Munyua & 8 others (Suing as Njenga Cresent Owners) v Francis Murigi Njenga (F.M.N) Family & another; City County Director of Urban Planning Development & Management & another (Interested Parties) (Environment & Land Petition E003 of 2023) [2024] KEELC 5153 (KLR)
The bottom line
#The Environment and Land Court ordered a Karen landowner to unblock a natural stormwater drain within 14 days, confirming Kenyan courts can impose environmental easements on private land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners are entitled to an environmental easement over the 1st Respondent's land for storm water drainage
Yes - the court found the four essential characteristics of an easement (per Re Ellenborough Park) were met and imposed an easement by way of mandatory injunction to unblock the drainage
The court applied the four Re Ellenborough Park characteristics: dominant tenement (Petitioners' parcels), servient tenement (1st Respondent's land), diversity of ownership, and capability of lying in grant, since the 1st Respondent's land lies on the lower slope towards Ndege road where storm waters join the main drainage. A site visit confirmed a continuous channel behind the Petitioners' plots which the 1st Respondent refused to continue on his plot.
Whether the blockage of the natural drainage threatens the Petitioners' right to a clean and healthy environment
Yes - the court found the blockage likely to expose the Petitioners to environmental hazards and waterborne diseases, breaching Articles 42 and 43 and section 3 of EMCA
Taking judicial notice that storm water washes dirt and waste, the court reasoned that water which cannot reach established drainage lines would pollute and expose residents to environmental hazards. The claim of likely exposure to waterborne diseases was found not far-fetched and deserving of protection.
Whether the court had jurisdiction despite the contention that the matter belonged to the National Environment Tribunal
The court held it had jurisdiction as the easement application lies to the court under section 113 EMCA, and constitutional rights claims cannot be ousted
The court distinguished the challenge to the EIA license from the easement and constitutional claims, noting sections 112-116 EMCA confer easement jurisdiction on the court, and relied on Abidha Nicholus (Supreme Court) that the ELC's jurisdiction cannot be ousted where breach of constitutional rights is alleged.
Whether there is a claim against the 2nd Respondent (NEMA)
NEMA ought to have addressed the complaint in liaison with Nairobi City County under its coordination mandate under section 9 of EMCA
Although NEMA contended the drainage issue fell under the County's planning mandate, the court held that NEMA is mandated to coordinate government agencies in environmental management and ought to have addressed the complaint in liaison with the County. However, no revocation order was made against it.
Legal principles established
#- An environmental easement may be imposed on private land under sections 112-116 of EMCA to facilitate conservation and protection of the environment, and such applications are made to the court, not the National Environment Tribunal
- This Court's jurisdiction is not ousted where a claim for breach of constitutional rights is alleged, notwithstanding the existence of the National Environment Tribunal
- Rights of way, rights of water and profits subsisting at first registration are overriding interests under section 28 of the Land Registration Act
Court orders
#- 1.A Declaration that the 1st Respondent's actions of blocking the natural drainage system through his PLOT LR. 2259/450 NDEGE LANE, KAREN threatens/violates Articles 25, 26, 28, 40 and 43 (1) (a) of the Constitution of Kenya 2010
- 2.A Declaration that the 1st Respondent's action of blocking the natural drainage system is arbitrary, wrongful, null and void and is to be stopped forthwith
- 3.An Order of mandatory injunction compelling the 1st Respondent under the supervision of the 2nd Respondent to within 14 days of the Judgment unblock the natural stormwater drainage on PLOT LR. 2259/450 NDEGE LANE and reinstate the natural flow of water from the neighbouring properties
- 4.An Order of permanent injunction barring the 1st Respondent from blocking the natural stormwater drainage on PLOT LR. 2259/450 NDEGE LANE, KAREN
- 5.Each party to meet their costs of the Petition
- Jurisdiction invoked
- Article 70(1) of the Constitution and sections 112-116 of the Environmental Management and Co-ordination Act, 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyua & 8 others (Suing as Njenga Cresent Owners) v Francis Murigi Njenga (F.M.N) Family & another; City County Director of Urban Planning Development & Management & another (Interested Parties) (Environment & Land Petition E003 of 2023) [2024] KEELC 5153 (KLR)", Case Analysis (2024). Petition dated 22nd September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5153/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.