Silvia Endere v [Defendant Flower Farm Company]
The bottom line
#Even if a community requests environmental work, developers must still follow all Kenyan environmental laws, including obtaining NEMA approval.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case for an interlocutory injunction
Yes - the plaintiff established a prima facie case because the defendant undertook the dam rehabilitation without the environmental impact assessment and NEMA approval required by EMCA, and without consulting the affected plaintiff
The court found undisputed facts: the defendant owned parcel 572 with green houses, the plaintiff owned the lower-lying parcel 599 about a kilometre away. The defendant rehabilitated the Simotwet Primary School dam at community request but also to channel its storm and waste water. No EIA report was prepared nor NEMA approval sought for that project, and the plaintiff was not consulted despite being affected by spill-over. Her apprehension of pollution could well be true, and she was entitled under Section 3 EMCA to enforce the Act. A prima facie case was therefore established.
Whether community consultation and approval dispense with the statutory requirement of an environmental impact assessment
No - community request and approval do not substitute for the statutory EIA and NEMA authorisation process
The defendant argued the local community requested and approved the dam rehabilitation. The court held that despite this, the defendant undertook the project before seeking NEMA's authority as required by Sections 58-68 of EMCA and the Second Schedule paragraph 4, and was required in law to consult all parties likely to be affected in coordination with NEMA. The plaintiff was not consulted and was aggrieved and affected by the spill-over.
Legal principles established
#- A person is entitled under Section 3 of EMCA to enforce the provisions of the Act where another is likely to contravene them and cause harm to the environment
- An environmental impact assessment and NEMA approval are required under Sections 58-68 of EMCA and the Second Schedule paragraph 4 before undertaking a dam rehabilitation project
Court orders
#- 1.Temporary injunction restraining the defendant by itself or its agents from trespassing onto, excavating, constructing, alienating or channeling storm water or waste matter or any other substance into the dam in the plaintiff's parcel of land (parcel No. 599) or in the dam in the grounds of Simotwet Primary School pending the hearing and determination of the suit
- 2.Costs of the application to the plaintiff
- Jurisdiction invoked
- Order XXXIX rules 1(a), 2, 2A and 9 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act; Section 3 of the Environmental Management and Coordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silvia Endere v [Defendant Flower Farm Company]", Case Analysis (2006). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.