Kiboko Water Resource Users Association v Kenya Pipeline Company Limited & 3 others (Environment & Land Petition 13B of 2019) [2024] KEELC 837 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to halt oil flow through the Line V pipeline, ruling the environmental petitioner failed to prove a strong enough case for interim protection.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case warranting conservatory orders
The Petitioner failed to establish a prima facie case; determining the legality of the licence and compensation issues at the interlocutory stage would amount to deciding the Petition prematurely
The court noted the Petitioner was questioning the legality of the EIA licence, the failure to address compensation in the restoration order, and the regulators' failure to stop the 1st Respondent. These were matters for full trial. At the interlocutory stage the Applicant was required only to establish a prima facie case with likelihood of success, which the court found had not been demonstrated.
Whether the Petition would be rendered nugatory absent conservatory orders
The Applicant failed to show any right violated or threatened, and would suffer no prejudice if the orders were not granted
Relying on CREAW v Speaker of the National Assembly, the court held that a party seeking conservatory orders must show rights under threat of violation likely to continue absent the order. Having evaluated the material, the court found the Applicant had not demonstrated a violated or threatened right or that denial of the orders would render the Petition nugatory.
Whether public interest favoured the grant or denial of the conservatory order
Public interest was better served by allowing the 1st Respondent to continue transporting petroleum products pending trial
The court weighed the public interest in supply of petroleum products from Mombasa to other counties and neighbouring countries against the alleged environmental risk. Since the leakage had been repaired and remediation undertaken, the court found public interest favoured continued pipeline operation pending the hearing of the Petition.
Legal principles established
#- For a conservatory order to issue, the Applicant must demonstrate a prima facie case with a likelihood of success, that the petition will be rendered nugatory if the order is not granted, and that public interest favours the grant
- In an application for a conservatory order, the court must not make any definitive or conclusive findings of fact or law on the dispute
- A prima facie case in a rights petition is not a case which must succeed at the hearing, but one disclosing arguable constitutional issues
Court orders
#- 1.The Application dated 2nd September 2019 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Articles 2, 10, 22, 23(3)(c), 40, 42 and 69 of the Constitution of Kenya; Sections 3 and 86 of the Environmental Management Coordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiboko Water Resource Users Association v Kenya Pipeline Company Limited & 3 others (Environment & Land Petition 13B of 2019) [2024] KEELC 837 (KLR)", Case Analysis (2024). Petition (number not stated); Notice of Motion dated 2nd September 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/837/eng@2024-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.