Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 21st February 2023 (number not stated in judgment)· [2025] KEELC 2873 (KLR)

Washumbu (Directed Agricultural) Company Limited v Mbiriri & 4 others (Environment & Land Petition 1 of 2024) (Environment and Land) [2025] KEELC 2873 (KLR)

Environment and Land Court
25 March 2025
7,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

#

Landowners lost a pollution case in Kenya because they had no scientific evidence; valid old mining consents survive changes in land ownership.

What this practically means

#

Executive summary

#
The Petitioner, a ranch (L.R No. 14206 Taita) registered in 2018 and engaged in wildlife and environmental conservation, petitioned against five Respondents alleging that the 1st Respondent's mining activities at Wushumbu area, Taita Taveta County, violated constitutional rights under Articles 10(2)(b), 26(3), 29(f), 42, 43(1)(d), 47, 69 and 232(1)(c). The Petitioner alleged pollution by explosives and chemicals, widespread respiratory and carcinogenic diseases, displacement without community consent, and unregulated mining, and sought declarations plus conservatory orders including shutdown and restoration. The matter proceeded by viva voce evidence and a court site visit. The 1st Respondent asserted he had mined lawfully since 1987 under a consent from the then Taita Taveta County Council, held mining permits, an EIA licence issued 1st November 2021, and an explosives licence. The regulatory Respondents confirmed his compliance; the 5th Respondent and Petitioner contested the validity of the 1987 consent. The court framed three issues: violation of rights, lawfulness of the mining, and entitlement to reliefs. It found the Petitioner failed to prove pollution, producing no medical, scientific or laboratory evidence and calling no expert; the Kibos Distillers standard that pollution requires empirical, technical and scientific evidence applied, and the precautionary principle was inapplicable to alleged existing pollution. On legality, the court found the 1987 consent valid and subsisting despite the change of land ownership, corroborated by the Chief Inspector of Mines and NEMA. The Petition was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the Respondents' actions violated the Petitioner's constitutional rights through pollution

Holding

No violation proved - the Petitioner produced no medical, scientific or laboratory evidence of pollution

Reasoning

PW1 conceded in cross-examination that no medical reports, laboratory tests or expert witnesses were presented to substantiate the alleged respiratory and carcinogenic illnesses. Relying on Kibos Distillers, the court held pollution must be proved by empirical, technical and scientific evidence. The site visit report by Justice Naikuni also revealed no pollution. The precautionary principle was inapplicable to alleged completed or ongoing pollution.

p. 10
02

Whether the 1st Respondent was lawfully authorized to mine on the suit property

Holding

Yes - the 1st Respondent held a valid mining consent of 12th November 1987, mining permits and an EIA licence issued on 1st November 2021

Reasoning

The court found the 1987 consent issued by the then Town Clerk of Taita Taveta County Council was produced in evidence, along with mining permits and an EIA licence. The Chief Inspector of Mines confirmed compliance. Neither the Petitioner nor the 5th Respondent adduced evidence that the consent had expired; under the statutory scheme a consent continues despite change of land ownership.

p. 14
03

Whether issues of mining licences and consents were properly before the court despite arguments they were unpleaded

Holding

Yes - the Petition expressly pleaded unregulated mining and sought orders against unregulated mining activities

Reasoning

The court examined the pleadings and found the Petitioner had pleaded that the 1st Respondent's actions were unregulated and sought conservatory orders compelling shutdown of unregulated mining. The issue also featured prominently at trial, so the court was bound to consider it. The Respondents' objection that mining rights were unpleaded was therefore misplaced.

p. 12
04

The weight to attach to expert evidence

Holding

Expert evidence is entitled to highest regard but must be evaluated in the context of all other evidence and is not binding on the court

Reasoning

Relying on Shah v Shah, Juliet Karisa and Stephen Kinini, the court held that expert evidence should not trump other evidence nor be considered in a vacuum. Properly grounded expert evidence is persuasive but the court must form its own independent opinion and may reject expert evidence only on firm grounds.

p. 14

Legal principles established

#
  • Pollution must be proved by empirical, technical and scientific evidence, not lay opinion testimony
  • A mining consent issued before a change of land ownership continues to be valid for as long as the prospecting and mining rights subsist
  • Expert evidence must be weighed in the context of all other evidence and does not compel the court

Court orders

#
  1. 1.The Petition is hereby dismissed.
  2. 2.Each party to bear own costs.
Jurisdiction invoked
Constitution of Kenya, 2010 - Bill of Rights (Articles 10(2)(b), 26(3), 29(f), 42, 43(1)(d), 47, 69 and 232(1)(c)) invoked in a constitutional petition; heard under Article 165 as a petition for violation of fundamental rights

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Washumbu (Directed Agricultural) Company Limited v Mbiriri & 4 others (Environment & Land Petition 1 of 2024)  (Environment and Land) [2025] KEELC 2873 (KLR)", Case Analysis (2025). Petition dated 21st February 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2873/eng@2025-03-25

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