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ELCDismissedConstitutional Petition (Notice of Motion dated 4th October 2021) filed 18th October 2021· [2024] KEELC 1320 (KLR)

Olang & 18 others v Lake Victoria South Water Works Development Agency Limited & 7 others (Constitutional Petition E022 of 2021) [2024] KEELC 1320 (KLR)

Environment and Land Court
11 March 2024
16,945 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~68 min to read original · ~4 min brief

The bottom line

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The Kisumu Environment and Land Court refused to halt a Kisumu wastewater project because residents did not prove their rights were actually threatened.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kisumu (S. Okong'o, J) dated 11th March 2024 on a Notice of Motion dated 4th October 2021, filed with a petition on 18th October 2021. The Petitioners sought a prohibitory injunction restraining the Respondents from continuing with the implementation, construction or operation of a proposed wastewater treatment plant at Korando, Central Ward, Kisumu West, pending hearing of the petition. They alleged violations of the right to a clean and healthy environment (Article 42), human dignity, and the right to property (Article 40), claiming the project was being implemented without the water service strategy under Section 64 of the Water Act, 2016, without public participation, and in breach of EMCA and World Bank safeguards. The Respondents, including the 1st Respondent (Lake Victoria South Water Works Development Agency) and the 3rd Respondent (the project consultant), opposed the application, contending the project was at proposal/pre-feasibility stage, no feasibility study, project design, land acquisition or EIA licence had been undertaken, and that the meetings held were public awareness and sensitisation meetings rather than statutory public participation; several Respondents argued the petition was premature. The court framed a single issue: whether the application met the threshold for a conservatory order. Applying CREAW, the Munya case and the Nubian Rights Forum principles, the court held the Petitioners had not discharged the burden of establishing a prima facie case. No evidence showed construction had commenced or that land had been acquired; the alleged environmental and social impacts were mere speculation. The court found no breach of constitutional, statutory or regulatory requirements at the time of filing. The application was dismissed with costs to be in the cause.

Key legal issues

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01

Whether the Petitioners established a prima facie case warranting conservatory orders

Holding

No prima facie case was established; the court was not satisfied that rights were violated or threatened

Reasoning

The court held that no evidence showed the 1st Respondent had commenced construction, acquired land, or reached the EIA or public participation stages. What the Respondents were doing were public awareness and sensitisation meetings per a project action plan. Without the land details, plant type and an ESIA report, the alleged environmental and social impacts were mere speculation, so no constitutional, statutory or regulatory breach was shown.

p. 26
02

Whether public participation was due at the awareness stage of the project

Holding

The meetings held were public awareness and sensitisation meetings, not the statutory public participation for ESIA purposes; different meetings were planned for different groups

Reasoning

The 1st and 3rd Respondents explained that the project was at proposal stage with a pre-feasibility study only, and that meetings with leaders and community were preliminary sensitisation pursuant to a Stakeholders' Engagement Plan. The court accepted that the Petitioners could not be admitted to meetings not meant for them, and that public participation proper would occur at the ESIA stage.

p. 28
03

Whether the alleged absence of a water service strategy under the Water Act justified interim relief

Holding

The court found no breach of any constitutional, statutory or regulatory requirement at the time the petition was filed, and noted other procedures exist for challenging development approvals

Reasoning

The Petitioners alleged the Cabinet Secretary had not formulated a water service strategy under Section 64 of the Water Act, 2016. The court found it was not persuaded that any provisions of the Constitution, EMCA or the Water Act were breached, and observed that procedures exist for challenging development approvals not carried out in accordance with the law, making interim relief unnecessary.

p. 28

Legal principles established

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  • A party seeking conservatory orders must demonstrate that their rights are under threat of violation, are being violated or will be violated, and that such violation is likely to continue unless the order is granted
  • Conservatory orders are granted on the inherent merit of a case, bearing in mind the public interest, constitutional values and proportionate magnitudes of the relevant causes
  • In a constitutional petition the burden lies on the petitioner to establish a prima facie case that constitutional rights were violated or threatened

Court orders

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  1. 1.The Notice of Motion application dated 4th October 2021 is dismissed
  2. 2.Costs to be in the cause
Jurisdiction invoked
Articles 22, 23(3)(c) and 159(2) of the Constitution of Kenya, 2010 and Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Olang & 18 others v Lake Victoria South Water Works Development Agency Limited & 7 others (Constitutional Petition E022 of 2021) [2024] KEELC 1320 (KLR)", Case Analysis (2024). Constitutional Petition (Notice of Motion dated 4th October 2021) filed 18th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1320/eng@2024-03-11

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