Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment extract· [2024] KEELC 483 (KLR)

Lagat & 5 others v Kaberu & another (Environment & Land Case 254 of 2015) [2024] KEELC 483 (KLR)

Environment and Land Court
2 February 2024
9,294 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

#

A Nakuru court ordered a slaughterhouse owner to pull down a wall built too close to a stream, but let the business keep operating.

What this practically means

#

Executive summary

#
Six residents of Belbur Farm/Baraka Estate in Njoro, Nakuru sued the 1st Defendant, who constructed a slaughter house on plot Njoro/Njoro Block 4/1537, and NEMA (2nd Defendant), which licensed it. They sought a permanent injunction against the slaughter house as a health hazard, a declaration that NEMA's approval was null and void for failure to involve the community, and costs. Plaintiffs' evidence included lay testimony and an expert report (PW3) predicting deflected stream flow, flooding and contamination of shallow wells. The defendants relied on the EIA licence issued on 27th August 2015, a public baraza convened by NEMA on 16th July 2015 after complaints, change of user approval, and continuous supervision by NEMA and public health, noting the slaughter house had operated for about 8 years without reported harm. The court first held it had jurisdiction, following Agatha Jeruto Kimaswai and Dominic G. Ng'ang'a, since section 129 EMCA does not oust jurisdiction over Article 42/69/70 claims. After a site visit on 29th September 2023, the court found the only contravention of the plaintiffs' rights was the wall constructed one meter from the seasonal river, and that public interest outweighed the 1st Defendant's private rights. NEMA's approval was found improper only as regards the wall. The court declined the injunction and nullity declaration, instead ordering removal of the wall to 10 meters from the highest water mark within 30 days, effluent testing by NEMA with correction or closure if effluent is found, a report within 30 days, and mention on 12th March 2024.

Key legal issues

#
01

Jurisdiction vis-à-vis the National Environmental Tribunal

Holding

The court has jurisdiction notwithstanding the EMCA tribunal route, because the claim is framed as a violation of constitutional environmental rights.

Reasoning

Relying on Agatha Jeruto Kimaswai and Dominic G. Ng'ang'a, the court held that section 129 EMCA does not oust its jurisdiction over claims of denial, violation or threat to environmental rights under Articles 42, 69 and 70, and that such a claim cannot be dealt with separately from licensing issues.

p. 14
02

Whether the 1st Defendant violated the plaintiffs' right to a clean and healthy environment

Holding

Yes, but only to the limited extent of the wall constructed one meter from the seasonal river; the broader pollution fears were not proved.

Reasoning

After a site visit on 29th September 2023, the court found the only contravention was the wall one meter from the seasonal river. PW1 had conceded no tangible evidence of sickness or effluent flow, and PW2 that nobody had been taken to hospital. Balancing public interest against the 1st Defendant's private rights, the court found the community's Article 42 and 69 rights engaged by the wall's proximity to the stream.

p. 14
03

Lawfulness of NEMA's approval of the project

Holding

The approval was improper only in respect of the wall on the river; the approval process itself (EIA licence, public participation meeting, conditions) was otherwise accepted.

Reasoning

The court relied on its finding in issue B. Evidence showed NEMA issued a stop order, convened a public baraza on 16th July 2015, and licensed the project on 27th August 2015 with conditions. The approval was found 'not proper with the wall on the river' only, leading to remedial rather than nullifying orders.

p. 16

Legal principles established

#
  • Section 129 of EMCA does not oust the Environment and Land Court's jurisdiction to hear claims for redress of violations of environmental rights under Articles 42, 69 and 70 of the Constitution
  • Public interest may outweigh private rights in environmental disputes
  • Costs follow the event

Court orders

#
  1. 1.The 1st defendant to remove the wall near the seasonal stream to a distance of 10 meters from the highest water mark of the stream, within 30 days
  2. 2.The 2nd defendant to test the liquid flowing from the slaughter house to the seasonal river and ascertain whether the same is water or effluent; if found to be effluent, the same to be corrected or the slaughter house to be closed
  3. 3.A report to be filed in court within 30 days by the 2nd defendant
  4. 4.Mention on the 12th March 2024

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2(5), 10, 26, 28, 42, 69, 70, 162(2)(b)
  • Environmental Management and Coordination Act (EMCA)Section 129
  • Environment (Impact Assessment and Audit) Regulations, 2003Regulation 17
  • Civil Procedure Act (Cap 21)Section 27
  • Rio Declaration on Environment and Development [1992]Principle 10

Cases cited (10)

  • Moffat Kamau & 9 others v Actors Kenya Ltd & 9 others
    [2016] eKLR
  • Ken Kasing'a v Daniel Kiplagat & 5 others
    [2015] eKLR
  • John Kabukuru Kibicho & another v County Government of Nakuru & others
    [2016] eKLR
  • Martin Osano Rabera & another v Municipal Council of Nakuru & 2 others
    [2018] eKLR
  • Adrian Kamotho Njenga v Council of Governors & 3 others
    [2020] eKLR
  • Agatha Jeruto Kimaswai v Attorney General & 3 others
    [2021] eKLR
  • Dominic G. Ng'ang'a & another v Director General National Environment Management Authority & 4 others
    [2020] eKLR
  • Republic v Kenya National Commission on Human Rights Exparte Uhuru Kenyatta
    HC Misc. App. No 86 of 2009
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria
    Communication No 155/96
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); EMCA section 129 does not oust jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lagat & 5 others v Kaberu & another (Environment & Land Case 254 of 2015) [2024] KEELC 483 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/483/eng@2024-02-02

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