Washumbu (Directed Agricultural) Company Limited v Mbiriri & 4 others (Environment & Land Petition 1 of 2024) (Environment and Land) [2025] KEELC 2873 (KLR)
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
#Key legal issues
#Whether the Respondents' actions violated the Petitioner's constitutional rights through pollution
No violation proved - the Petitioner produced no medical, scientific or laboratory evidence of pollution
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.
Whether the 1st Respondent was lawfully authorized to mine on the suit property
Yes - the 1st Respondent held a valid mining consent of 12th November 1987, mining permits and an EIA licence issued on 1st November 2021
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.
Whether issues of mining licences and consents were properly before the court despite arguments they were unpleaded
Yes - the Petition expressly pleaded unregulated mining and sought orders against unregulated mining activities
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.
The weight to attach to expert evidence
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
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.
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.The Petition is hereby dismissed.
- 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.