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ELCAllowedNot stated in the judgment· [2024] KEELC 6626 (KLR)

Friends of Oloolua Forest & 2 others v Kenya Nuclear Regulatory Authority & 5 others (Environment & Land Case E263 of 2024) [2024] KEELC 6626 (KLR)

Environment and Land Court
23 July 2024
3,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is an inter partes ruling on the Plaintiffs' Notice of Motion dated 1st July 2024 seeking interim preservation orders in respect of Oloolua Forest in Karen, Nairobi. The 1st Plaintiff is a community-based organisation involved in conservation of the forest; the 2nd Plaintiff is an environmental public interest company. They sued the National Museums of Kenya, the Kenya Nuclear Regulatory Authority, Kenya Forest Service and other state agencies, alleging that the 1st Defendant unlawfully acquired 183.76 hectares of the gazetted forest under Title No. 23268 and leased part of it to the 2nd Defendant, which has established a Central Radioactive Waste Processing Facility and a CBRN Reference Centre within the forest, felling trees and storing nuclear and hazardous waste. The Plaintiffs sought, ultimately, cancellation of the title and eviction, and interlocutory preservation orders. None of the Defendants entered appearance or responded despite service. M.D. Mwangi J held that Articles 69, 70, 22 and 258 of the Constitution entitled the Plaintiffs to sue without proving injury, found a prima facie case, irreparable harm incapable of monetary compensation, and balance of convenience favouring preservation under the precautionary principle embodied in EMCA and the Environment and Land Court Act. The Court issued preservation orders restraining all works and disturbance of the forest, the ferrying and storage of nuclear and radioactive waste, further dealings with Title No. 23268, and further alienation or excision of any part of the forest by the 3rd to 6th Defendants, with costs in the cause, pending hearing and determination of the suit.

Key legal issues

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01

Whether to grant interim preservation/injunction orders in respect of Oloolua Forest pending determination of the suit

Holding

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

Reasoning

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.

p. 6
02

Locus standi of the plaintiffs to bring the environmental suit

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Community Groups Registration Act
  • Companies Act
  • Forest Conservation and Management Act
  • Physical and Land Use Planning Act
  • National Museums and Heritage ActSection 3
  • National Museums Act
  • Constitution of Kenya, 2010Articles 2(6), 22, 258, 69, 70, 162(2)
  • Environmental Management and Co-ordination ActSection 2
  • Environment and Land Court Act

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Ltd v John Bonde Nielsen & 2 others
    [2014] eKLR
  • Nicholas Njeru Muturi v Thome Dynamics Limited & another
    [2022] eKLR
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

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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, "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.