Lagat & 5 others v Kaberu & another (Environment & Land Case 254 of 2015) [2024] KEELC 483 (KLR)
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
#Key legal issues
#Jurisdiction vis-à-vis the National Environmental Tribunal
The court has jurisdiction notwithstanding the EMCA tribunal route, because the claim is framed as a violation of constitutional environmental rights.
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.
Whether the 1st Defendant violated the plaintiffs' right to a clean and healthy environment
Yes, but only to the limited extent of the wall constructed one meter from the seasonal river; the broader pollution fears were not proved.
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.
Lawfulness of NEMA's approval of the project
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.
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.
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.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.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.A report to be filed in court within 30 days by the 2nd defendant
- 4.Mention on the 12th March 2024
- 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.