Auto Ancillaries Limited v Kenya Urban Roads Authority & 3 others (Environment and Land Case 667 of 2015) [2024] KEELC 1795 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you don't need to own land to sue over environmental harm, awarding Kshs 10 million over flooding caused by drainage works.
What this practically means
#Executive summary
#Key legal issues
#Whether ownership of land is a prerequisite for the environmental rights claim
It is not; Article 42 protects every person and environmental degradation effects cross boundaries
The 2nd Defendant argued the Plaintiff's failure to produce a title was fatal. The court held Article 42 confers the right to a clean and healthy environment on every person regardless of ownership, and since the effects of environmental degradation know no boundaries, the ownership question was immaterial.
Liability of the 1st Defendant
Liable for commissioning a project that created flooding on adjacent roads and premises
The 1st Defendant commissioned the drainage works with good intentions but failed to consider the impact on adjacent roads and businesses, and had a responsibility to ensure solving one problem did not create others. It cannot escape liability.
Liability of the 2nd Defendant (County Government)
Liable to 10% for failure to discharge its storm water management function
Under Schedule 4, Section 11 of the Constitution, the 2nd Defendant is responsible for storm water management systems in built-up areas and water and sanitation services. It gave no evidence of attempts to address the Plaintiff's concerns despite a duty to safeguard the right to a clean environment.
Liability of the 3rd Defendant (contractor)
Liable as an agent required to carry out its duties with care
The contractor argued it merely implemented the design of the 1st Defendant. The court held an agent must carry out duties with care, relying on clause 23.1 of the contract requiring precautions to safeguard adjacent properties; the contractor adduced no evidence of mitigation or of advising the employer on the effects of the works.
Liability of the 4th Defendant (NEMA)
Not liable; claim dismissed
The claim against NEMA was founded on alleged approval of designs, which was not proved. No Environmental Impact Assessment was carried out and no complaint was made to NEMA's Complaints Committee. NEMA's nationwide mandate and limited reach depend on citizens discharging their responsibilities under section 2A of EMCA.
Quantum of damages
General damages of Kshs 10 million awarded as sought, apportioned 90% to the 1st and 3rd Defendants and 10% to the 2nd Defendant
Article 70 permits orders including compensation, and under clause 3 loss or injury need not be proved. The Defendants did not submit on quantum, and the court found the Kshs 10 million sought reasonable.
Legal principles established
#- Ownership of land is not a prerequisite to enforcement of the right to a clean and healthy environment under Article 42
- Under Article 70(3) an applicant need not demonstrate loss or injury to obtain relief for environmental violations
Court orders
#- 1.An order compelling the 1st and 2nd Defendants jointly and severally to permanently open up drainage points on Enterprise Road, all adjoining factories and all factories on the upper part of Enterprise Road to different exit points and redirect all waters and effluence from the Plaintiff's premises on LR 209/9276
- 2.An order compelling the 1st and 2nd Defendants jointly and severally to construct a closed drainage system to contain and carry all sewerage and storm water from all adjoining release points, the main road and all points of discharge to the river down past the Plaintiff's premises
- 3.Award of Kshs 10 million damages to the Plaintiff, borne by the 1st, 2nd and 3rd Defendants in accordance with apportioned liability (1st and 3rd Defendants 90%, 2nd Defendant 10%)
- 4.The Plaintiff to have the costs of the suit
- Jurisdiction invoked
- Articles 42 and 70 of the Constitution of Kenya (environmental rights enforcement)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Auto Ancillaries Limited v Kenya Urban Roads Authority & 3 others (Environment and Land Case 667 of 2015) [2024] KEELC 1795 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1795/eng@2024-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.