Friends of Oloolua Forest & 2 others v Kenya Nuclear Regulatory Authority & 5 others (Environment & Land Case E263 of 2024) [2024] KEELC 6626 (KLR)
The bottom line
#Kenya's Environment and Land Court has frozen all activities in Oloolua Forest, including storing nuclear waste, until the main case is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether to grant interim preservation/injunction orders in respect of Oloolua Forest pending determination of the suit
The Court found a prima facie case, irreparable harm and balance of convenience favouring the plaintiffs, applying the precautionary principle, and issued preservation orders restraining the defendants' activities in the forest
The Court reasoned that Articles 69 and 70 of the Constitution confer on the plaintiffs a right to sue for environmental protection without proving loss, and empower the Court to prevent harmful acts. The plaintiffs showed the forest is a gazetted public forest not available for alienation, and that ongoing activities threaten it with destruction that damages cannot compensate. Guided by the precautionary principle under EMCA and the Environment and Land Court Act, the Court found the balance of convenience favoured preservation and granted the interim orders sought.
Locus standi of the plaintiffs to bring the environmental suit
The plaintiffs, as persons alleging threatened violation of the right to a clean and healthy environment, have a constitutional right to institute the suit without demonstrating personal loss
Article 70 permits any person alleging denial, violation, infringement or threat to the right to a clean and healthy environment to apply to court for redress without demonstrating loss or injury. Articles 22 and 258 reinforce the right of every person to sue on their own behalf, on behalf of others or in the public interest. The Court accordingly held the plaintiffs had a constitutional right to initiate the suit.
Legal principles established
#- The conditions for a temporary injunction are to be applied as separate, distinct and sequential hurdles
- If a prima facie case is not established, the court need not consider irreparable injury or balance of convenience
- The precautionary principle applies where there are threats of environmental damage, such that lack of full scientific certainty does not justify postponing protective measures
Court orders
#- 1.Pending the hearing and final determination of the suit, an order of preservation of Oloolua Forest restraining the 1st and 2nd Defendants from undertaking any works in the Oloolua Forest, including felling of trees, digging of foundations, trenching, building, walling, roofing or erecting structures, and from entering or disturbing the forest ecosystems in Oloolua Forest or on Title No. 23268 excised therefrom
- 2.Pending the hearing and final determination of the suit, an order restraining the 2nd Defendant, its transporters and agents from ferrying and delivering nuclear and radioactive waste or other hazardous material into Oloolua Forest and storing waste on Title No. 23268
- 3.Pending the hearing and final determination of the suit, an interim order restraining the 1st Defendant from further leasing, selling, transferring, charging, alienating or otherwise disposing of Title No. 23268
- 4.Pending the hearing and final determination of the suit, an order prohibiting the 3rd to 6th Defendants from further alienating, allocating and excising any part of Oloolua Forest to private land or private use
- 5.Costs of the application shall be in the cause
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Environment and Land Court Act; Articles 69, 70, 22 and 258 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Friends of Oloolua Forest & 2 others v Kenya Nuclear Regulatory Authority & 5 others (Environment & Land Case E263 of 2024) [2024] KEELC 6626 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6626/eng@2024-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.