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ELCOtherConstitutional Petition (Meru ELC)· [2024] KEELC 4833 (KLR)

Amos Thuranira M'Rinjiru v Kenya Forest Service & others

Environment and Land Court of Kenya
12 June 2024
5,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling on two interlocutory applications in an environmental constitutional petition at the Environment and Land Court, Meru, before C K Nzili J. The petitioner, a Meru resident, sought a temporary order suspending any licence or authorisation for quarrying in Imenti forest, alleging violation of Articles 42 and 70 of the Constitution, absence of public participation, lack of parliamentary ratification under Article 71, and want of an environmental impact assessment. The interested party, joined on 22.5.2024, held a special use licence from the Kenya Forest Service dating to 2019 (succeeding H-Young Co. E.A Ltd, licensed from 2014), together with an EIA licence and audit, and applied to set aside the conservatory orders issued on 9.5.2024. The 2nd–4th respondents conceded the licences were procedurally issued but alleged breaches of licence conditions, including asphalt manufacture causing pollution and failure to restore the site. The court, applying the conservatory-order tests in Munya, Nubian Rights Forum and related authorities, held that the conceded licences under Section 46 of the FCMA and the absence of any scientific material, adverse regulatory reports or complaint by the petitioner meant no prima facie case of breach of the right to a clean and healthy environment was disclosed. The petitioner's application was dismissed with no order as to costs, the interim orders were vacated, and the respondents were directed to file substantive responses within 30 days, with the petition to be heard on a priority basis and mention on 18.7.2024.

Key legal issues

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01

Prima facie case for conservatory orders

Holding

The petitioner failed to disclose a prima facie case given the conceded lawful licences

Reasoning

The court found that the special use licence under Section 46 of the FCMA and the EIA licence were conceded as regular and lawful by the respondents. No scientific material, adverse reports or formal complaints were produced to show breach of the right to a clean environment, so the requisite prima facie case was not established.

p. 10
02

Burden of proof in environmental claims

Holding

The applicant failed to discharge the burden of proving immediate and apparent irreparable harm

Reasoning

The petitioner relied only on photographs and assertions of illegality. The court held that a court of law acts on tangible and cogent evidence, and the petitioner had not demonstrated a single complaint letter to the forester in charge challenging the quarrying activities from 2014 to present.

p. 10
03

Whether the petition would be rendered nugatory

Holding

The petition would not be rendered nugatory if the orders were not granted

Reasoning

Applying the tests in Munya and Nubian Rights Forum, the court found no real danger or prejudice to the petitioner pending the main hearing, and the petition would survive without interim preservation of the quarry status quo.

p. 10

Legal principles established

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  • A court of law acts on tangible and cogent evidence; the applicant for a conservatory order bears the burden of proving prima facie irreparable harm to the environment
  • Conservatory orders bear a public law connotation and are granted bearing in mind public interest and constitutional values

Court orders

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  1. 1.The petitioner's application for conservatory orders is dismissed with no order as to costs
  2. 2.The interim conservatory orders issued on 9.5.2024 are vacated or set aside
  3. 3.The respondents are directed to file their substantive responses to the petition within 30 days
  4. 4.The petition to be listed for hearing on a priority basis
  5. 5.Mention for directions on 18.7.2024

Authorities

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Legislation

  • Forest Act 2005Sections 42, 58
  • Forest Conservation and Management Act (FCMA)Sections 2, 7, 46, 48–52, 57, 66, Part V
  • Environmental Management and Co-ordination Act (EMCA)Sections 2, 4(2)(e), 58; Cap 387
  • Constitution of Kenya, 2010Articles 10, 23(3), 42, 61, 69, 70, 71
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 4, 22, 23, 25
  • Natural Resources Classes of Transactions Subject to Ratification (Cap 381)Section 4(2)
  • Fair Administrative Actions Actnull

Cases cited (19)

  • CREAW and another vs Speaker of the National Assembly and others
    (2017) eKLR
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & others
    (2014) eKLR
  • Nubian Rights Forum & others vs A.G. and others
    (2019) eKLR
  • B.O.M. Uhuru Secondary School vs City County Director of Education
    (2015) eKLR
  • Muslim for Human Rights & others vs A.G. & others
    (2011) eKLR
  • Makumi & 4 others vs Speaker of County Assembly of Kitui & another
    Constitutional Petition E001 of 2024 KEHC 2812 (K.L.R.)
  • Cabinet Secretary Ministry of Health vs Aura and 13 others
    Civil Application No. E583 of 2023 (2024) KECA
  • Bia Tosha Distributors Ltd vs Kenya Breweries Ltd & others
    Petition 15 of 2020 (2023) KESC 14 (K.L.R.)
  • Invesco Assurance Co. Ltd vs M.W. (Minor)
    (2016) eKLR
  • J.S.C. vs Speaker of the National Assembly & another
    (2013) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2013) eKLR
  • Kevin K Mwiti and others vs Kenya School of Law & others
    (2015) eKLR
  • Wilson Kaberia Nkunja vs the Magistrates and Judges Vetting Board
    (2016) eKLR
  • Martin Nyaga Wambora vs County Assembly of Embu and others
    Petition No. 7 of 2014
  • Thomas Edison Ltd vs Bathok
    (1912) 15 CLR 679
  • Communist Party of Kenya vs Nairobi Metropolitan Services and others
    (N.R.B.) E.L.C. Petition No. 8 of 2021
  • The Bloggers Association of Kenya (BAKE) vs Hon. AG & others
    (2018) eKLR
  • Adrian Kamotho Njenga vs Council of Governors & others
    (2020) eKLR
  • Luka vs Narok Bursaries Management Board and others
    Narok County Assembly (interested party) Constitution Petition No. E016 of 2023 (2024) KEHC 104 (K.L.R.)
Jurisdiction invoked
Articles 23(3), 42 and 70 of the Constitution of Kenya, 2010; Rule 23 of the Mutunga Rules

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, "Amos Thuranira M'Rinjiru v Kenya Forest Service & others", Case Analysis (2024). Constitutional Petition (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4833/eng@2024-06-12

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