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ELCPartially AllowedELC Suit at Meru (amended plaint filed 14.10.2021; plaint originally dated 23.1.2013)· [2024] KEELC 5369 (KLR)

Rutere & 11 others v Reynolds Construction Company (NIG) Ltd (Environment & Land Case 28 of 2013) [2024] KEELC 5369 (KLR)

Environment and Land Court
10 July 2024
29,473 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~118 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded 12 Meru residents KES 15 million each after a road contractor's asphalt plant polluted their village — an EIA licence is no shield.

What this practically means

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Executive summary

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Twelve plaintiffs, residents and landowners of Kigane Village, Nkuene, Meru County, sued a road contractor for erecting and operating an asphalt plant in their residential neighborhood between 2010 and 2013, alleging pollution of air, soil, water and noise and damage to crops, livestock, homes and health, and claiming special damages of Kshs.108,597,500/=, general damages, expert fees and a restoration order. The defendant denied residence and ownership, pleaded full compliance with the NEMA-issued EIA license and monthly regulatory inspections, and contended the claims lacked causal proof. The court heard eleven plaintiff witnesses, two experts and three defense witnesses, and conducted a site visit which revealed unrehabilitated debris, tar and oil remnants and homesteads as close as four meters from the site. Holding that an EIA license is not a statutory defense, that the defendant failed to implement the license's mitigation conditions, produced no monthly inspection reports, ignored a NEMA restoration order, and failed to call key witnesses, the court found liability established, applying the polluter-pays, precautionary and strict liability principles. Special damages were disallowed for lack of strict proof, but each plaintiff (save for the abated claim) was awarded general damages of Kshs.15,000,000/=, plus Kshs.20,000,000/= into an environmental restoration fund under Section 117 of EMCA and Kshs.1,500,000/= in expert fees, with interest and costs to the plaintiffs.

Key legal issues

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01

Locus standi and capacity of the plaintiffs

Holding

The plaintiffs, as owners, occupiers and Project-Affected Persons (PAPS) neighboring the plant, had capacity to sue individually and collectively under Articles 42, 69 and 70 of the Constitution.

Reasoning

Title documents produced showed ownership predating 2010 and the parcels adjoined the plant; the 1st plaintiff had been interviewed during the EIA public participation and the defendant's engineer had visited his land after a complaint, estopping the defendant from denying his residence. In the absence of rival evidence, the plaintiffs' presence and ownership were uncontested.

p. 27
02

Liability for breach of the right to a clean and healthy environment

Holding

The defendant was liable for breaching EMCA and the plaintiffs' constitutional right to a clean and healthy environment by failing to comply with EIA license conditions and ignoring the NEMA restoration order.

Reasoning

The court found the defendant failed to implement mitigation and remedial measures in the EIA license, study and management plan, produced no monthly NEMA inspection reports despite pleading them, did not call the NEMA lead expert Albert Muriuki (attracting an adverse inference), and ignored the restoration order. Scientific evidence from the plaintiffs' designated-laboratory expert proved pollutants above permitted levels with the plant as point source. Strict liability under Rylands v Fletcher applied to the non-natural use of land.

p. 43
03

Proof of special damages

Holding

The claim for special damages of Kshs.108,597,500/= was disallowed for lack of strict proof.

Reasoning

The valuation report by Nicholas Mwenda was undated, unsigned, unstamped, its maker not called, and lacked acreage, parcel numbers, farm records, receipts, licenses and supporting professional reports. None of the plaintiffs produced farm records, agricultural or livestock officers' reports, tenancy agreements or business records to substantiate the pleaded losses.

p. 39
04

Public interest in development versus environmental rights

Holding

The right to a clean and healthy environment could not be sacrificed at the altar of public interest and development.

Reasoning

Relying on Article 10 of the Constitution and the sustainable development principle, the court held that an EIA and environmental management plan exist precisely to reconcile development with environmental protection; the road project's benefits did not excuse non-compliance with license conditions or disregard of the neighbors' rights.

p. 44

Legal principles established

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  • An EIA license and its approval do not relieve a project proponent of the statutory and constitutional duty to implement mitigation measures and to maintain a clean and healthy environment for neighbors
  • Where a party has custody of specific evidence (e.g., regulator inspection reports) and fails to produce it, the court may draw an adverse inference
  • Special damages must be strictly pleaded and proved
  • Under Article 70(3) of the Constitution an applicant alleging breach of the right to a clean and healthy environment need not demonstrate the loss incurred or injury suffered
  • A lawful restoration order issued by NEMA enjoys a presumption of regularity which the proponent must rebut, and once proved it shifts the evidential burden to the proponent

Court orders

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  1. 1.General damages of Kshs.15,000,000/= to each plaintiff, save for the abated claim
  2. 2.A monetary restoration figure of Kshs.20,000,000/= to be paid to an environmental restoration fund in line with Section 117 of EMCA, to be held in trust by the plaintiffs and the regional NEMA to rehabilitate the environment surrounding the site
  3. 3.Kshs.1,500,000/= to the plaintiffs' expert fees granted
  4. 4.Interest on the general damages at court rates from the date of judgment
  5. 5.Costs of the suit to the plaintiffs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 21, 22, 23, 26(1), 40, 42, 47, 69, 70(1) & (3)
  • Environmental Management and Co-ordination Act (EMCA)Sections 2, 3, 58, 87, 108, 109, 110, 111, 117, 119
  • Environmental (Impact Assessment and Audit) RulesRegulations 7 and 17
  • EMCA (Waste Management) RegulationsRegulation 17; Fourth Schedule
  • National Environment (Noise Standards and Control) RegulationsFirst Schedule, Regulations 3(2) and 6
  • NEMA (Noise and Excessive Vibrations Pollution Control) Regulations 2009L.N. No. 20 of 2009
  • Evidence ActSections 107, 108, 109
  • Water Act; Factories Act; Trespass Act; Radiation Protection Act; Public Health Act; Mining Actsectoral environmental laws (generally cited)
  • Rio Declaration on Environment and Development 1992Principles 10, 13 and 15
  • African Charter on Human & Peoples RightsArticle 24
  • International Covenant on Civil and Political RightsArticle 12
  • 2030 Agenda for Sustainable DevelopmentSDGs 3, 6, 13, 14, 15, 16

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Jurisdiction invoked
Articles 42, 69 and 70 of the Constitution of Kenya and Sections 3, 108, 109, 110, 111 and 117 of the Environmental Management and Co-ordination Act (EMCA)

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, "Rutere & 11 others v Reynolds Construction Company (NIG) Ltd (Environment & Land Case 28 of 2013) [2024] KEELC 5369 (KLR)", Case Analysis (2024). ELC Suit at Meru (amended plaint filed 14.10.2021; plaint originally dated 23.1.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5369/eng@2024-07-10

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