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ELCPartially AllowedConstitutional Petition 3 of 2019· [2023] KEELC 20912 (KLR)

Rugut & 2 others v National Environment Management Authority & 4 others

Environment and Land Court of Kenya
19 October 2023
14,566 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~58 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Three residents of Chemamul petitioned the Environment and Land Court at Kericho challenging the construction and operation of the Kipsigis Highlands Tea Factory on parcel 7779/3 (also cited as 7797/3), alleging violations of Articles 26, 27, 28, 29, 35, 40 and 42 of the Constitution, absence of public participation, and seeking cancellation of the EIA license, judicial review orders, damages and restoration. The 2nd Respondent was withdrawn from the suit and the 5th Respondent struck out in earlier rulings. The court disposed of the Petition on written submissions. Applying the Anarita Karimi Njeru standard, it held the Petition was generally pleaded without precision, but proceeded to determine the substantive issues. It found public participation had been conducted through questionnaires, consultative meetings and stakeholder engagement, and rejected the claim under Article 35, standing by its earlier ruling that no request for information was demonstrated. The judicial review prayer failed as the decisions to be quashed were not identified and the application was outside the six-month period under Order 53 rule 2. However, relying on the expert report of Paul K Maritim, the court found the factory had discharged waste water without an Effluent Discharge License or licensed treatment plant, violating the Petitioners' Article 42 right to a clean and healthy environment. It awarded Kshs. 200,000/= general damages, ordered the 4th Respondent to obtain an operating license and EDL within 30 days, directed NEMA to file an elaborate EIA report within 45 days, reserved further orders, and ordered each party to bear their own costs as the suit was brought in public interest.

Key legal issues

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01

Pleading standard in constitutional petitions

Holding

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

Reasoning

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.

p. 17
02

Public participation prior to the EIA license

Holding

Public participation was conducted; the claim failed

Reasoning

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.

p. 24
03

Violation of the right to a clean and healthy environment (Article 42)

Holding

Violated by the 4th Respondent

Reasoning

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.

p. 23
04

Right of access to information (Article 35)

Holding

Not violated; the earlier ruling of 4th March 2021 was affirmed

Reasoning

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.

p. 18
05

Judicial review order to quash the EIA licensing decisions

Holding

Refused; certiorari cannot lie

Reasoning

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.

06

General damages for violation of Article 42

Holding

Awarded Kshs. 200,000/= against the 4th Respondent

Reasoning

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.

p. 25

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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. 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. 7.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 4, 10, 19(2), 20(5), 21, 22, 23, 26, 27, 28, 29, 35, 40, 42, 47, 48, 69, 70, 71, 73, 159, 232, 258, 259
  • Environmental Management and Co-ordination ActSections 3, 58, 67
  • Environmental Management and Coordination (Water Quality) Regulations, 2006Regulation 6(a)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 17, 18(2)
  • Fair Administrative Action ActSections 3, 4, 5
  • Statutory Instruments ActSection 6
  • Civil Procedure ActSection 27(1)
  • Civil Procedure RulesOrder 53 Rules 1, 2, 7(1)
  • Law Reform ActSection 9(3)
  • Physical Planning ActCap 286 / No. 6 of 1996
  • National Construction Authority ActSections 31(1) and (2)
  • National Construction Authority Regulations 2014Regulation 25
  • Crops ActSection 20(6), (7) and (8)
  • Co-operative Societies Act
  • Urban Areas and Cities Act
  • Evidence ActSection 107
  • Land Registration Act
  • Land Act
  • Rio Declaration on Environment and Development (1992)Principle 10

Cases cited (31)

  • Ken Kasing'a vs. Daniel Kiplagat Kirui & 5 others
    [2015] eKLR

    Public participation as constitutional threshold; cancellation of EIA license and compensation

  • John Kabukuru Kibicho & another vs. County Government of Nakuru & 2 others
    [2016] eKLR

    Public participation requirements for EIA

  • Abdikhaim Mohamed Osman vs. Coast Development Authority; Yusuf Omar Abdi & 7 others (Interested Parties)
    [2020] eKLR

    Lack of notice, minutes and correspondence means no public participation

  • Communist Party of Kenya vs. Nairobi Metropolitan Services & 3 others; National Environment Management Authority (Interested party)
    [2021] eKLR

    Public participation standards

  • Odando & another vs. National Environmental Management Authority & 2 others; County Government of Nairobi & 5 others (Interested Parties)
    (Constitutional Petition 43 of 2019) [2021] KEELC 2235 (KLR)

    Discharge of effluents and pollution of rivers violates right to clean and healthy environment

  • Philip Kiptanui Rugut & 2 others vs. National Environment Management Authority & 4 others
    [2021] eKLR

    Right of access to information

  • Pastoli vs. District Local Government Council & others
    [2008] 2 EA 300

    Grounds for judicial review - illegality, irrationality, impropriety of procedure

  • Council of Civil Unions vs. Minister for the Civil Service
    [1985] AC 2

    Judicial review principles

  • Bukoba Gymkhana Club
    [1963] EA 478

    Judicial review principles

  • Republic vs. Kenya National Commission on Human Rights ex-parte Uhuru Muigai Kenyatta
    [2010] eKLR

    Judicial review principles

  • Anarita Karimi Njeru vs. Republic
    [1979] eKLR

    Precision required in pleading constitutional violations

  • Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR

    Particularity of allegations in constitutional petitions

  • Stephen Njuguna & others vs. Hon. Lewis Nguyai & Others
    H.C Petition No. 118 of 2011 (UR)

    Parties must set out clearly the provisions infringed and how

  • Communications Commission of Kenya & 5 others vs. Royal Media Services Limited & 5 others
    [2014] eKLR

    Standards for constitutional petitions

  • David Ndii & 4 others vs. Attorney General & 3 others; Kenya Human Rights Commission & 2 others (Intended Amicus Curiae)
    [2020] eKLR

    Constitutional petition standards

  • Coalition for Reform and Democracy (CORD) & 2 Others vs. Republic of Kenya & 10 others
    [2015] eKLR

    Justiciability and ripeness

  • James Rotich & 4 Others vs. David Kangongo & 5 Others
    [2017] eKLR

    Ripeness - courts do not arbitrate hypothetical matters

  • Peter Makau Musyoka & 19 others vs. Permanent Secretary Ministry of Energy & 14 Others
    [2014] eKLR

    Public participation may be fulfilled in different ways

  • Legal Advice Centre & 2 Others vs. County Government of Mombasa & 4 others
    [2018] eKLR

    Public participation mechanisms

  • John Muraya Mwangi & 501 Others vs. Minister for State for Provincial Administration & Internal Security & 4 others
    [2014] eKLR

    Public participation mechanisms

  • Nairobi Metropolitan PSV Saccos Union Limited & 25 others vs. County of Nairobi Government & 3 others
    [2013] eKLR

    Not all views must be considered in public participation

  • Law Society of Kenya vs. Attorney General & 2 others
    [2019] eKLR

    Public participation threshold

  • Mui Coal Basin Local Community & 15 others vs. Permanent Secretary Ministry of Energy & 17 others
    [2015] eKLR

    Sustainable use of natural resources and environmental rights

  • Republic vs. Professor Mwangi S. Kaimenyi ex parte KIPPRA
    NBI Civil Appeal No. 160 of 2008

    Specific decision must be identified for quashing

  • Independent Electoral and Boundaries Commission (IEBC) vs. National Super Alliance (NASA) Kenya & 6 others
    [2017] eKLR

    Precision in identifying orders for judicial review

  • Raila Odinga & 6 Others vs. Nairobi City Council
    Nairobi HCCC No. 899 of 1993; [1990-1994] EA 482

    Court cannot go around statutory limitation periods for judicial review

  • Republic -vs- Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited
    [2016] eKLR

    Scope of six-month limitation in Order 53 Rule 2 - applies to judicial and quasi-judicial proceedings

  • Kituo Cha Sheria & Another v Central Bank of Kenya & 8 Others
    [2014] eKLR

    Request for information must precede allegation of Article 35 violation

  • John Kamau Kenneth Mpapau vs. City Council of Nairobi & 7 Others
    (2014) eKLR

    Petitioners must set out what information was sought but not given

  • R vs Chief Immigration Officer
    (1976) 3 AER 843

    Right to own property under the Universal Declaration of Human Rights

  • Wreck Motors Enterprises v The Commissioner of Lands and Others
    [1997] eKLR

    Indefeasibility of title once issued

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

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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, "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.