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ELCDismissedPetition dated 12th April 2022· [2024] KEELC 7350 (KLR)

Muriuki & 5 others v China Wu Yi Company Limited & another (Constitutional Petition 1 of 2022) [2024] KEELC 7350 (KLR)

Environment and Land Court
7 November 2024
JMJ. M. Mutungi
5,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed residents' claims against a road project because they couldn't prove land ownership, rights violations, or inadequate public participation.

What this practically means

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Executive summary

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The six Petitioners, led by Peter Chomba Muriuki, filed a constitutional petition at Kerugoya alleging that the Respondents, engaged in constructing the Sagana-Marua dual carriage highway, violated their rights under Articles 10, 29(d), 40, 42, 47 and 69(1) of the Constitution through quarrying and construction activities near their home. They sought declarations of violation, general and aggravated damages, a permanent injunction, and costs. The 1st Respondent denied liability, asserting valid EIA licensing, meaningful public participation, compliance with air quality regulations, and regular environmental audits. The 2nd Respondent contended that the suit violated Section 67(a) of the Roads Act, that special damages were unproven, and that it held a valid NEMA EIA licence. The Court framed three issues: ownership of the suit property, adequacy of public participation, and infringement of rights. On the first, it found the Petitioners' title documents related to parcel 5010 rather than the claimed parcel 5040, making ownership unascertainable. On the second, applying the Mui Coal Basin principles and accounting for COVID-19 lockdown conditions, the Court found public participation adequate. On the third, applying Anarita Karimi Njeru and Section 107 of the Evidence Act, it held that the Petitioners' allegations were generalized, the photographs unauthenticated, the health card irrelevant, and no expert evidence adduced on environmental harm. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Ownership of the suit property

Holding

The Court could not ascertain ownership of parcel 5040 because the title and search produced related to parcel 5010

Reasoning

Under Sections 24(a) and 26 of the Land Registration Act, a certificate of title is prima facie and conclusive evidence of ownership, challengeable only for fraud, misrepresentation or illegal acquisition. The Petitioner claimed parcel 5040 but only produced title documents for 5010, leaving the Court unable to determine which parcel was the subject of the claim or the relationship between the two parcels.

p. 6
02

Public participation

Holding

The Respondents conducted adequate public participation given the COVID-19 lockdown circumstances

Reasoning

Applying the Mui Coal Basin elements and the test of effectiveness, the Court found that a small consultation meeting, questionnaires, minutes and an attendance list, held under Ministry of Health pandemic guidelines, reflected the prevailing conditions. The Petitioners' assertion of suspiciously similar handwriting on questionnaires was unsupported by credible evidence.

p. 9
03

Whether constitutional rights were infringed

Holding

No infringement was proved; the petition failed for want of substantiation

Reasoning

Applying Anarita Karimi Njeru, the Petitioners' generalized allegations lacked precision. Under Section 107 of the Evidence Act, the burden lay on the Petitioners. The photographs were unauthenticated and showed no nexus to the project, the health card was a polio immunization card irrelevant to respiratory illness claims, and no expert evidence was adduced on environmental harm.

p. 10

Legal principles established

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  • A constitutional petition must set out with reasonable precision the provision infringed and the manner of infringement
  • Public participation is sufficient where the public was afforded an unrestricted opportunity to air views, the views were considered before the final decision, and the process reflects prevailing circumstances
  • A party who desires a court to give judgment on facts it asserts bears the burden of proving those facts

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19, 20, 21, 22, 23, 40, 42, 47, 48, 64, 66, 69(1), 70, 162(2), 258, 259
  • Land Registration ActSections 24(a), 26
  • Environmental Management and Coordination Act (EMCA)Sections 140, 141, 142, 143, 144
  • Roads Act, 2007Section 67(a)
  • Evidence Act, Chapter 80 Laws of KenyaSection 107
  • Environmental Management and Coordination (Air Quality) Regulationsnot specified
  • Rio Declaration on Environment and Development (1992)Principle 10

Cases cited (9)

  • Dr. Joseph Arap Ngok vs. Justice Moijo Ole Keiwa & 5 Others
    Civil Appeal No. CA 60 of 1997
  • Mui Coal Basin Local Community & 15 Others vs. Permanent Secretary Ministry of Energy and 17 Others
    [2015] eKLR
  • Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 others
    CCT 86/08 [2010] ZACC 5
  • Legal Advice Centre & 2 others v County Government of Mombasa & 4 others
    [2018] eKLR
  • Independent Electoral and Boundaries Commission (IEBC) vs. National Super Alliance (NASA) Kenya & 6 others
    [2017] eKLR
  • Anarita Karimi Njeru v. Republic
    (1979) eKLR
  • Mbuthia Macharia v Annah Mutua & Another
    [2017] eKLR
  • Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya
    JR Misc. App. No. 374 of 2012
  • Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
    2006 (2) SA 311 (CC)
Jurisdiction invoked
Article 22(1) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights)

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, "Muriuki & 5 others v China Wu Yi Company Limited & another (Constitutional Petition 1 of 2022) [2024] KEELC 7350 (KLR)", Case Analysis (2024). Petition dated 12th April 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7350/eng@2024-11-07

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