Charles Wachira & 3 Others v China Wu Yi Limited & 2 Others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC was the proper forum given the exhaustion doctrine and the National Environment Tribunal
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
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.
Whether the 1st Respondent's quarrying activities infringed the Petitioners' right to a clean and healthy environment
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
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.
Whether the intended Integrated Waste Management facility by the 2nd Respondent is unconstitutional
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
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.
Legal principles established
#- 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
#- 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.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.Each party to bear own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.