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ELCPartially AllowedNot stated in the judgment text· [2025] KEELC 7681 (KLR)

James v County Government of Bungoma & another (Environment and Land Case Application E003 of 2025) [2025] KEELC 7681 (KLR)

Environment and Land Court
6 November 2025
ECE.C Cherono
2,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner/Applicant moved the Environment and Land Court at Bungoma by a Notice of Motion dated 24th July 2025 seeking conservatory orders and a mandatory injunction arising from the demolition of old Kanduyi Market, which contained asbestos. The Applicant alleged that asbestos-containing materials were removed without NEMA licensing, environmental audits or documentation of lawful disposal, in breach of EMCA and the Waste Management Regulations, 2006, which classify asbestos waste as hazardous. The 1st Respondent (the County Government of Bungoma) opposed the application through a Replying affidavit by its County Architect, contending that the waste was securely buried 15 metres deep under an Environmental Impact Assessment, that the application was overtaken by events and motivated by political expediency, and that no irreparable harm was demonstrated. The court noted that asbestos is hazardous under item 136 of the Fourth Schedule to the Regulations, that the 1st Respondent did not attach the EIA project report it relied upon, and that there was no evidence the 2nd Respondent was a licensed asbestos contractor. Applying the precautionary principle in Principle 15 of the Rio Declaration and following Ken Kasinga and Moffat Kamau, the court found a prima facie case evidencing an ongoing violation of the right to a clean and healthy environment under Article 42. The application dated 24th July 2025 was allowed: a conservatory order prohibiting exposure of the public to the hazardous asbestos waste and a mandatory injunction compelling lawful removal and disposal at a NEMA-approved facility were issued, costs were awarded to the Petitioner, and the Petitioner was directed to prosecute the Petition within six months.

Key legal issues

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01

Whether the Petitioner established a prima facie case warranting conservatory and mandatory injunctive orders for protection of the right to a clean and healthy environment

Holding

Yes. The court found a prima facie case with an ongoing violation of rights because the asbestos waste from the demolition of Kanduyi Market was not shown to have been handled or disposed of in compliance with NEMA requirements, and the 1st Respondent did not attach the requisite Environmental Impact Assessment project report or evidence that the contractor was licensed for asbestos management.

Reasoning

Asbestos is classified as hazardous waste under the Fourth Schedule, item 136, of the Environmental Management and Co-ordination (Waste Management) Regulations, 2006. The 1st Respondent asserted the waste was buried 15 metres deep, but produced no EIA project report and no evidence that the 2nd Respondent was a NEMA-licensed asbestos contractor. Applying the precautionary principle in Principle 15 of the Rio Declaration and the Ken Kasinga and Moffat Kamau authorities, the court drew the inference that the right to a clean and healthy environment was under threat, establishing a prima facie case with an ongoing violation.

p. 6

Legal principles established

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  • Where hazardous waste such as asbestos is being disposed of, disposal must be done under the guidance and directions of experts from the National Environmental Management Authority, and failure to attach the requisite Environmental Impact Assessment project report undermines a claim of lawful disposal
  • Where procedures for the protection of the environment are not followed, an assumption may be drawn that the right to a clean and healthy environment is under threat
  • The precautionary approach applies to environmental protection: lack of full scientific certainty is not a reason for postponing cost-effective measures to prevent environmental degradation

Court orders

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  1. 1.A conservatory order prohibiting the Respondents, whether by themselves, employees or agents, from further exposing the public to hazardous asbestos waste or undertaking actions inconsistent with the Environmental Management statutes pending the hearing and determination of the Petition
  2. 2.A mandatory injunction compelling the Respondents, jointly and severally, to forthwith secure, collect, identify and remove all hazardous asbestos waste from its current location and arrange for its lawful transportation and disposal at a certified NEMA-approved facility, pending the hearing and determination of the Petition
  3. 3.The costs of the application to be borne by the Respondents
  4. 4.The Petitioner/Applicant to take pragmatic steps to have the Petition heard and determined within six months from the date of the order
Jurisdiction invoked
Articles 22, 23, 42 and 70 of the Constitution of Kenya 2010; Rules 4, 23 & 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; the Environment and Land Court Act; Sections 3, 58 and 89 of the Environmental Management and Coordination Act (EMCA)

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, "James v County Government of Bungoma & another (Environment and Land Case Application E003 of 2025) [2025] KEELC 7681 (KLR)", Case Analysis (2025). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7681/eng@2025-11-06

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