Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. E046 of 2021

Paolo De Maria & 5 others v Alice M Kuria & 5 others

Environment and Land Court
30 September 2026
14,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

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

#
Six Italian national plaintiffs sued over a base transceiver station (BTS) erected by American Towers Corporation Kenya on LR No 2917 Malindi, adjacent to their properties, alleging violation of their constitutional right to a clean and healthy environment under Article 42. They sought declarations, suspension of operations, cancellation of the EIA licence, telecommunications licence and development permission, demolition of the tower, and general damages. The 1st and 2nd defendants (landowners) did not participate. The 3rd defendant (tower company), 4th defendant (NEMA), 5th defendant (Communications Authority) and 6th defendant (Kilifi County Government) defended, raising jurisdictional objections based on Section 129 EMCA, KICA and the Physical and Land Use Planning Act. The court held its jurisdiction under Article 162(2)(b) was properly invoked because the suit predated the EIA licence, rendering the NET-ouster argument moot. It found as an undisputed fact that the 3rd defendant commenced and completed construction before obtaining the mandatory EIA licence, and that none of the plaintiffs were involved in public participation. The health-harm claim failed for want of expert evidence on radiation. However, the court held the EIA licence invalid for being issued on a mere project report without reasons for forgoing a study report, and the change of user approval could not stand as its conditions were unproven. Applying the horizontal application of the Bill of Rights and the precautionary principle, it found the remaining plaintiffs' environmental rights violated. The 6th plaintiff's suit was dismissed for want of prosecution. The court cancelled all licences and the change of user, ordered demolition of the BTS within 60 days, and awarded Kshs 100,000/= each to the 1st-5th plaintiffs against the 3rd defendant, with costs borne by the 3rd defendant alone.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 6th plaintiff's suit ought to be dismissed for want of prosecution
  2. 2.Whether the BTS erected by the 3rd defendant is harmful to the health of the plaintiffs
  3. 3.Whether by their conduct the defendants have breached the plaintiffs' rights to a clean and healthy environment and if so whether they are entitled to damages
  4. 4.Whether the licences issued to the 3rd defendant ought to be cancelled by an order of this court
  5. 5.Whether the Base Transceiver Station ought to be demolished
  6. 6.What is the quantum as to damages
  7. 7.Who ought to meet the costs of the present suit

Key legal issues

#
01

Jurisdiction of ELC vis-à-vis the National Environment Tribunal

Holding

ELC jurisdiction properly invoked since suit predated the EIA licence; NET only hears appeals against grant or refusal of licences.

Reasoning

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.

p. 22
02

Whether the BTS is harmful to health

Holding

Not proved; plaintiffs called no expert on radiation.

Reasoning

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.

p. 24
03

Breach of right to clean and healthy environment

Holding

Yes - the 3rd defendant violated the remaining plaintiffs' constitutional and statutory rights by non-compliance with EMCA and illegal project implementation.

Reasoning

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.

p. 37
04

Cancellation of licences and demolition

Holding

All licences and the change of user approval cancelled; BTS must be dismantled.

Reasoning

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.

05

Quantum of damages

Holding

Kshs 100,000/= each to the 1st-5th plaintiffs against the 3rd defendant.

Reasoning

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.

p. 49

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. 1.Dismissal of the 6th plaintiff's suit for want of prosecution
  2. 2.Declaration that the defendants breached the plaintiffs' rights to a clean and healthy environment (prayer (a))
  3. 3.Suspension of operations/activities on the base transceiver tower station on LR No 2917 Malindi (prayer (b))
  4. 4.Cancellation of the EIA Licence, telecommunications licence and development permission issued to the 3rd defendant (prayer (d))
  5. 5.Dismantling and removal of the mobile telephone base transmission tower including its foundation on LR 2917 (prayer (e))
  6. 6.General damages of Kshs 100,000/= each awarded to the 1st to 5th plaintiffs against the 3rd defendant (prayer (f))
  7. 7.Costs of the suit granted to the plaintiffs (prayer (h))
  8. 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. 9.Amendment of the numbering of the prayers in the plaint to (a)-(h)

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Relief refused

#

Permanent injunction restraining the 3rd defendant from continuing construction of the BTS (prayer (c))

Not among the prayers granted in the final orders; construction already complete

p. 50

6th plaintiff's claim

Dismissed for want of prosecution as he never testified nor authorised another plaintiff to act for him

Costs

Costs of the suit shall be borne by the 3rd defendant alone; costs of the demolition/removal also borne by the 3rd defendant.

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.

There is no doubt from the material before this court that the 3rd defendant commenced and completed the construction of the BTS in question before it obtained the mandatory EIA licence.
p. 22Commencement of project before EIA licence
It is the case that complaints having been raised by the plaintiffs regarding the project, NEMA should have been more careful in applying its discretion if it was to order that the submission of the EIA Study Report be foregone by the 3rd defendant.
p. 41NEMA discretion to waive study report
It is axiomatic that without the licences, the Base Transceiver station can not legally stand or operate and it must be dismantled.
p. 43Consequence of invalid licences
the 1st, 2nd, 3rd, 4th and 5th plaintiffs are hereby awarded Kshs 100,000/= each against the 3rd defendant for violation of their constitutional rights under Article 42 of the Constitution of Kenya 2010.
p. 50Final orders - damages
the 3rd Defendant shall remove the telecommunication tower (base transceiver station) built on the parcel of land known as LR No 2917- Malindi within sixty (60) days of this judgment
p. 50Final orders - demolition and removal

Issues in the judgment

#
minor

Judgment misnames the Constitution as 'Constitution of Kenya 2020'

minor

Judgment alternately refers to parties as plaintiffs/defendants and petitioners/respondents despite first-instance nature

minor

Mischaracterisation of the 3rd defendant's submission on timing of project completion

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.