Rugut & 2 others v National Environment Management Authority & 4 others
The bottom line
#A Kericho court found a tea factory polluted local rivers and must now get proper licences, though it avoided shutting the factory down.
What this practically means
#Executive summary
#Key legal issues
#Pleading standard in constitutional petitions
The Petition was deficiently pleaded in respect of most alleged violations; the Petitioners reproduced constitutional provisions without demonstrating how their rights were infringed, save for Articles 35, 40 and 42 which the court considered on their merits
Applying Anarita Karimi Njeru and Mumo Matemu, the court held each right under the Bill of Rights is specifically defined and a breach must be specifically pleaded with particulars and supporting facts. The Petitioners' generalized allegations failed this threshold for most of the Articles cited, though the court proceeded to examine the environmental and information claims substantively.
Public participation prior to the EIA license
Public participation was conducted; the claim failed
The court reviewed the annexures (AJT 3(a-d)) and found questionnaires administered to the local community in the 3rd Respondent's hall, consultative meetings with community members and leaders, over 90% questionnaire response incorporated into planning, and meetings where delegates discussed and approved the project. It accepted that no single mechanism of public participation applies in all situations.
Violation of the right to a clean and healthy environment (Article 42)
Violated by the 4th Respondent
The court relied on the expert report of Paul K Maritim (NEMA lead expert) which found evidence of waste water discharged towards Kaboisio river, no Effluent Discharge License, no licensed waste treatment plant, traces of waste water in storm water drainage channels, and an EIA report not in sync with facts on the ground. Despite contrary findings by the wetlands specialist Lucy Murira, the court found the community had been deprived of the right to a clean and healthy environment.
Right of access to information (Article 35)
Not violated; the earlier ruling of 4th March 2021 was affirmed
The court reiterated its interlocutory finding that a citizen must first request information and be denied before approaching the court under Article 35. Nothing was placed before the court showing a request for information regarding the factory which was denied by the Respondents, relying on Kituo Cha Sheria and John Kamau Kenneth Mpapau.
Judicial review order to quash the EIA licensing decisions
Refused; certiorari cannot lie
The court found the Petitioners did not attach the decisions to be quashed, and since most decisions were made in 2016-2017 while the Petition was filed in 2019, the application was outside the mandatory six-month period under Order 53 rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act. The court also found the decision to establish the factory did not qualify as an act contemplated under those provisions.
General damages for violation of Article 42
Awarded Kshs. 200,000/= against the 4th Respondent
Having found the right to a clean and healthy environment violated, and noting that under Article 70 an applicant need not prove loss or injury, the court allowed the prayer for general damages of Kshs. 200,000/= and commended the Petitioners for presenting materials on the subject matter.
Legal principles established
#- A party invoking enforcement of fundamental rights must set out with reasonable precision the provision infringed and the manner of infringement (Anarita Karimi Njeru standard)
- An applicant under Article 70 need not demonstrate personal loss or injury to enforce the right to a clean and healthy environment
- Certiorari under Order 53 rule 2 must be sought within six months of the proceedings, and the decision sought to be quashed must be identified
Court orders
#- 1.A declaration that the 4th Respondent violated the Petitioners' right to a clean and healthy environment under Article 42 of the Constitution in regard to the manner in which they discharged their waste in operating the factory
- 2.The 4th Respondent shall pay a total of Ksh. 200,000/= as general damages to the Petitioners for violation of their right to a clean and healthy environment
- 3.The 4th Respondent shall, with immediate effect, if it intends to continue operating the tea factory, obtain an operating license including an Effluent Discharge License (EDL) from NEMA within 30 days from delivery of the judgment
- 4.NEMA shall within 45 days of the judgment file an elaborate Environmental Impact Assessment report of the tea factory capturing possible in-situ pollution of Rivers Kaboisio and Koroma, whether there is a licensed waste treatment plant, whether the 4th Respondent is discharging effluent into the environment, and results of water quality samples from Kaboisio and Koroma Rivers
- 5.The court reserved discretion to issue any further orders necessary to safeguard the Petitioners' rights to a clean and healthy environment depending on the report
- 6.The judgment to be served upon NEMA within 7 days so that NEMA can ensure compliance and report to the court as directed
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Articles 22, 23, 70 and 165 of the Constitution of Kenya 2010 (enforcement of Bill of Rights and environmental rights before the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rugut & 2 others v National Environment Management Authority & 4 others", Case Analysis (2023). Constitutional Petition 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20912/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.