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ELCPartially AllowedPetition dated 1st February 2024· [2024] KEELC 6157 (KLR)

Okina v Mele & 2 others (Environment & Land Petition E001 of 2024) (Environment and Land) [2024] KEELC 6157 (KLR)

Environment and Land Court
26 September 2024
EWE. K. Wabwoto
2,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Voi court shut down a neighbour's spray-painting business, ruling that a county business licence does not excuse pollution that harms residents' health.

What this practically means

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Executive summary

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The Petitioner, owner of parcel VOI/NDARA "A"/3737 where he resides, petitioned against the Respondents operating a garage adjacent to his home, alleging that spray painting of motor vehicles and noise violated his right to a clean and healthy environment under Article 42. He sought a declaration, a permanent injunction, general damages, punitive/aggravated damages and costs, citing his asthmatic condition and hospitalisation, and NEMA's warning notice to the Respondents. The Respondents, holders of a single business permit from the County Government of Taita Taveta, denied adjacency, contended that asthma has many triggers and that the Petitioner failed to isolate the allergen, and urged dismissal with costs. The Court framed two issues: whether the Petitioner discharged the burden of proof of violation, and the appropriate reliefs. Relying on Article 70's provision that a person need only allege a denied, violated, infringed or threatened environmental right, the Court rejected the proximity objection, found the Respondents' activities had adversely affected the Petitioner, and held that the county business licence was no defence to a constitutional violation. Damages are discretionary; on comparative constitutional damages jurisprudence the Court declined the Kshs 2,000,000 sought and awarded Kshs 150,000 as general damages. On 26th September 2024 the Court declared the spray painting a violation of Article 42, issued a permanent injunction against motor vehicle repairs and spray painting at Voi/Ndara A/3024, awarded general damages of Kshs 150,000, and awarded the Petitioner costs of the petition capped at Kshs 50,000/-, payable by the Respondents.

Key legal issues

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01

Whether the right to a clean and healthy environment under Article 42 was violated

Holding

Yes - the Respondents' spray painting activities adversely affected the Petitioner and violated his Article 42 right

Reasoning

The Respondents did not dispute the existence of the impugned activities and adduced no controverting evidence. NEMA issued a warning/improvement notice after inspection, and a medical letter corroborated the Petitioner's asthmatic illness. The proximity argument failed because Article 70 permits redress where a right is threatened, and the county licence was no defence.

p. 5
02

What reliefs are appropriate

Holding

Declaration, permanent injunction, and general damages of Kshs 150,000, plus capped costs

Reasoning

Article 23(3) empowers the Court to grant declarations, injunctions and compensation, and Section 3 of EMCA mandates orders to stop environmental violations. Damages are discretionary; guided by comparative constitutional damages cases, the Court assessed Kshs 150,000 as adequate compensation rather than the Kshs 2,000,000 sought.

p. 5

Legal principles established

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  • A licence from the County Government is not a defence to a constitutional violation of environmental rights
  • Constitutional violations must be proved with clear evidence, not in a factual vacuum
  • Under Article 70 a person need not prove proximity of properties to seek redress for a threatened environmental right

Court orders

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  1. 1.A declaration that the Respondents' spray painting of motor vehicle activities on parcel Voi/Ndara A/3024 amount to a violation of the Petitioner's right to a clean and healthy environment
  2. 2.A permanent injunction barring the Respondents from continuing with motor vehicle repairs and spray painting at the said property
  3. 3.General damages of Kshs 150,000 awarded to the Petitioner
  4. 4.Costs of the Petition awarded to the Petitioner capped at Kshs 50,000/-, to be paid by the Respondents
Jurisdiction invoked
Articles 42, 70 and 23(3) of the Constitution; Section 3 of EMCA

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okina v Mele & 2 others (Environment & Land Petition E001 of 2024)  (Environment and Land) [2024] KEELC 6157 (KLR)", Case Analysis (2024). Petition dated 1st February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6157/eng@2024-09-26

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