Paolo De Maria & 5 others v Alice M Kuria & 5 others
The bottom line
#A Kenyan court ordered a telecom tower in Malindi demolished because the company built it before getting the required environmental licence.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of ELC vis-à-vis the National Environment Tribunal
ELC jurisdiction properly invoked since suit predated the EIA licence; NET only hears appeals against grant or refusal of licences.
The court found as an undisputed fact that construction commenced and completed before the EIA licence issued. Because the NET's jurisdiction under Section 129 EMCA is appellate only, the ouster argument fell away, leaving the ELC's Article 162(2)(b) jurisdiction intact whether or not a licence was later issued.
Whether the BTS is harmful to health
Not proved; plaintiffs called no expert on radiation.
The legal burden lay on the plaintiffs to prove the BTS could emit harmful radiation. They called only the 1st plaintiff and a land surveyor, neither expert in radiation. The 5th defendant's evidence showed emissions far below ICNIRP limits. Failure of proof on this head did not, however, excuse the procedural breaches.
Breach of right to clean and healthy environment
Yes - the 3rd defendant violated the remaining plaintiffs' constitutional and statutory rights by non-compliance with EMCA and illegal project implementation.
Articles 42, 69 and 70 and Section 3 of EMCA guarantee environmental rights including public participation and the precautionary principle. The 3rd defendant commenced construction without an EIA licence, never involved the plaintiffs in public participation, and the licence was issued on a mere project report without reasons for forgoing a study. Horizontal application of the Bill of Rights binds private companies.
Cancellation of licences and demolition
All licences and the change of user approval cancelled; BTS must be dismantled.
The EIA licence was invalidly issued on a project report without a study report or explanation; the County's change of user approval could not stand since conditions of approval were unproven; without licences the BTS cannot legally stand. Following Ken Kasinga, the court declined to perpetuate an illegality.
Quantum of damages
Kshs 100,000/= each to the 1st-5th plaintiffs against the 3rd defendant.
Guided by Imanyara and CMM, constitutional damages vindicate rights rather than compensate loss, and no proof of loss is required. The court fixed an award higher than the Kshs 10,000 token in Ken Kasinga but not punitive, considering deterrence of future violations in the industry.
Legal principles established
#- A project specified in the Second Schedule of EMCA must not commence before an EIA licence is obtained; construction before licensing is illegal.
- Where suit is filed before issuance of an EIA licence, the ELC's jurisdiction under Article 162(2)(b) is properly invoked and is not ousted by the NET's appellate jurisdiction under Section 129 EMCA.
- A NEMA licence issued prior to submission of an EIA Study Report and without explanation for forgoing the study is invalid.
- The Bill of Rights applies horizontally against private companies and individuals.
- Public participation in the EIA process cannot be satisfied by complaints lodged after commencement of a project.
Court orders
#- 1.Dismissal of the 6th plaintiff's suit for want of prosecution
- 2.Declaration that the defendants breached the plaintiffs' rights to a clean and healthy environment (prayer (a))
- 3.Suspension of operations/activities on the base transceiver tower station on LR No 2917 Malindi (prayer (b))
- 4.Cancellation of the EIA Licence, telecommunications licence and development permission issued to the 3rd defendant (prayer (d))
- 5.Dismantling and removal of the mobile telephone base transmission tower including its foundation on LR 2917 (prayer (e))
- 6.General damages of Kshs 100,000/= each awarded to the 1st to 5th plaintiffs against the 3rd defendant (prayer (f))
- 7.Costs of the suit granted to the plaintiffs (prayer (h))
- 8.Supplemental order: 3rd defendant to remove the tower within 60 days, failing which the 1st-5th plaintiffs may procure a qualified contractor at the 3rd defendant's cost, supervised by NEMA and Kilifi County Government
- 9.Amendment of the numbering of the prayers in the plaint to (a)-(h)
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paolo De Maria & 5 others v Alice M Kuria & 5 others", Case Analysis (2026). ELC Case No. E046 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6131/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.