eKLR

    Duty to demonstrate specific constitutional violations

  • Giella vs Cassman Brown [1973] E.A 358
    [1973] E.A 358

    Conditions for grant of injunction

  • ASL Credit Limited vs Abdi Basid Sheikh Ali & Another (2019) eKLR
    (2019) eKLR

    Conditions precedent for sub-judice under Section 6

  • Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited [2013] eKLR
    [2013] eKLR

    Constitutional questions avoided where other remedies exist

  • African Centre for Rights And Governance (ACRAG) & 3 others v Municipal Council of Naivasha [2017] eKLR
    [2017] eKLR

    Reluctance to close the only dumpsite; courts as part of the solution

  • Fose vs. Minister of Safety & Security [1997] ZACC 6
    [1997] ZACC 6

    Appropriate relief and fashioning new constitutional remedies

Jurisdiction invoked
Articles 22, 23, 70 and 165 of the Constitution; Sections 13 and 111 of the Environment and Land Court Act; Section 3 of EMCA

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, "Joseah Kiplang'at Kogo v County Government of Kericho", Case Analysis (2023). Environment & Land Petition E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20272/eng@2023-09-28

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