Malindi Residents Development Group & another v County Government of Kilifi & 4 others (Environment and Land Petition 6 of 2022) [2026] KEELC 3835 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered Kilifi County and NEMA to fix Malindi's dumpsite and pay residents Kshs 150 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition is res judicata
- 2.Whether the respondents' action/inaction in developing and maintaining a safe solid waste management system in Malindi and failing to prevent burning of solid waste breaches their Constitutional obligations under Article 69
- 3.Whether the respondents' action/inaction violates the right to the highest attainable standard of health (Article 43) and the right to a clean and healthy environment (Article 42)
- 4.Whether the respondents' action/inaction violated the right to solid waste disposal services of reasonable quality under Article 46(1)(a)
- 5.Whether the petitioners' right to information under Article 46(1)(b) was violated
- 6.Whether the 1st and 4th respondents violated the right to protection of health, safety and economic interest under Article 46(1)(c)
- 7.Whether the 2nd and 3rd respondents contravened Article 35 rights of access to information
- 8.Whether the 2nd and 3rd respondents contravened the national principles under Article 10 rendering them unfit to hold public office
- 9.Whether a renewed programme of public participation should be ordered and a progress report compelled
- 10.Whether the petitioners should open a special bank account for service levies and rates
- 11.Whether special, general, exemplary and punitive damages with interest should be awarded
- 12.Who should bear the costs of the petition
Key legal issues
#Res judicata
The petition is not res judicata of Abdalla & 2 Others because the parties and subject matter differ: the earlier suit was a private claim by land title holders, while this is a public-interest petition by residents' associations
The court applied the five conditions for res judicata from Lotta v Tanaki and the Supreme Court's distinction between class actions and representative suits in Export Processing Zone Authority. The Abdalla plaintiffs agitated private proprietary rights and obtained damages personal to them; the petitioners here are registered residents' associations vindicating public environmental rights. Common subject matter (the dumpsite) does not suffice where parties, title and relief differ.
Breach of Article 69 obligations and Articles 42 and 43 rights
The 1st–4th respondents breached Article 69 and violated the rights to a clean and healthy environment (Article 42) and reasonable standards of sanitation (Article 43(1)(b)) by operating an unlicensed, uncontrolled dumpsite near residential areas and a sensitive coastal zone
The respondents' replying affidavits comprised admissions and mitigation; they did not controvert the ongoing dumping, burning or absence of a licence. The court drew on Waweru v Republic (right to clean environment linked to right to life) and the Abdalla findings on proximity to the Malindi–Ungwana Bay fishery, and took judicial notice of the health risks of unregulated dumpsites, holding the mere operation of the site inconsistent with Article 43(1)(b).
Liability of NEMA (5th respondent)
NEMA is liable for failing to use all enforcement measures available under EMCA, including prosecution, to curb the pollution, despite issuing visits, directives and audits
Following the Supreme Court in Export Processing Zone Authority, where NEMA was found a main actor despite its regulatory role, the court held that entreaties and directives unaccompanied by serious enforcement such as prosecution left NEMA's defence with an Achilles heel. Its concession that it is not a service-delivery agency did not absolve it of its supervisory and enforcement mandate under sections 117 and 108–116 of EMCA.
Article 35 access to information
The 1st–4th respondents violated the petitioners' Article 35 rights by failing to respond to requests for information on waste management and by not publicising information on acquisition of land for a dumpsite
Applying Okiya Omtatah Okoiti and Nairobi Law Monthly v Kengen, the court found the petitioners had first pursued the appropriate mechanisms through letters and emails. The burden then shifted to the respondents to justify non-disclosure; their replying affidavits contained no correspondence showing the requests were honoured or that sufficient reasons for non-disclosure existed.
Consumer rights under Article 46
The respondents' failure to provide an efficient waste management system despite collecting levies violated the residents' consumer rights to services of reasonable quality, information, and protection of health, safety and economic interests
The court reasoned that waste management is a paid public service, so substandard delivery infringes Article 46(1)(a)-(c), and that pollution's economic impact (medical expenses, loss of business, decreased property value) engages protection of economic interests. The admissions by the respondents of minimal remedial action supported the finding.
Quantum of compensation
Compensatory damages of Kshs 120,000,000 jointly and severally against the 1st–4th respondents and Kshs 30,000,000 against NEMA were sufficient for the range of violations proved
Guided by the Supreme Court's broader constitutional approach in Export Processing Zone Authority (nature of violation, duration, impact, deterrence) and comparable awards in Abdalla (Kshs 50M), Namanyi (Kshs 25.8M), Musa (Kshs 20.6M) and Owino-Uhuru (Kshs 1.3B affirmed), the court balanced deterrence against the reality that compensation would be paid from the same funds needed for service delivery.
Legal principles established
#- Residents' associations may bring constitutional environmental petitions in the public interest under Articles 22(1) and 258, and such petitions are distinct from private land-claim litigation by different parties, so they are not res judicata of an earlier suit by landowners over the same dumpsite
- A state organ charged with environmental oversight is liable where it fails to deploy all enforcement measures available to it, including prosecution, to curb pollution
- An applicant under Article 70 need not prove loss or injury to obtain redress for violation of environmental rights, and lack of strict empirical proof does not bar exemplary or punitive damages where the violations are admitted
- All own-source revenue collected by a county government must be paid into the County Revenue Fund under Article 207, so a court cannot order such revenue to be withheld in a private account
Court orders
#- 1.Declaration that the respondents' acts and omissions regarding developing and maintaining a safe solid waste management system in Malindi and failure to prevent burning of solid waste breach Article 69(1)(d) and (g) obligations
- 2.Declaration that the respondents' acts and omissions violate the right to highest attainable standard of health under Article 43(1)(b) and the right to a clean and healthy environment under Article 42(a) and (b)
- 3.Declaration that the respondents' acts and omissions violated the right to solid waste disposal services of reasonable quality under Article 46(1)(b)
- 4.Declaration that the respondents violated the petitioners' right to information under Article 46(1)(b)
- 5.Declaration that the 1st and 4th respondents violated the right to protection of health, safety and economic interest under Article 46(1)(c)
- 6.Declaration that the 2nd and 3rd respondents contravened or threatened violation of Article 35(1)(a) and (b) rights of access to information
- 7.Total compliance by the 1st and 5th respondents (including the present 2nd, 3rd and 4th respondents in so far as responsible) with the orders issued by Makori J in Abdalla & 2 others v County Government of Kilifi & 2 Others (Land Case 283 of 2016) [2023] KEELC 19898 (KLR) under limbs (c) to (f) inclusive and (j), i.e. prohibitory injunction against dumping, mandatory injunction to relocate the dumpsite, Environmental Restoration Order, mandatory injunction on the 2nd defendant, and compliance within 120 days with a Compliance Report
- 8.Award of Kshs 120,000,000 in compensatory damages to the 1st and 2nd petitioners against the 1st–4th respondents jointly and severally
- 9.Award of Kshs 30,000,000 in compensatory damages against the 5th respondent
- 10.Costs of the petition to be borne by the respondents
- 11.Interest at court rates on the compensation and costs awarded until settled in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 258, 70, 159(1) and 162(2)(b) of the Constitution and Part 3 of the Environment and Land Court Act No 19 of 2011
Relief refused
#Prayer that the 2nd and 3rd respondents be declared unfit to hold public office
Holders of the offices were not sued in their personal names, no personal response was possible, and the claim had not attained the threshold for trial
Prayer that the petitioners open a special bank account into which all service levies and rates payable to the 1st and 4th respondents be deposited and withheld
It would violate Article 207 by diverting own-source revenue from the County Revenue Fund, could paralyse county services, funds could be held indefinitely, and it would cut off the funding stream respondents may rely on to comply with the Abdalla judgment
General damages of Kshs 950,000,000 and special damages of Kshs 350,000,000 as sought
The court assessed compensation at Kshs 120,000,000 against the 1st–4th respondents and Kshs 30,000,000 against NEMA after considering comparable awards and the need to balance compensation against continuity of service provision
Costs
The costs of the present petition shall be borne by the respondents, with interest at court rates on the sums awarded as compensation and on costs until settled in full.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end this court finds that the petition dated 4/2/2022 has merit, and it makes the following orders:
For violation of the constitutional rights of the petitioners' members, the 1st and 2nd petitioner are hereby awarded Kshs. 120,000,000 (One Hundred and Twenty Million only) in compensatory damages to be borne by the 1st– 4th respondents jointly and severally, and an additional Kshs 30,000,000/- (Thirty Million only) in compensatory damages to be borne by the 5th respondent;
The costs of the present petition shall be borne by the respondents;
Interest shall accrue at court rates on the sums awarded as compensation and costs awarded herein till settled in full.
There shall be total compliance by the 1st and 5th respondents, and by this order the present 2nd 3rd and 4th respondents are also included in such implementation measures in so far as they are responsible for the relevant matters therein addressed, with the orders issued by Makori J in his judgment dated 22nd September, 2023
There is thus a clear difference of subject matter and parties between the former suit and the present suit, and the present suit is thus not res judicata.
It must also be held to account for only going so far and no more in environmental enforcement.
Issues in the judgment
#Duplicate paragraph numbering and inconsistent case citation: the Abdalla case is cited both as 'KEELC 19898' and 'KEELC 198198', and paragraph number 149 appears twice
The judgment does not state the petition's own case/registration number anywhere on the face of the text
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Zizu Investments Limited v National Environmental Authority & 3 others (Environment and Land Constitutional Petition E024 of 2024) [2026] KEELC 5108 (KLR)[2026] KEELC 5108 (KLR)29 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Malindi Residents Development Group & another v County Government of Kilifi & 4 others (Environment and Land Petition 6 of 2022) [2026] KEELC 3835 (KLR)", Case Analysis (2026). Malindi ELC Petition dated 4th February 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3835/eng@2026-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.