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ELCPartially AllowedPetition dated 24th February 2020· [2024] KEELC 6962 (KLR)

Charles Wachira & 3 Others v China Wu Yi Limited & 2 Others

Environment and Land Court
17 October 2024
3,599 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered China Wu Yi to decommission and rehabilitate its Kajiado quarry within six months after finding residents' environmental rights violated.

What this practically means

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Executive summary

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The Petitioners, officials of Kerarapon Residents Association and Kerarapon Water Association, challenged quarrying activities by the 1st Respondent on LR No. Ngong/Ngong/2627, land leased from the Ministry of Agriculture for Southern bypass construction material, and the 2nd Respondent's proposed Integrated Waste Management facility on the same parcel. They sought declarations of unconstitutionality, declarations against public policy, and mandamus to decommission and rehabilitate the quarry. The Respondents raised the doctrines of exhaustion and constitutional avoidance, contending the National Environment Tribunal was the proper forum, and denied any breach of constitutional rights. The court held that under Section 13 of the Environment and Land Court Act and the Supreme Court's decision in Nicholus Abidha, it had jurisdiction over environmental constitutional violations, and it was not in the interest of justice to refer parties to the Tribunal four years after filing. On the merits, relying on the unchallenged Batiman Consulting Limited report on cracked and compromised buildings, the court found the Petitioners' right to a clean and healthy environment had been infringed by the 1st Respondent's quarrying, which had continued beyond completion of the bypass. However, the claim against the 2nd Respondent's waste facility was premature, as the project was on hold and no EIA Licence had issued. The petition partially succeeded: a declaration issued that the quarrying was unconstitutional and against public policy; mandamus ordered the 1st Respondent to decommission the 40-acre quarry and rehabilitate it within six months per its August 2019 rehabilitation plan; and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the ELC was the proper forum given the exhaustion doctrine and the National Environment Tribunal

Holding

The court had jurisdiction under Section 13 of the ELC Act; nothing prevented it from hearing the petition, and referring parties to the Tribunal four years after filing would not be in the interest of justice

Reasoning

The court relied on Section 13 of the Environment and Land Court Act and the Supreme Court decision in Nicholus Abidha, which affirmed liberalized locus standi and vested the ELC with jurisdiction over environmental constitutional violations. Though the petitioners might have gone to the National Environment Tribunal, the objection was raised too late and remitting the parties four years after filing would frustrate access to justice.

p. 7
02

Whether the 1st Respondent's quarrying activities infringed the Petitioners' right to a clean and healthy environment

Holding

Yes. The quarrying activities infringed the Petitioners' rights and the extended quarrying ought to come to a close; mandamus was issued to decommission and rehabilitate the quarry

Reasoning

The court relied on the unchallenged Batiman Consulting Limited expert report documenting cracked foundations, tremors, noise and dust affecting residents. It found these factors were linked to the quarrying activities and that the 1st Respondent had extended quarrying even after completion of the Southern bypass. The court found the right to a clean and healthy environment infringed and ordered decommissioning within six months per the August 2019 rehabilitation plan.

p. 8
03

Whether the intended Integrated Waste Management facility by the 2nd Respondent is unconstitutional

Holding

The claim was premature since the project had not commenced and had not been issued an EIA Licence; petitioners would have an opportunity to participate in the EIA process

Reasoning

The 2nd Respondent had shelved the project to prioritize decommissioning of the existing Ngong dumpsite. The Environmental and Social Impact Assessment Study of 2018 had drawn an improvement notice and no licence had issued. The court found petitioners would have the opportunity to interrogate the project during the EIA process under EMCA and declined to grant orders on this limb.

p. 8

Legal principles established

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  • Locus standi in environmental matters has been liberalized and the ELC has jurisdiction over allegations of environmental constitutional violations notwithstanding the existence of the National Environment Tribunal
  • A party invoking Article 22(1) must show the rights said to be infringed and the basis of the grievance, demonstrating a link between the party, the constitutional provisions and the manifestation of infringement
  • Where there is a clear statutory procedure for redress, that procedure should be strictly followed (exhaustion doctrine)

Court orders

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  1. 1.A declaration that the quarrying activities being conducted by the 1st Respondent on LR. No. Ngong/Ngong/2627 are unconstitutional and against Public Policy and National Interest
  2. 2.An Order of Mandamus compelling the 1st Respondent to decommission the quarrying on forty (40) acres of the portion of the land and to rehabilitate and restore it to its former state, within six (6) months from the date of judgment and in accordance with the rehabilitation plan dated August 2019, the Environment Impact Assessment and the Licence Conditions
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Environment Management and Coordination Act (EMCA)Section 58
  • Environment and Land Court ActSection 13(1) and (2)(a)-(e)
  • Environment (Impact Assessment and Audit) RegulationsParts II and III
  • Evidence ActSections 107 and 108
  • Constitution of KenyaArticles 22, 22(1), 23(3), 162(2)(b)

Cases cited (9)

  • Republic Vs. NEMA Exparte Peter Bogonko
    (2006) eKLR
  • Borbor & 2 Others Vs. NEMA
    (2022) KEELC 3947 KLR
  • Speaker of National Assembly Vs Karume
    1992 KLR
  • KKB Vs. SCM & 5 Others
    (2022) KEHC 289 KLR
  • Communications Commission of Kenya & 5 Others Vs. Royal Media Services Ltd and 5 Others
    (2014) eKLR
  • Anarita Karimi Njeru Vs. Republic
    (1979) KLR 154
  • Gatirau Peter Munya Vs. Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Martin Nyaga Wambora Vs. Speaker of the County Assembly of Embu & 3 others
    (2014) eKLR
  • Nicholus Abidha Vs. AG. & 7 Others
    Petition E007 of 2023 (2023) KESC 113 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act

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, "Charles Wachira & 3 Others v China Wu Yi Limited & 2 Others", Case Analysis (2024). Petition dated 24th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6962/eng@2024-10-17

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