Ndegwa v Amakoye & 3 others (Environment & Land Case 287 of 2010) [2024] KEELC 3537 (KLR)
The bottom line
#A Mombasa court halted an apartment construction exceeding two levels and awarded a neighbour Kshs. 11.5 million because proper environmental and planning approvals were never obtained.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction vis-à-vis the doctrine of exhaustion
The Court held it had jurisdiction despite the exhaustion doctrine because the Liaison Committee for Mombasa County had not been established and there was no decision of the County Executive Committee Member to appeal against, invoking Section 93 of the Physical and Land Use Planning Act.
The 1st and 2nd Defendants objected that the plaintiff should have first gone to the County Physical and Land Use Planning Liaison Committee. The court accepted the exhaustion doctrine in principle but found that under Section 61(3) the Committee's jurisdiction can only be invoked where there is a decision of the County Executive Committee Member, and the Committee for Mombasa had not been established. Section 93 therefore conferred original jurisdiction on the Environment and Land Court.
Locus standi of the plaintiff
The plaintiff had full legal standing notwithstanding that her ownership of the property she occupied was disputed in other pending suits, because she was in possession and occupation of the suit premises.
The defendants argued that the plaintiff's ownership of Plot MN/I/3160 was disputed in pending litigation, so she lacked standing. The court held she had sufficient interest as the occupier, and that it would be sub judice under Section 6 of the Civil Procedure Act for the defendants to litigate ownership in these proceedings; the parties should await the outcome of the pending suits.
NEMA approval and EIA compliance
The development never had the requisite approvals including a proper EIA study and licence under Section 58 of EMCA, and the approval process disregarded public input.
DW-1 admitted construction commenced before the EIA licence issued, that no proper EIA study was undertaken (only a project report with consultation limited to a bar owner and a guard), that the iron sheets for dust containment ran out, and that licence conditions were breached. The court found this a serious irregularity rendering the approvals defective.
Change of user and development permission
Although a change of user was obtained and advertised, the required public participation, including consultation of the plaintiff, was not undertaken, and the development did not comply with the zoning of the New Nyali area.
The court traced the requirements of the repealed Physical Planning Act for change of user as Class 'A' development, noted the newspaper advertisement, but found that public participation as required by law was not undertaken and that the New Nyali area was planned for single dwelling residences, not multiple dwelling residences, so the development exceeded permitted levels.
Nuisance and violation of the right to a clean and healthy environment
The court accepted the plaintiff's evidence that the construction activities amounted to nuisance and pollution violating her Article 42 right, but only to the extent of her concession that the building need not be demolished.
The plaintiff testified to dust emissions, noise, lack of dust screens, workers urinating on her land, and construction at night and on Sundays, aggravating her condition as an asthmatic with one lung. The defendants adduced no credible controverting evidence. The court invoked Articles 42, 69 and 70 of the Constitution and accepted her evidence of nuisance and environmental pollution.
Damages
General damages of Kshs. 10,000,000/- and exemplary damages of Kshs. 1,500,000/- were awarded against the 1st, 2nd and 3rd defendants (as ordered, against the 1st and 2nd), the claim fitting the second Rookes v Barnard category of profit-making conduct exceeding compensable harm.
The court applied the Rookes v Barnard categories for exemplary damages, holding the plaintiff was a victim of the punishable behaviour and that the defendants' profit-driven conduct - building beyond approvals for gain - justified an exemplary award, tempered by the restraint Lord Devlin prescribed.
Legal principles established
#- Where the statutory liaison committee has not been established, disputes relating to physical and land use planning fall to be heard by the Environment and Land Court under Section 93 of the Physical and Land Use Planning Act
- A party cannot invoke the exhaustion doctrine to bar access to court where the authority failed to communicate its decision, thereby denying the party the opportunity to appeal
- A person alleging violation of the right to a clean and healthy environment under Article 42 need not demonstrate loss or injury to obtain redress
Court orders
#- 1.Declaration that the Court has jurisdiction notwithstanding the doctrine of exhaustion, based on Section 93 of the Physical and Land Use Planning Act
- 2.Judgment entered in favour of the plaintiff against the 1st, 2nd and 3rd defendants in terms of the Plaint dated 18th August 2010; the case against the 4th defendant dismissed
- 3.Declaration that the development on Plot No. LR. No. 3161/I/MN is illegal and unlawful, proceeding on unapproved building plans or based on fraudulent, ultra vires and null and void approvals
- 4.Declaration that it was illegal and unlawful for the defendants to disregard the improvement order dated 15th July 2010
- 5.Declaration that the refusal to erect dust screens severely interfered with the plaintiff's right to a clean and healthy environment under Article 42 of the Constitution and Section 3 of EMCA
- 6.Declaration that no development above 2 levels was then allowed in the New Nyali area and the 4-level development was and remains irregular and an illegal structure
- 7.Perpetual injunction restraining the 1st and 2nd defendants from any further activity, building, construction or development on Plot No. LR. No. 3161/1/MN above 2 levels
- 8.General damages for pain and suffering of Kshs. 10,000,000/- awarded against the 1st and 2nd defendants jointly and severally
- 9.Punitive damages of Kshs. 1,500,000/- awarded against the 1st and 2nd defendants jointly and severally
- 10.Interest on the damages at court rate from the date of judgment until fully paid
- 11.Costs of the suit awarded to the plaintiff, borne by the 1st and 2nd defendants jointly and severally; no costs to the 4th defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Sections 13 and 93 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndegwa v Amakoye & 3 others (Environment & Land Case 287 of 2010) [2024] KEELC 3537 (KLR)", Case Analysis (2024). ELC Civil Suit No. 289 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3537/eng@2024-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.