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ELCDismissedChamber summons dated 1/09/2020 in Petition dated 1/09/2020 (Siaya ELC)· [2024] KEELC 4723 (KLR)

Nicolus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) (Environment & Land Petition 2 of 2021) [2024] KEELC 4723 (KLR)

Environment and Land Court of Kenya
13 June 2024
AKA. Y. Koross
4,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Siaya court refused emergency orders halting gold mining in Ramba, but the main environmental petition remains alive for full hearing.

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 Siaya (Koross J) on a chamber summons dated 1/09/2020 in which the petitioner, Abidha Nicholus, sought conservatory orders pending determination of his petition concerning gold mining activities in the Ramba area. The petition, mounted on his own behalf and that of the Ramba community, alleged illegal and unregulated mining, environmental pollution of river Odundu, trespass, threats to the petitioner, and denial of access to information by state agencies. The court's jurisdiction had earlier been upheld on appeal and remitted by the Supreme Court following a successful appeal from a 2021 ruling striking out the petition for want of jurisdiction. The court first disposed of a preliminary point that the application was brought by chamber summons rather than notice of motion under Rule 19 of the 2013 Practice Rules, holding this a curable technicality under Article 159(2)(d). Applying five tests for conservatory orders - prima facie case, irreparable harm, public interest, nugatory petition, and the bar on final orders at interlocutory stage - the court found the 2nd and 3rd respondents had allegedly not demonstrated a s.32 Mining Act licence, and some licences issued only after the petition was filed. However, the court found no prima facie case on the alleged threats and collusion, no nugatory risk, and no demonstrated real danger, and held that the access-to-information limb sought final orders impermissibly at an interlocutory stage. The summons was dismissed with costs in the cause; directions on the main petition were set for 30/09/2024.

Key legal issues

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01

Whether the petitioner established a prima facie case with a probability of success

Holding

Partially: the 2nd and 3rd respondents had not shown compliance with s.32 of the Mining Act and EMCA licensing requirements before commencing mining, but the threats/collusion claims failed

Reasoning

The court noted uncertainty over the property on which mining occurred (plot 711 vs 716) and absence of official searches for other alleged parcels. However, the 2nd and 3rd respondents allegedly did not demonstrate they obtained a mining licence under s.32 of the Mining Act, and some requisite licences were only issued after the petition was filed, justifying the petitioner's entitlement to seek conservatory orders on that limb.

p. 9
02

Whether the petition would be rendered nugatory if conservatory orders were refused

Holding

No; the reliefs sought in the petition remain capable of being granted and licences have since been issued

Reasoning

The court defined 'nugatory' from Black's Law Dictionary and examined the petition's reliefs, finding they would not be destroyed by refusal of conservatory orders, particularly since some statutory licences had been issued by the 6th respondent to the 2nd and 3rd respondents.

p. 10
03

Whether irreparable harm or real danger was demonstrated

Holding

No; the documents did not demonstrate actual threats or collusion

Reasoning

Applying the Wambora definition of 'real danger' as imminent, evident, true and actual, the court found the petitioner's documents did not show actual threats to his life or collusive activities. The court also weighed public interest, noting the 2nd and 3rd respondents allegedly employed close to 100 people whose livelihoods would be curtailed by the orders.

p. 10
04

Whether access-to-information orders could issue at the interlocutory stage

Holding

No; final substantive rights cannot be granted at interlocutory stage

Reasoning

Guided by Lenaola J in John Harun Mwau and FIDA-Kenya, the court held that enforcing the Article 35 right to information simultaneously with pending proceedings subjects a substantive right to interlocutory tests, reducing its status, which is untenable.

p. 9

Legal principles established

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  • A court considering conservatory orders in constitutional petitions applies five tests: prima facie case, irreparable harm, public interest, whether the petition would be rendered nugatory, and the bar against issuing final substantive orders at the interlocutory stage
  • The right to information cannot be enforced through final substantive orders at the interlocutory stage of pending proceedings
  • Procedural defects in how a constitutional petition application is mounted (summons instead of notice of motion) are curable technical errors under Article 159(2)(d)

Court orders

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  1. 1.The chamber summons dated 1/09/2020 is dismissed
  2. 2.Costs shall be in the cause
  3. 3.Parties to appear before the court for directions on disposal of the main petition on 30/09/2024

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 23, 26, 27(1), 28, 35(1), 40, 42, 43(1), 47, 69(1), 70, 73, 75, 159(2)(d)
  • Environment Management and Co-ordination Act (EMCA)Section 87
  • Mining ActSections 32, 53
  • Environment and Land Court ActSections 13(3), 18(a)
  • Water Quality RegulationsRegulations 2 and 4
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 19
  • Occupational Safety and Health Act

Cases cited (8)

  • Platinum Distillers Limited v Kenya Revenue Authority
    [2019] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Giella vs. Cassman Brown & Company
    [1973] EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd
    (2003) eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    [2011] eKLR
  • Martin Nyaga Wambora v Speaker of The County Of Assembly Of Embu & 3 Others
    [2014] eKLR
  • Federation of Women Lawyers-Kenya & 28 Others v Attorney General & 8 Others
    [2015] eKLR
  • John Harun Mwau v Linus Gitahi & 13 others
    [2016] eKLR
Jurisdiction invoked
Article 23 of the Constitution; Section 13(3) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nicolus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) (Environment & Land Petition 2 of 2021) [2024] KEELC 4723 (KLR)", Case Analysis (2024). Chamber summons dated 1/09/2020 in Petition dated 1/09/2020 (Siaya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4723/eng@2024-06-13

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