Asili Mali Company Limited v County Government of Lamu & another (Petition 30 of 2022) [2024] KEELC 455 (KLR)
The bottom line
#A Kenyan court refused to immediately close Lamu's waste facility, ordering NEMA instead to supervise and report on its rehabilitation.
What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory injunction should issue to restrain the operation of the Kanu Waste Collection Centre
The application for a temporary injunction was declined; instead the court reinforced NEMA's restoration orders and directed a compliance report, holding that environmental justice in the circumstances demands restoration measures rather than closure
The court distinguished a dumpsite from a waste collection centre but held that environmental rights under Article 42 may still be engaged. Relying on ELC authority, it held that immediate closure of a functioning waste facility would be impractical where no alternative site exists and would cause residents to revert to indiscriminate dumping. Equity and environmental justice therefore demanded that restoration orders be re-emphasized and compliance monitored through a NEMA report.
Whether the 1st respondent is obliged to conduct an EIA and obtain a licence before establishing a waste site
Yes - the County Government must apply for and obtain an EIA and licence from NEMA before operating a waste site or materials recovery facility
The court adopted the reasoning in Halai Concrete Quarries that county governments hold the devolved function of refuse removal and solid waste disposal, which includes identifying and operating waste disposal sites upon application to NEMA. Sections 87 and 88 of EMCA and the Sustainable Waste Management Act, 2022 require counties to establish and manage disposal sites, subject to environmental impact assessment and licensing by the Authority.
Whether the petitioner established a prima facie case and irreparable harm for interlocutory relief
The court found the parties at odds on whether the facility is a dumpsite or a collection centre, and that the claimed environmental rights could not be disregarded, but chose graduated restoration measures over injunctive relief
The 1st respondent denied declaring the land a dumping site, asserting the structure is a temporary waste collection point on a riparian reserve aimed at curbing indiscriminate dumping. The 2nd respondent had audited the site and issued a Restoration Order. The court accepted the facility impacts the neighbourhood and the sea but held that closure would erode rehabilitation gains, preferring supervised compliance with NEMA's restoration orders pending full hearing.
Legal principles established
#- County governments are constitutionally and statutorily responsible for establishing, managing and regulating waste disposal sites and materials recovery facilities within their jurisdictions, and must obtain an EIA licence from NEMA before founding a waste site
- Closure, relocation or decommissioning of an operating dumpsite or waste facility requires a cautious, graduated approach rather than an immediate restraint order, because waste is generated daily and alternative sites may not exist
Court orders
#- 1.Interlocutory injunction restraining dumping refused; instead restoration orders reinforced in the manner proposed by the 2nd respondent
- 2.Within one month, the 2nd respondent to file a comprehensive report detailing the mitigation and implementation measures so far undertaken by the 1st respondent in the rehabilitation of the Kanu Waste Collection Centre following the Restoration Orders issued on 15th March 2021
- 3.The report to emphasize whether those Orders have been complied with and, if not, whether the sanctions and measures outlined thereon have been implemented
- 4.The current petition to be canvassed by way of written submissions
- 5.Costs in the cause
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution read with the Environment Management and Coordination Act (EMCA) and the Sustainable Waste Management Act, 2022; county devolved function under Part 2 of the Fourth Schedule of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asili Mali Company Limited v County Government of Lamu & another (Petition 30 of 2022) [2024] KEELC 455 (KLR)", Case Analysis (2024). Application dated 16th December 2022 (within a petition at the Environment and Land Court, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/455/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.