Ainea Ragen (Suing in the public interest on his own capacity and on behalf of Mwakirunge Community Residents) v County Government of Mombasa & 5 others

THE COUNTY GOVERNMENT VERSUS OF MOMBASA …………………… 1ST ……………………. 2ND ………………….. 3RD RESPONDENT CHIEF OFFICER DEPARTMENT OF FINANACE AND ECONOMIC PLANNING MOMBASA COUNTY RESPONDENT CABINET SECRETARY MINISTRY OF LANDS RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY …… 4TH ……………………………………. 5TH …………………………………………………… 6TH RESPONDENT KENYA AIRPORTS AUTHORITY RESPONDENT AUDITOR GENERAL RESPONDENT AND ETHICS & ANTI-CORRUPTION COMMISSION …………. 1ST INTERESTED PARTY DIRECTORATE OF CRIMINAL INVESTIGATIONS ……. 2ND INTERESTED PARTY JUDGEMENT I. Preliminaries 1. The Judgement of this Honourable Court pertains to the Constitutional Petition dated 9th May, 2022 lodged by Ainea Ragen, the Petitioner herein, on his own behalf and on behalf of the Mwakirunge Community Residents. It was instituted against the County Government of Mombasa, the Chief Officer Department of Finance and Economic Planning; Mombasa County, the Cabinet Secretary Ministry of Lands, the National Environmental Management Authority, Kenya Airports Authority and the Auditor General who have been sued as the 1st, 2nd, 3rd, 4th , 5th & 6th Respondents herein, JUDGMENT ELCPET. E017 OF 2022 Page 2 of 192 HON. JUSTICE L.L. NAIKUNI

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whereas Ethics & Anti - Corruption Commission and Directorate of Criminal Investigations are joined as the 1st and 2nd Interested Parties herein. 2. Upon effecting service, all the Respondents filed their respective replies. The Honourable Court shall be dealing with them accordingly at the opportune moment in this Judgement herein. 3. It is instructive to note that, in the course of the proceedings, the parties requested and on 30th September, 2022 the Honourable Court conducted a site visit (“Locus in Quo”) pursuant to the provision of Order 18 Rule 11 of the Civil Procedure Rules, 2010. The report of the said visit forms part of this Judgement for ease of reference. II. Description of the parties 4. The Petitioner who acts in Person, states that he appears in his own capacity as well as on behalf of the residents of Mwakirunge Community within the County of Mombasa, who have a common culture, unique mode of livelihood and socio-economic interest, and who, allegedly, cannot represent themselves for fear of being victimized or harmed pursuant to the provision of Articles 22, 70 and 258 of the 2010 Constitution of Kenya, 2010. 5. The 1st Respondent is the County Government of Mombasa established under chapter 11 on devolved government, and in particular Article 176 of the Constitution of Kenya 2010 as well as Section 6 of the County Government Act, Cap. 265 as body corporate (Powers of County government). It is charged with the responsibility as stated in Part II Section 6 (1) (2) and (6) of the County Government Act in respect to this suit. JUDGMENT ELCPET. E017 OF 2022 Page 3 of 192 HON. JUSTICE L.L. NAIKUNI

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6. The 2nd Respondent is described as the Chief Officer at the Department of Planning of the County Government of the 1st Respondent. The 2nd Respondent is one of its Fiduciary management officers pursuant to Articles 179(2)(a) & 183 of the Constitution of Kenya, as well as the provision of Sections 36, 37 and 38 of the County Government Act. 7. The 3rd Respondent is the Cabinet Secretary of Lands established under the provision of Article 152(1)(d), 4(a), Article 153(4)(a)of the Constitution of Kenya, and who was sued in line with his functions under Sections 6(a) (i) of the Land Act, No. 6 of 2012. 8. The 4th Respondent is described having been established under Environmental Management and Co - ordination Act (EMCA) as body corporate capable of suing and being sued in its own name as per section 7(1)(2)(a) the said Act. The 4th Respondent is charged with responsibility of co - ordinating various Environmental Management activities in the country such as, carrying out surveys to assist in the proper management and conservation of the Environment and identifying projects and programs or types of projects and programs, plans and policies for which Environmental Audit or Environmental monitoring must be conducted. 9. The 5th Respondent was described to have been established under the provision of Section 3(2) of the Kenya Airports Authority Act, No. 3 of 1991 as a body corporate with perpetual succession, a common seal and can hold and dispose of property on behalf of the Kenya Airport Authority, and is charged with the responsibility pursuant to Sections 14(1)(b), 15(1) of its parent Act. 10. The 6th Respondent was described as the Auditor General whose office is established under Article 253 of the Constitution of Kenya and Section 4 of JUDGMENT ELCPET. E017 OF 2022 Page 4 of 192 HON. JUSTICE L.L. NAIKUNI

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the Public Audit Act, whose constitutional mandate is stated in Section 7(1) & 2 of the Public Audit Act. 11. The 1st Interested Party was described as an independent institution established under the provision of Articles 79, 252 & 253 of the Constitution of Kenya 2010, and Sections 3(1) & 11 of the Ethics and AntiCorruption Commission Act as a body legally mandated to fight corruption. 12. The 2nd Interested Party was described as the investigative agency within the Kenya Police Service established under the provision of Section 28 of the National Service Act. It was joined to the suit owing to its responsibilities under Sections 35(a)(b)(e)(g) & (k) of its parent Act. III. The Case by the Petitioners (a) Factual Background 13. The brief facts of the case, based from the filed pleadings herein, are that the Petitioners began settling in Mwakirunge in the early 1900s, with settlement gradually increasing through the 1920s and 1930s as families migrated from various parts of Malindi and Kilifi. The Petitioner claims that in the 1930s, approximately fifteen (15) families were residing in Mwakirunge, having migrated from Lango Mbaya in Malindi and Chonji in Kaloleni. The Petitioner further averred that the Mwakirunge dumpsite was initially established at Marimani by the defunct Municipal Council of Mombasa in the year 2002 and was subsequently relocated to its current location at Colorado, Mwakirunge, in the year 2007. At the time of the relocation, the residents were already in occupation of the present site of the dumpsite. JUDGMENT ELCPET. E017 OF 2022 Page 5 of 192 HON. JUSTICE L.L. NAIKUNI

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14. The Petitioner further contended that prior to the relocation, the Municipal Council of Mombasa sought to persuade the residents to vacate the land by promising to provide public amenities, including a school, a health clinic, a police station, and a perimeter wall around the proposed dumpsite. He alleged that notwithstanding these assurances, the Council commenced dumping waste on land occupied by the residents, thereby effectively evicting them without notice, public participation, or compensation, despite their occupation of the land for over sixty (60) years. It was further alleged that waste was deposited in close proximity to the residents' homes, exposing them to foul odours, smoke, and other hazardous substances. As a consequence of these conditions, some families were compelled to relocate and seek alternative accommodation due to the adverse effects on their health, safety, and general living conditions. 15. The Petitioner averred that the dumpsite presently occupied a graveyard site where members of their community had been buried for many years. He further contended that approximately fifty (50) acres were excised from the larger Mwakirunge land without public participation or the involvement of the then District Land Adjudication and Settlement Office, now the County Land Adjudication and Settlement Office, or the residents who had occupied the land for more than sixty (60) years. The Petitioner states that, in response, the residents prepared a Memorandum dated 19 th July, 2007 titled:- "KUH: ATHARI/UHAMISHAJI WA JAA LA MWAKIRUNGE NA UPOKONYWAJI WA ARDHI" (translated by the Petitioner as "The Danger of the Relocation of the Mwakirunge Dumpsite and Land Grabbing"). The Memorandum was addressed to JUDGMENT ELCPET. E017 OF 2022 Page 6 of 192 HON. JUSTICE L.L. NAIKUNI

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the then President of the Republic of Kenya, Mwai Kibaki; the then Kenya Anti - Corruption Commission (KACC); the Kenya National Human Rights Commission (KNHRC); the Coast Provincial Commissioner; the Mayor of Mombasa; the District Commissioner, Mombasa; the Kisauni Divisional Officer; the Chief, Bamburi Location; the Assistant Chief, Mwakirunge Sublocation; the Member of Parliament for Kisauni; and the Municipal Ward Representative (formerly the Councillor for Mwakirunge Ward). 16. The Petitioner further stated that since the year 2007, the residents had consistently raised concerns regarding the alleged violations with the relevant government agencies and statutory bodies, but no substantive action had been taken to address their grievances. They further posited that on 5th September, 2007, the Kenya Civil Aviation Authority (KCAA) convened a meeting with the Kenya Airports Authority (KAA), the 4 th Respondent herein, during which concerns were raised regarding the continued operation of the Mwakirunge dumpsite, which were as follows:(a) The proposed dumpsite at Mwakirunge was in direct approach path of runway 21 of Mombasa International Airport. (b)The risk of attracting birds that could lead to an aviation safety risk; and (c) The project may not meet safety requirements of the local and international aviation regulations. 17. The Petitioner asserted that the Environmental Impact Assessment (EIA) Study annexed to the Petition indicated that the National Bird Strike Committee had scheduled a meeting for 2 nd and 3rd December, 2009 but had not made any recommendations in support of the proposed project. The EIA Study also reiterated the assurances previously made by the Municipal Council JUDGMENT ELCPET. E017 OF 2022 of Mombasa Page 7 of 192 and further included additional HON. JUSTICE L.L. NAIKUNI

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commitments, namely: the upgrading of the main road from Bamburi to Mwakirunge; the establishment of a new market for the local community; the provision of protective equipment, including gloves and protective clothing, for workers at the dumpsite; and the recycling of recyclable waste. The Petitioner lamented that none of these commitments were honoured either by the defunct Municipal Council of Mombasa or by the 1 st Respondent, which subsequently assumed its functions. 18. The Petitioners state that in March, 2011 the defunct office of the Deputy Prime Minister commissioned an Environment and Social Impact Assessment Study and Report Ref. No. 10329K-EIA-H-0016 , undertaken by INGEROP AFRICA/HOWARD HUMPHREYS (EAST AFRICA) LIMITED. According to the Petitioner, the findings of the Study were opposed by the 5 th Respondent, the Kenya Airways, and the Kenya Civil Aviation Authority (KCAA), all of whom, together with the Residents and the 4 th Respondent, opposed the continuation of the project. The Petitioner further held that in the year 2013, heavy rainfall rendered roads within Mwakirunge impassable after floodwaters washed waste from the dumpsite onto roads used by members of the community, including school-going children. He further state that, as a result of these conditions, residents staged demonstrations in the year 2013 during which ten (10) residents were arrested and subsequently charged before the Shanzu Law Courts. 19. The Petitioner stated that the Residents had consistently raised concerns with the defunct Municipal Council of Mombasa and, subsequently, the 1 st Respondent regarding the adverse effects of the dumpsite. These concerns included: - children dropping out of school to work at the dumpsite; underage pregnancies and child marriages; incidents of rape JUDGMENT ELCPET. E017 OF 2022 Page 8 of 192 HON. JUSTICE L.L. NAIKUNI

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within the dumpsite; family breakdowns; numerous road accidents involving trucks transporting waste to the dumpsite; the disposal of medical waste and hazardous chemicals; and the adverse health effects arising from exposure to toxic emissions generated by the burning of waste. The Petitioner contended that the Mwakirunge community had been marginalised and suffered hardship at the hands of the 1 st Respondent, whose actions they allege had been shielded by the 4 th Respondent. He further averred that their repeated attempts to obtain redress from the relevant authorities had yielded no meaningful response. 20. The Petitioner further stated that various Community-Based Organisations (CBOs) had been established by residents of Mwakirunge in an effort to address the foregoing concerns, but that the 1 st, 2nd, 3rd and 4th Respondents had failed to take adequate measures to resolve the issues raised. He states that in year 2015, ActionAid Kenya conducted research on the impacts of the dumpsite and also commissioned students from the Kenyatta University School of Environment to undertake an independent study. According to the Petitioner, both studies identified numerous adverse social and environmental impacts associated with the dumpsite, including rape, deaths, fires, disruption of children's education, drug abuse, land rights violations, environmental pollution, moral decay, insecurity, family breakdown, and denial of access to justice for the Mwakirunge community. The studies further identified a range of diseases allegedly associated with the dumpsite, including malaria, typhoid, diarrhoea, bilharzia, amoeba, respiratory infections, skin diseases, eye and nasal irritation, and burn injuries, among others. The Petitioner states that JUDGMENT ELCPET. E017 OF 2022 Page 9 of 192 HON. JUSTICE L.L. NAIKUNI

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both studies recommended the relocation of the dumpsite to an alternative site. 21. The Petitioner further states that on 23 rd November, 2019, members of the community submitted a Petition to the Speaker of the County Assembly of Mombasa seeking intervention to address the issues arising from the operation of the dumpsite. He contended that once more, no substantive response was received. The Petitioner further avers that the community held another demonstration in the year 2020 and that several stakeholder meetings have since been convened, but no meaningful action has been taken. He further argued that over several financial years, the 1 st Respondent has continued to allocate public funds to the 2 nd Respondent purportedly to address the concerns raised by the Petitioners, the most recent allocations being as follows:- a. Years 2018 - 2019 Financial Budgetary allocation of Kenya Shillings Thirty Million (Kshs. 30,000,000) for the purchase of a bulldozer to be permanently stationed at Mwakirunge dumpsite, yet there is no bulldozer stationed at the dumpsite. b. Years 2020 - 2021 Financial Budgetary allocation of Kenya Shillings One Hundred Million (Kshs. 100,000,000) for the fencing of Mwakirunge dumpsite for Phase two. However, the Petitioner claimed that there was no fence mounted around the dumpsite and it was not clear what happened to the monies disbursed for Phase one of the fencing project. c. Years 2020 - 2021 Financial budgetary allocation of Kenya Shillings Two Hundred Million (Kshs. 200,000,000) for proper waste disposal at Mwakirunge dumpsite for Phase two, but this was also not done and monies disbursed for Phase 1 of the waste disposal also disappeared. 22. The Petitioner stated that, following consultations with the residents, he wrote to the 1st, 2nd and 3rd Respondents through letters dated 6th December, 2021 seeking answers to the concerns raised by the JUDGMENT ELCPET. E017 OF 2022 Page 10 of 192 HON. JUSTICE L.L. NAIKUNI

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community. He further stated that he wrote to the 4 th and 5th Respondents through letters dated 8th December, 2021 raising similar concerns, and subsequently wrote to the Office of the Ombudsman, Mombasa, by a letter dated 10th February, 2022. The Petitioner averred that despite of all these correspondences, no substantive response was received from any of the said offices, notwithstanding a meeting held between the Petitioner and the officials of the County Land Adjudication and Settlement Office. The Petitioner further stated that he requested from the said office the ownership records relating to the land on which the dumpsite was situated, together with the Registry Index Map (RIM) for the area, but was informed that the requested records were unavailable. The Petitioner contended that the failure by the relevant public authorities to provide the requested information amounted to a violation of their constitutional and statutory right of access to information. 23. The Petitioner further stated that he wrote to the 6 th Respondent through letters dated 20th January, 2022 and 4th March, 2022 requesting copies of the 1st Respondent's audit reports for the period between years 2012 and 2022. He averred that after considerable difficulty, the 6 th Respondent, by a letter dated 16th March, 2022, furnished the Petitioner with certified copies of audit reports covering seven financial years, namely Financial Years 2013/2014 to 2019/2020. According to the Petitioner, the audit reports disclosed instances of financial impropriety, misappropriation of public funds, and violations of the applicable laws and regulations governing the management and utilisation of public funds and public assets by officers of the 1 st and 2nd Respondents, including matters relating to the Mwakirunge Dumpsite and other projects. JUDGMENT ELCPET. E017 OF 2022 Page 11 of 192 HON. JUSTICE L.L. NAIKUNI

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24. The Petitioner further asserted that the 4 th Respondent invited him to its offices to inspect the Environmental Impact Assessment (EIA) Report relating to the Mwakirunge Dumpsite. According to the Petitioner, the Report indicated that stakeholders whose statutory mandates were directly affected by the proposed dumpsite opposed its establishment and continued operation at its current location and recommended that the 1 st Respondent identify an alternative site. The Petitioner contended that in their view, the continued operation of the Mwakirunge Dumpsite primarily benefits certain individuals within the executive management of the 1 st Respondent. He stated that the present Petition was necessitated by the failure of the various relevant statutory bodies to provide any meaningful intervention or redress in respect of the grievances raised by the residents of Mwakirunge. (b) Legal Foundation of the Petition 25. The Petitioners categorised the alleged constitutional and statutory violations forming the basis of the Petition into three broad categories, namely: (i) violations of environmental laws relating to waste management and waste disposal; (ii) violations of the constitutional and statutory framework governing public governance and public finance management; and (iii) violations of land laws in general. 26. Regarding violations in respect to environmental waste and waste disposal, the Petitioners highlighted the following legal foundations:(a) The Constitution of Kenya, 2010 (i) Article 42 of the Constitution of Kenya, 2010 which provides that:Every person has the right to a clean and healthy environment, which includes the right— JUDGMENT ELCPET. E017 OF 2022 Page 12 of 192 HON. JUSTICE L.L. NAIKUNI

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(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and (b) to have obligations relating to the environment fulfilled under Article 70. (ii) Article 69 of the Constitution of Kenya, 2010 - obligations in respect of the environment (1) The State shall— (a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; (b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; (c) protect indigenous and enhance knowledge intellectual property in, biodiversity and the genetic the management, of, and resources of the communities; (d) encourage public participation in protection and conservation of the environment; (e) protect genetic resources and biological diversity; (f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment; (g) eliminate processes and activities that are likely to endanger the environment; and (h) utilise the environment and natural resources for the benefit of the people of Kenya. (2)Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. (iii) Article 70 of the Constitution of Kenya, 2010: Enforcement of environmental rights. It provides that:- JUDGMENT ELCPET. E017 OF 2022 Page 13 of 192 HON. JUSTICE L.L. NAIKUNI

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(1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter. (2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate— (a) to prevent, stop or discontinue any act or omission that is harmful to the environment; (b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or (c) to provide compensation for any victim of a violation of the right to a clean and healthy environment. (3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury. (b)EMCA/NEMA Act (i) Part VI - Environmental Impact Assessment - Under this head, the Petitioner relies on Sections 58, 59, 60 and 63 of the Environmental Management and Co-ordination Act (EMCA). These provisions require the National Environment Management Authority (NEMA) to issue an Environmental Impact Assessment (EIA) Licence only upon such terms and conditions as it considers necessary to promote sustainable development and sound environmental management. The Petitioner urges that an EIA Licence may only be issued after NEMA is satisfied that the Environmental Impact Assessment Study, Evaluation or Review Report is adequate and complies with the requirements of the Act. (ii) Section 87 prohibition against dangerous handling and disposal of waste. JUDGMENT ELCPET. E017 OF 2022 Page 14 of 192 HON. JUSTICE L.L. NAIKUNI

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(1) No person shall discharge or dispose of any wastes, whether generated within or outside Kenya, in such manner as to cause pollution to the environment or ill health to any person. (2) No person shall transport any waste other than— (a) in accordance with a valid licence to transport wastes issued by the Authority; and (b) to a wastes disposal site established in accordance with a licence issued by the Authority. (3) No person shall operate a wastes disposal site or plant without a licence issued by the Authority. (4) Every person whose activities generate wastes shall employ measures essential to minimize wastes through treatment, reclamation and recycling. (5) Any person who contravenes any provisions of this section shall be guilty of an offence and liable to imprisonment for a term of not more than two years or to a fine of not more than one million shillings or to both such imprisonment and fine. (iii) Section 88 Application for waste license (1) Any person intending to transport wastes within Kenya, operate a wastes disposal hazardous waste, shall site prior to or plant or transporting to generate the wastes, commencing with the operation of a wastes disposal site or plant or generating hazardous wastes, as the case may be, apply to the Authority in writing for the grant of an appropriate licence. (2) A licence to operate a waste disposal site or plant may only be granted subject to the payment of the appropriate fee and any other licence that may be required by the relevant Local Authority. (3) Where the Authority rejects an application made under this section, it shall within twenty one days of its decision, notify the applicant of the decision specifying the reasons therefor. JUDGMENT ELCPET. E017 OF 2022 Page 15 of 192 HON. JUSTICE L.L. NAIKUNI

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(iv) Section 90 Court orders to cease operation providing:The Authority may apply to a competent court for orders compelling any person to immediately stop the generation, handling, transportation, storage or disposal of any wastes where such generation, handling, transportation, storage or disposal presents an imminent and substantial danger to public health, the environment or natural resources. (v) Section 93 Prohibition of discharge of hazardous substances, chemicals and materials or oil into the environment and spiller’s liability, which provides at Sub-sections 1-3, that:(1) No person shall discharge any hazardous substance, chemical, oil or mixture containing oil into any waters or any other segments of the environment contrary to the provisions of this Act or any regulations thereunder. (2) A person who discharges a hazardous substance, chemical, oil or a mixture containing oil into any waters or other segments of the environment contrary to subsection (1) commits an offence. (3) A person convicted of an offence under subsection (2) shall, in addition to any other sentence imposed by the court— (a) pay the cost of the removal of the hazardous substance, chemical, oil or a mixture containing oil including any costs which may be incurred by any Government agency or organ in the restoration of the environment damaged or destroyed as a result of the discharge; and (b) the costs of third parties in the form of reparation, restoration, restitution or compensation as may be determined by a competent court on application by such third parties. (vi) Section 111 Issue of environmental restoration order by a court. (1) Without prejudice to the powers of the Authority under this Act, a court of competent jurisdiction may, in proceedings JUDGMENT ELCPET. E017 OF 2022 Page 16 of 192 HON. JUSTICE L.L. NAIKUNI

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brought by any person, issue an environmental restoration order against a person who has harmed, is harming or is reasonably likely to harm the environment. (2) For the avoidance of doubt, it shall not be necessary for a plaintiff under this under this section to show that he has a right or interest in the property, environment or land alleged to have been or likely to be harmed. (vii) Section 143 Offences relating to Environmental restoration orders, easements, and conservation orders. (1) Any person who— (a) fails, neglects or refuses to comply with an environmental restoration order made under this Act; (b) … (c) fails, neglects or refuses to comply with an environmental conservation order made under this Act, (d) … commits an offence and shall on conviction, be liable to imprisonment for a term of not less than one year and not more than four years or to a fine of not less than two million shillings and not more than four million shillings or to both such fine and imprisonment. 27. The second category of alleged violations relates to public governance and public finance management. In this regard, the Petitioner contends that the Respondents have violated various provisions of the Constitution and the statutory framework governing public administration and the management of public resources, including the following:(a) The Constitution of Kenya, 2010. (i) Article 10 National values and principles of governance (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; JUDGMENT ELCPET. E017 OF 2022 Page 17 of 192 HON. JUSTICE L.L. NAIKUNI

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(b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values 10and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. (ii) Article 35 Access to information and Access to Information Act provides:(1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation. (iii) Article 73 Responsibility of Leadership provides:(1) Authority assigned to a State officer— (a) is a public trust to be exercised in a manner that— (i) is consistent with the purposes and objects of this Constitution; (ii) demonstrates respect for the people; (iii) brings honour to the nation and dignity to the office; and (iv) promotes public confidence in the integrity of the office; and (b) vests in the State officer the responsibility to serve the people, rather than the power to rule them. (2) The guiding principles of leadership and integrity include— (a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; (b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices; (c) selfless service based solely on the public interest, demonstrated by — (i) honesty in the execution of public duties; and JUDGMENT ELCPET. E017 OF 2022 Page 18 of 192 HON. JUSTICE L.L. NAIKUNI

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(ii) the declaration of any personal interest that may conflict with public duties; (d) accountability to the public for decisions and actions; and (e) discipline and commitment in service to the people. (iv) Article 75 Conduct of state officers, which at Sub-Article (1) provides that:(1) A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids— (a) any conflict between personal interests and public or official duties; (b) compromising any public or official interest in favour of a personal interest; or (c) demeaning the office the officer holds. (v) Article 201 Principles of public finance provides that:The following principles shall guide all aspects of public finance in the Republic— (a) there shall be openness and accountability, including public participation in financial matters; (b) the public finance system shall promote an equitable society, and in particular— (i)the burden of taxation shall be shared fairly; (ii)revenue raised nationally shall be shared equitably among national and county governments; and (iii)expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas; (c) the burden and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations; (d) public money shall be used in a prudent and responsible way; and (e) financial management shall be responsible, and fiscal reporting shall be clear. (b)The Public Finance Management Act (i) Section 102 County government responsibilities in public finance (ii) Section 103 Establishment of county treasuries (iii) Section 104 General responsibilities of county treasuries (iv) Section 105 Powers of a County Treasury (v) Section 106 Secondment of public officers by a County Treasury to the National Treasury (vi) Section 107 County treasury to enforce fiscal responsibility principles JUDGMENT ELCPET. E017 OF 2022 Page 19 of 192 HON. JUSTICE L.L. NAIKUNI

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(vii) Section 108 County government deviation from financial objectives (viii) Section 109 Establishment of a county revenue fund for each county government (ix) Section 119 Banking arrangements for county government and its entities (x) Section 120 Management of cash at the county government level (xi) Section 121 Procurement for county government entities (xii) Section 136 Appropriation of money for county government purpose to lapse if unspent (xiii) Section 147 Role of accounting officers in management of public finances (xiv) Section 154 Limited power of accounting officer to reallocate appropriated funds (xv) Section 162 Obligations of public officers with respect to county government resources (xvi) Section 164 Annual reporting by accounting officers (xvii) Section 174 Principles to be observed by urban areas or cities in managing public finances (c) The Public Finance Management (County Government) Regulations, 2015 The Petitioner further relies on Regulation 25(1)(a) of the Public Finance Management (County Governments) Regulations, contending that it requires the County Assembly to set a wage bill limit not exceeding thirty-five per cent (35%) of the County's revenue. He also relies on Regulation 91(2), which requires an officer authorised to hold and operate an imprest to make a formal application for the same through an imprest warrant. The Petitioners further cite Regulation 93(4), which prohibits an accounting officer from issuing a temporary imprest to an applicant who has an outstanding imprest. Lastly, he relies on Regulation 93(5), which requires the holder of a temporary imprest to account for or surrender the imprest within seven (7) days of returning to the duty station. (d)The County Government Act Under this Act, the Petitioner has claimed violation of Section 115 on public participation in county planning. (e) The Public Procurement and Disposal of Assets Act, 2015 (i) Section 54 (1) provides:No procuring entity may structure procurement as two or more procurements for the purpose of avoiding the use of a procurement procedure except where prescribed. (ii) Section 105 which provides that the procurement method may only be used if the value of goods/service is within the set threshold. JUDGMENT ELCPET. E017 OF 2022 Page 20 of 192 HON. JUSTICE L.L. NAIKUNI

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28. The third and final category of alleged violations relates to the Land Act. Under this category, the Petitioner relies on Section 4, which sets out the guiding values and principles under the Act; Section 6, which prescribes the powers and functions of the Cabinet Secretary in relation to land management; Section 7, which provides for the methods of acquisition of title to land and Section 9, which governs the conversion of land. The Petitioner further relies on Section 134 of the Act concerning the establishment of settlement schemes. In particular, they refer to subsections (1) and (2), which provide as follows:(1) The National programmes to Government provide shall access to implement land for settlement shelter and livelihood. (2) Settlement programmes shall, for the purposes of this Act, include, but not be limited to provision of access to land to squatters, persons displaced by natural causes, development projects, conservation, internal conflicts or other such causes that may lead to movement and displacement. 29. The Petitioners further refer to the definition of ‘community’ under the applicable land law, which defines it to mean:- a consciously distinct and organised group of users of community land who are citizens of Kenya and who share a common ancestry, similar culture or unique mode common of interest, livelihood, socio-economic geographical space, or other ecological similar space, ethnicity. (c) (i) Constitutional Violations by the Respondents. The County Government of Mombasa - 1st Respondent JUDGMENT ELCPET. E017 OF 2022 Page 21 of 192 HON. JUSTICE L.L. NAIKUNI or

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30. With regard to the violations of the law on the part of the Respondents, it was the Petitioner’s case that the 1 st Respondent, in refusing to heed the appeals by the Mwakirunge Community concerning the dumpsite, and instead resorting to harassment and intimidation, violated Sections 87 (a) to (e) and 115 of the County Governments Act. The Petitioner further accused the 1st Respondent of violating the rights of the Community residents under Sections 88 and 89 of the County Governments Act by failing to respond to their petition regarding the dumpsite. 31. The Petitioner averred that the 1 st Respondent had illegally operated the dumpsite since year 2012 with impunity and in total disregard of objections by the 4th Respondent, NEMA, and without a licence from NEMA. The Petitioner further faulted the 1st Respondent for dumping chemical and medical waste through its members of staff, the County Askaris, stationed at the dumpsite. The Petitioner further avers that the 1 st Respondent had allowed unscrupulous individuals and private companies to dump dangerous chemical and medical waste at the dumpsite without a waste licence, contrary to Section 88 of EMCA. 32. Thus, the Petitioner asserted that the 1st Respondent had violated Sections 5, 63 and 87(1), (2)(a)–(b), (3) and (4) of EMCA. It is also the Petitioner’s case that the 1st Respondent’s actions in discharging the said waste had led to pollution and ill health within the Mwakirunge Community. The Petitioner concluded that the 1st Respondent had denied the Mwakirunge Community the right to a clean and healthy environment in violation of Article 42 of the Constitution of Kenya, 2010. (ii) Chief Officer, Department of Finance and Economic Planning, Mombasa County - 2nd Respondent JUDGMENT ELCPET. E017 OF 2022 Page 22 of 192 HON. JUSTICE L.L. NAIKUNI

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33. The Petitioner averred that, in denying the Petitioner information on how public funds allocated for the Mwakirunge dumpsite were spent, the 2 nd Respondent violated Article 35 of the Constitution. The Petitioner further argued that the 2nd Respondent was in violation of the laws governing the management of public funds and public assets and had failed to heed the advice of the Auditor-General in that regard. The Petitioner accused the 2 nd Respondent of acting with impunity in relation to the use of public funds allocated for the dumpsite, contending that it was accountable to no one but itself. (iii) Cabinet Secretary, Ministry of Lands - 3rd Respondent 34. On the part of the 3rd Respondent, the Petitioner averred that the Cabinet Secretary had overseen land-related violations against the Mwakirunge Community perpetrated by officers under her Ministry. In this regard, the Petitioner also cited the Land Adjudication Officer’s refusal to disclose the ownership of the land on which the Mwakirunge dumpsite was situated. The Petitioner further cited the failure by the said office to avail a Registry Index Map (RIM) showing that the land was surveyed and planned as a dumpsite, or to provide a copy of the letter of allotment, title deed or lease in favour of the 1st Respondent. Owing to the foregoing, the Petitioner asserts that the 3rd Respondent failed to exercise her powers under Section 6 of the Land Act. The Petitioner further averred that the land on which the dumpsite is situated is community land within the meaning of Article 61 of the Constitution. (iv) National Environmental Management Authority - Respondent JUDGMENT ELCPET. E017 OF 2022 Page 23 of 192 HON. JUSTICE L.L. NAIKUNI 4 th

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35. The Petitioner faulted the 4th Respondent for failing to institute legal proceedings against the 1st and 2nd Respondents for operating the dumpsite in violation of Parts V, VI, VII, VIII and IX of EMCA, and therefore averred that the 4th Respondent was complicit in the activities and violations perpetrated against the Mwakirunge Community. The Petitioner further avers that the 4th Respondent neither investigated nor took any action despite the Petitioner’s letter of complaint regarding the dumping of medical and other toxic waste. The Petitioner accused the 4 th Respondent of merely engaging in boardroom meetings and exchanging correspondence without offering any substantive solution while the Mwakirunge Community continued to suffer. (v) Kenya Airports Authority - 5th Respondent 36. The 5th Respondent was faulted for failing to respond to the Petitioner’s inquired regarding its position on the Mwakirunge dumpsite, in breach of Article 35 of the Constitution and the Access to Information Act. The Petitioner reiterated that the dumpsite was situated along a flight path and posed a danger to aircrafts, yet the 5th Respondent failed to institute legal proceedings against the continued violations by the 1st and 4th Respondents. The Petitioner further claimed that the 5 th Respondent merely resorted to boardroom meetings and correspondence instead of taking any tangible or substantive action, to the detriment of the Mwakirunge Community and air travellers. (vi) Auditor General - 6th Respondent 37. The Petitioner’s case against the 6th Respondent was that it failed to address the concerns and queries raised in the letters dated 20 th January, 2022 and 4th March, 2022 regarding public funds budgeted for the JUDGMENT ELCPET. E017 OF 2022 Page 24 of 192 HON. JUSTICE L.L. NAIKUNI

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dumpsite, contrary to Section 7(1)(b) and (c), and Section 7(2) of the Public Audit Act. The Petitioner stated that the 6 th Respondent neglected its statutory duty under Sections 9, 21 and 22 of the said Act despite the Petitioner having reported the concerns regarding the budgetary allocations. The Petitioner further posited that the 6 th Respondent merely supplied financial audit reports on how the funds were utilised by the 1 st and 2nd Respondents without taking any substantive steps to investigate the Petitioner’s concerns regarding the alleged misuse of public funds allocated for the dumpsite. (vii) Ethics & Anti-Corruption Commission - 1st Interested Party 38. The Petitioner referred to the Audit Report for the Financial Year 2015/2016, which, at pages 12 and 13 under paragraph 15(i), (ii) and (iii) titled “Garbage Collection”, indicated that the 1st Interested Party investigated the alleged misappropriation of public funds amounting to a sum of Kenya Shillings Eighty Two Million Two Thousand and Eight Five Ninety Nine Hundred (Kshs. 82,208,599/=). The Petitioner submitted that the said amount formed part of a contract awarded to a private company and was directly linked to the activities at the Mwakirunge dumpsite. The Petitioner contended that the 1st Interested Party failed to act on the matter and neglected its statutory mandate by failing to undertake any meaningful enforcement action or prosecution. The Petitioner further argued that the 1st Interested Party was complicit in the violations perpetrated against the members of the Mwakirunge Community. The Petitioner asserted that the 1st Interested Party was funded by taxpayers to combat corruption and ought therefore to explain why it failed to act on the investigations and their findings in the face of the alleged systemic JUDGMENT ELCPET. E017 OF 2022 Page 25 of 192 HON. JUSTICE L.L. NAIKUNI

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violations of the laws governing public funds and public assets by the 1 st and 2nd Respondents. (d) Prayers 39. Owing to the foregoing, the Petitioner prayed to be granted the following orders that:(1) A DECLARATION that Mwakirunge Dumpsite sits on community land. (2) A DECLARATION that the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents violated the law and rights of Mwakirunge Community Residents. (3) An ORDER COMPELLING the 1st, 2nd, 3rd and 4th Respondents to WITHIN SIXTY (60) DAYS of the Court’s Judgement to engage the services of an independent PRIVATE ENVIRONMENTAL AUDIT FIRM to ascertain the extent and degree of environmental degradation brought about as a result of the illegal dumpsite and quantify in monetary value the damages caused by the illegal dumpsite including but not limited to the costs of any and all necessary remedial measures required to safeguard the environmental human rights of the Mwakirunge Community Residents. (4) A DECLARATION that those individuals and persons and families whose rights were violated are entitled to seek compensation. (5) An ORDER for EVIRONMENTAL RESTORATION of the entire dumpsite and surrounding affected areas pursuant to Section 111 (1) and (2) of EMCA/NEMA Act. (6) A PERMANENT INJUNCTION restraining the 1st Respondent or any state or private organisation or any person not mentioned in this suit working either individually or by their staff or their agents or their representatives from dumping wastes of any nature or form on Mwakirunge site. (7) An ORDER compelling the 1st, 2nd, 3rd and 4th Respondents to WITHIN NINETY (90) DAYS of the Court’s Judgement to seek an alternative dumping site. (8) An ORDER DIRECTING the 6th Respondents to WITHIN NINETY (90) DAYS of the Court’s Judgment to immediately undertake forensic audit into financial activities of the 1st and 2nd Respondents in respect to budgetary allocation for Mwakirunge dumpsite and publicly publicize its findings pursuant to their constitutional mandate in respect to the following:JUDGMENT ELCPET. E017 OF 2022 Page 26 of 192 HON. JUSTICE L.L. NAIKUNI

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a. Year 2018 - 2019 Financial Budgetary allocation of a sum of Kenya Shillings Thirty Million (Kshs. 30,000,000) for purchase of a bulldozer to be permanently stationed at Mwakirunge dumpsite. b. Years 2020 - 2021 Financial Budgetary allocation of a sum of Kenya Shillings One Hundred Million (Kshs. 100,000,000) for fencing of Mwakirunge dumpsite for Phase two. c. Year 2020 - 2021 Financial budgetary allocation of a sum of Kenya Shillings Two Hundred Million (Kshs. 200,000,000) for proper waste disposal at Mwakirunge dumpsite for Phase two. (9) An ORDER DIRECTING the 1st and 2nd Interested Party to immediately and separately and independently pursuant to their constitutional mandate launch forensic investigations into the financial activities of the 1st and 2nd Respondents in respect to this suit and in respect to the seven (7) financial years audit reports as annexed to this Petition. (10)An ORDER COMPELLING the 1st Interested Party to WITHIN THIRTY (30) DAYS of the Court’s Judgment to produce before the Honourable Court the findings and progress of its investigations on the alleged misappropriation of Kenya Shillings Eighty Two Million Two Thousand and Eight Five Ninety Nine Hundred (Kshs. 82,208,599/=) public funds between the financial years 2014 - 2016 which involved garbage collection contract as annexed to this Petition including the 1st Interested Party’s next cause of action. (11)And ORDER directing the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents and the 1st and 2nd Interested Parties to WITHIN NINETY (90) DAYS of the Court’s Judgment to file affidavit in this court detailing out their compliance with prayers 3, 5, 7, 8, 9 and 10 above. (12)The Honourable Court to issue and order that this Petition is in the public interest, each party should bear their own costs. (13)This Honourable Court to issue such further orders and give such directions as it may deem fit to meet the end of justice and Protection of the 2010 Constitution of the Republic of Kenya and rights and Fundamental freedoms of Mwakirunge Community Residents. 40. The Petition was premised on the grounds, testimonial facts and the averments adduced from 21 Paragraphed Supporting affidavit sworn on JUDGMENT ELCPET. E017 OF 2022 Page 27 of 192 HON. JUSTICE L.L. NAIKUNI

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the even date as the Petition by AINEA RAGEN, the Petitioner herein, in which he averred as follows that:(a) Sometime in early year 2021, one of the residents of Mwakirunge sought his assistance in investigating the alleged violations relating to the Mwakirunge dumpsite. (b) In the course of pursuing answers, he met with the leaders of the following Community Based Organisations (CBOs) before commencing his investigations in September, 2021:(i) Usafi ni Uhai CBO – Mwakirunge. (ii) Ujeri Uhumike CBO – Mwakirunge. (iii) Sauti yaWanawake Umbrella CBO – Mwakirunge. (iv) Mwakirunge Citizen Forum CBO – Mwakirunge. (v) Mwakirunge Youth CBO – Mwakirunge. (c) The Petitioner visited the dumpsite, witnessed the alleged violations, observed the presence of dumped medical waste, and, upon meeting with the residents, commenced investigations to identify the persons responsible. (d) In the course of the investigations, the Petitioner wrote inquiry letters dated 6th December, 2021 addressed to the 1 st Respondent’s County Secretary, the 2nd Respondent, and the Land Adjudication and Settlement Officer, Mombasa County. Copies of the said letters were annexed to the supporting affidavit and marked as “AMP – 1”, “AMP – 2”, and “AMP – 3”, respectively. (e) On 8th December, 2021, he wrote to the Director-General of NEMA and the Director/Head of KAA seeking responses to the concerns raised by the residents, and he annexed copies of the said letters marked as “AMP – 4” and “AMP – 5”. (f) Having failed to get any response from the 1 st Respondent’s County Secretary, the Petitioner avers that he wrote to the Office of the Ombudsman by a letter dated 10th February, 2022 however, he received no substantive response. A copy of the said letter was annexed marked as “AMP – 6”. (g) He first wrote to the Auditor-General on 20 th January, 2022 seeking copies of the audit reports relating to the 1st Respondent for the JUDGMENT ELCPET. E017 OF 2022 Page 28 of 192 HON. JUSTICE L.L. NAIKUNI

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FY2012-2022, but the said documents were not availed, and a copy of the letter was annexed and marked as “AMP – 7”. (h) Subsequently, he wrote another letter dated 4th March, 2022, a copy of which was annexed and marked as “AMP – 8”, pointing out the failure by the 6th Respondent to discharge its constitutional mandate. (i) The 4th Respondent, NEMA, eventually responded through a letter dated 6th January, 2022 furnishing a copy of the Environmental Impact Assessment relating to the Mwakirunge dumpsite. He annexed both documents marked as “AMP – 9” and “AMP – 10”. (j) The Petitioner further deponed that, on 16th March, 2022, he received a response from the Auditor-General enclosing audit reports for seven (7) consecutive financial years, namely FY2013/2014 to FY2019/2020, showing how the 1st and 2nd Respondents had utilised public funds, which reports he annexed and marked as “AMP – 11” to “AMP – 18”, respectively. (k) The Petitioner was granted access to the Mwakirunge dumpsite file at the 4th Respondent’s offices, where he obtained copies of letters of objection from the Kenya Civil Aviation Authority (KCAA), the Kenya Airports Authority (KAA), and Kenya Airways (KA) opposing the dumping of garbage and other waste at the present site of the Mwakirunge dumpsite, these letters were annexed and marked as “AMP-19”, “AMP - 20”, and “AMP - 21” respectively. (l) In addition, the Petitioner obtained copies of the following documents:(i) (ii) Research commissioned by ACTIONAID Kenya on Mwakirunge annexed and marked as “AMP – 22”; Research on Mwakirunge Dumpsite by Kenyatta University Students annexed and marked as “AMP – 23”; (iii) Petition by Mwakirunge Community to the Clerk of the County Assembly of Mombasa annexed and marked as “AMP – 24”; (iv) Mombasa County treasury annual development plan FY2020/2021 annexed and marked as “AMP – 25”; (v) Mombasa County citizen’s budget estimates FY2018/20192020/2021 annexed and marked as “AMP – 26”; and (vi) Statement from all the Mwakirunge CBOs annexed and marked as “AMP – 27”. JUDGMENT ELCPET. E017 OF 2022 Page 29 of 192 HON. JUSTICE L.L. NAIKUNI

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(m)The Petitioner took photographs of the dumped medical wastes material, which he annexed to the Petition and marked as “AMP - 28”. (n) Further, he held numerous discussions with the Member of County Assembly (MCA) and Ward Administrator, who both informed him that the issue of Mwakirunge Dumpsite was beyond their mandate. (o) The Petitioner also annexed findings published in Kenyan national newspapers by investigative journalists concerning the alleged strategic and deliberate violations of the land and environmental rights of the residents of the Mwakirunge Community, the community’s detailed objections to the dumpsite, and the 1 st Respondent’s response dated 3rd October, 2012 to the 3rd Respondent’s refusal to grant a licence, all of which he annexed and marked as “AMP – 29 – 31”. (p) The residents of the Mwakirunge Community have for many years borne the brunt of the alleged abuses and violations and stand to suffer irreparable loss and damage should the dumpsite continue operating at its present site. (q) The Petitioner concluded that the matters raised concern the enforcement of the Bill of Rights under the Constitution, thus it is in the public interests as well as the interest of justice and the constitution that he sought redress from this court. IV. The case by the 1st and 2nd Respondents 41. Upon filing the Petition and service to the Respondents, the 1 st and 2nd Respondents filed a Memorandum of Appearance and filed a Replying Affidavit sworn on 21st March, 2023 by JOHN WAMBUA FRANCIS, a physical Planner employed by the 1st Respondent, in response, in which he averred that:(a) Land parcel no. LR. MN/II/10071, on which the dumpsite is located, is owned by the 1st Respondent. (b) The portion of Mwakirunge where the dumpsite is situated was formerly government land under the National Government, managed through the Ministry of Lands, and having been unoccupied, was identified by the then Mombasa Municipal Council and set aside for use as a dumpsite. JUDGMENT ELCPET. E017 OF 2022 Page 30 of 192 HON. JUSTICE L.L. NAIKUNI

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(c) Upon identifying the land in Colorado area of Mwakirunge, the former Municipal Council of Mombasa applied to the National Government requesting for its designation as a dumpsite. (d) The National Government approved the application, and the Municipal Council of Mombasa proceeded to draw a Part Development Plan (PDP) for approval by the Ministry of Lands to pave away for issuance of a letter of allotment. (e) Once the PDP was approved, the Municipal Council of Mombasa was issued with a letter of allotment on 1 st July, 2001 which he annexed as “JWF – 1”. (f) Thereafter, the land was surveyed and a Certificate of Lease was processed in favour of the Municipal Council of Mombasa. A copy of the survey plan showing that the dumpsite measures approx. 20.25Ha and is situated on Plot No. MN/II/10071 was annexed as “JWF - 2”. (g) The Municipal Council of Mombasa was thereafter issued with a Certificate of Lease by the National Government in respect of Plot No. MN/II/10071 a copy of which was annexed and marked as “JWF – 3”. (h) The deponent therefore denied the allegation that the land on which the Mwakirunge dumpsite was situated is community land, or that the dumpsite was initially located in Marimani area of Mwakirunge before being relocated to Colorado. (i) He explained that officers responsible for waste disposal in the then Municipal Council of Mombasa mistakenly identified Plot No. MN/II/10071 on the ground, resulting in waste being dumped in an unoccupied area of Mwakirunge known as Marimani, under the erroneous belief that it was the designated parcel. (j) Upon realising the mistake, the Municipal Council of Mombasa collected the waste that had been dumped at Marimani and relocated it to Plot No. MN/II/10071 at Colorado, where the Municipal Council and its successor in title, the 1st Respondent, have since continued waste disposal operations. (k) The deponent further contended that the Government intended to allocate the land surrounding the dumpsite to private individuals through a settlement scheme, which scheme has never materialised, and therefore the residents surrounding the dumpsite cannot claim ownership of the land in the absence of valid title documents. JUDGMENT ELCPET. E017 OF 2022 Page 31 of 192 HON. JUSTICE L.L. NAIKUNI

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(l) He further asserted that the persons occupying the dumpsite area and its environs are doing so unlawfully, as the land remains owned by the National Government. (m) He also refuted the allegation that the dumpsite land was illegally acquired by the 1st Respondent, stating that the National Government must have involved relevant stakeholders prior to approving the Municipal Council of Mombasa’s request for use of Plot No. MN/II/10071 as a dumpsite. V. The case by the 3rd Respondent & the 2nd Interested Party 42. Likewise, the 3rd Respondent and 2nd Interested Party entered Appearance through the office of the Attorney General and filed joint Grounds of Opposition in response to the Petition, contending that the Petition was:(I) Misconceived, frivolous, vexatious and an abuse of the process of court. (II) The Applicant was guilty of laches. (III) The Applicant was the author of their own misfortunes. 43. In further opposition to the Petition, the 3 rd Respondent also filed a Replying Affidavit sworn on 30th October, 2024 by BENJO DANIEL KIBET, a Land Adjudication & Settlement Officer at the Ministry of Lands and Physical Planning, Mombasa Office, who deponed as follows:(a) The Mwakirunge dumpsite never fell within Mwakirunge I or II settlement schemes, thus the 3rd Respondent was in no position to comment on the matter as the land was privately owned by the 1 st Respondent. (b) He, however, stated that the settlement schemes was heavily encroached upon by persons claiming ancestral attachment, as evidenced by numerous homesteads, farmland, and graveyards. (c) The Government, through the Ministry of Lands, acquired privately owned land to settle and formalize the squatters. Accordingly, Mwakirunge I had been planned, surveyed and allocated, while Mwakirunge II was in the process of allocation. JUDGMENT ELCPET. E017 OF 2022 Page 32 of 192 HON. JUSTICE L.L. NAIKUNI

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(d) He conceded that the Mwakirunge Community residents settled in the area prior to the establishment of the dumpsite. (e) He averred that it was the 1st Respondent’s responsibility to put in place measures and regulations for proper management of the dumpsite, including erecting a perimeter wall or fence and tarmacking access roads to, from and around the dumpsite to prevent dumping within road reserves. (f) VI. He urged that there ought to be a tangible scientific investigation by professional bodies to conduct studies on the impact of the dumpsite on the surrounding community before any decision was made to relocate or vacate the area. The case by the 4th Respondent 44. The 4th Respondent opposed the Petition through a Replying Affidavit sworn on 14th March, 2023 by SAMUEL LOPOKOIYIT, its County Director of Environment, Mombasa County. In response to the matters raised in the Petition, he deponed as follows:(a) The deponent stated that the National Environment Management Authority (NEMA), the 4th Respondent, was established under the provision of Section 7 of the Environmental Management and Co ordination Act (EMCA) to exercise general supervision and co ordination over all matters relating to the environment. (b) He explained that the 4th Respondent is mandated under Section 58 of EMCA to issue Environmental Impact Assessment (EIA) licences prior to the commencement of projects, following an assessment of their likely environmental impacts and the proposed mitigation measures. (c) He further deponed that, under Part 2 of the Fourth Schedule to the Constitution of Kenya, 2010, the functions relating to refuse removal, refuse dumps, and solid waste disposal were devolved to county governments. (d) He stated that the 4th Respondent's role in waste management is governed by EMCA and the Environmental Management and Coordination (Waste Management) Regulations, 2006, and is limited to the issuance of licences for the operation of waste disposal sites and JUDGMENT ELCPET. E017 OF 2022 Page 33 of 192 HON. JUSTICE L.L. NAIKUNI

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treatment plants, licences for the transportation of waste, and permits for the export of waste. (e) He further averred that waste disposal sites and waste disposal works were classified as high - risk projects under Paragraph 3 (12) of the Second Schedule to EMCA, thereby requiring a project proponent to undertake an Environmental and Social Impact Assessment (ESIA) study prior to commencement of the project and to submit the report to the 4th Respondent before an EIA licence could be issued. (f) He stated that, on 26th April, 2011, the 4th Respondent received copies of an Environmental Impact and Social Assessment Study Report from the then Deputy Prime Minister and Ministry of Local Government in respect of the proposed Mwakirunge Sanitary Landfill. The report was assigned Reference No. NEMA/EIA/5/2/730, and he annexed a copy of the acknowledgment letter thereto dated 26th April, 2011 as “SL – 1”. (g) He further averred that the 4th Respondent consulted the relevant lead agencies and committees, requesting their views and comments to facilitate an informed review of the EIA Study Report. In that regard, the then Ministry of Environment & Natural Resources issued a letter of no objection dated 27 th May, 2011, which was annexed marked as “SL – 2”. (h) However, KAA objected to the proposed project through letters dated 3rd June, 2011 and 14th June, 2011, which were annexed to the affidavit and marked as “SL - 4(a) and (b)”. (i) Notwithstanding the objection by KAA, the 4th Respondent issued the project proponent with a notice for publication inviting comments from the public on the EIA Study Report. The notice was subsequently published in one of the local dailies “the Daily Nation” newspaper on 6th June, 2011. Copies of the notice for publication and the newspaper extract were annexed to the affidavit and marked as “SL – 5” and “SL – 6” respectively. (j) He further stated that, following the publication of the notice, the 4th Respondent received comments from:(i) Kenya Airways vide letter dated 22 nd June, 2011 objection to the project on basis of threats to aviation safety annexed and marked as “SL – 7”. (ii) KCAA letter of objection dated 30th June, 2011 also citing aviation safety concerns annexed and marked as “SL – 8”. JUDGMENT ELCPET. E017 OF 2022 Page 34 of 192 HON. JUSTICE L.L. NAIKUNI

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(iii) Letter from Environment Trust of Kenya dated 11 th July, 2021 annexed and marked as “SL – 9”. (k) He further deponed that a notice convening a public hearing meeting scheduled for 25th August, 2011 was published in the Daily Nation newspaper on 17th August, 2011 and a copy of the newspaper extract for the meeting was annexed and marked as “SL – 10”. (l) This meeting was held at the Colorado Trading Centre, Mwakirunge and the residents were adequately represented as evidenced by a copy of the proceedings and attendance register annexed to the Affidavit and marked as “SL – 11”. (m) He averred that, having followed due process in reviewing the EIA Study Report and consulted the relevant lead agencies and stakeholders, the 4th Respondent rejected the project proponent’s application for an EIA licence and advised them to explore alternative sites. This was communicated by letters dated 6th July, 2012 and 29th October, 2012, annexed and marked as “SL – 12 (a)” and “SL - 12(b)”, respectively. According to them, no subsequent EIA Study Report had been submitted in respect of an alternative site. (n) Consequently, the 4th Respondent never issued an EIA licence for the Mwakirunge dumpsite as required under EMCA and the Environmental Management and Co - ordination (Waste Management) Regulations, 2006. (o) However, he asserted that both the Petitioner and the residents of Mwakirunge were afforded an opportunity to present their views regarding the proposed Mwakirunge sanitary landfill, and accordingly denied the allegation that there had been no public participation. (p) Further, he denied the allegation that the 4th Respondent failed to address the concerns raised by the residents of Mwakirunge or that it was complicit in the alleged violations complained of, maintaining that the 4th Respondent had at all material times been conscious of its statutory mandate under EMCA. (q) He admitted that the 4th Respondent received a Petition dated 7 th April 2021 from the residents concerning the dumping of waste at Mwakirunge and acknowledged receipt thereof by a letter dated 5 th May, 2021, in which it undertook to address the concerns raised. JUDGMENT ELCPET. E017 OF 2022 Page 35 of 192 HON. JUSTICE L.L. NAIKUNI

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Copies of the Petition and the acknowledgment letter were annexed and marked as “SL – 13” and “SL – 14”, respectively. (r) He further deponed that the 4th Respondent conducted an inspection of the dumpsite on 21st May, 2021 and established that the ten minimum requirements developed for county governments on the sound collection, transportation, and disposal of waste had not been met. (s) Following the inspection, the 4th Respondent issued an Environmental Restoration Order dated 15th June, 2021, pursuant to Section 108 of EMCA, requiring the 1st Respondent to undertake various corrective measures in relation to the Mwakirunge dumpsite. A copy of the Order was annexed and marked as “SL – 15”. (t) In response to the Restoration Order, the 1 st Respondent wrote to the 4th Respondent by a letter dated 6 th July, 2021 requesting twenty-one (21) days within which to submit a detailed implementation roadmap, which letter was annexed and marked as “SL – 16”. (u) He further deponed that, despite continued follow-up by the 4 th Respondent, the 1st Respondent had, as at February, 2022, failed to comply with the ten-point minimum requirements as evidenced by the report dated 4th February, 2022 annexed and marked as “SL – 17”. That further implementation was suspended after the 4 th Respondent was served with the pleadings herein on 13th May, 2022 so as to avoid interfering with the pending judicial proceedings. (v) He averred that Section 90 of EMCA, relating to the obtaining of court orders, is not couched in mandatory terms, as there are alternative mechanisms available to ensure compliance, including the issuance of Environmental Restoration Orders. (w) He further deponed that Section 4 of the Intergovernmental Relations Act, 2012 promotes cooperation between the national and county governments and the minimisation of intergovernmental disputes, while Section 31 thereof requires the two levels of government to exhaust all available dispute resolution mechanisms before resorting to judicial proceedings. (x) He stated that the 4th Respondent had no knowledge of issues relating to the ownership or occupation of the Mwakirunge land or any alleged forced evictions, but noted that the title documents JUDGMENT ELCPET. E017 OF 2022 Page 36 of 192 HON. JUSTICE L.L. NAIKUNI

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issued in favour of the Municipal Council of Mombasa formed part of the EIA Study Report. (y) He also denied any knowledge of the alleged fatalities at the dumpsite and denied that the cited incidents were attributable to the 4th Respondent. (z) In light of the foregoing, he refuted the allegation that the 4 th Respondent had abdicated its statutory and constitutional mandate to safeguard the environment, and maintained that it had taken all necessary steps to ensure compliance with EMCA and the Constitution. (aa) On that basis, he deponed that prayers Nos. (2), (3), (4), and (7) of the Petition could not issue against the 4 th Respondent. He nevertheless expressed the 4th Respondent's willingness to implement any lawful orders issued by this Court aimed at ensuring compliance with EMCA. VII. The case by the 6th Respondent 45. The Petition was further opposed by the 6 th Respondent through a Replying Affidavit sworn on 25th May, 2022 by MILCAH A. ONDIEK, the Head of Legal in the Office of the Auditor - General. The contents of the affidavit may be summarised as follows:(a) The 6th Defendant’s Office was established under the provision of Article 229 of the Constitution of Kenya, 2010 and was mandated to audit and report on:(i) The accounts of the national and county governments; (ii) The accounts of all funds and authorities of the national and county governments; (iii) The accounts of all courts; (iv) The accounts of every commission and independent office established by the Constitution; (v) The accounts of the National Assembly, the Senate and the county assemblies; JUDGMENT ELCPET. E017 OF 2022 Page 37 of 192 HON. JUSTICE L.L. NAIKUNI

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(vi) The accounts of political parties funded from public funds; (vii) The public debt; and (viii) The accounts of any other entity that legislation requires the Auditor-General to audit. (ix) The accounts of any entity that is funded from public funds. (b) The deponent stated that, pursuant to Article 229(7) and (8) of the Constitution, audit reports are submitted to Parliament or the relevant County Assembly, which is required to consider the reports and take appropriate action within three months of their receipt. (c) The deponent further averred that Article 252 of the Constitution and Section 30 of the Public Audit Act empower the Auditor-General to determine the scope and extent of an audit and, where appropriate, to conduct investigations either on its own initiative or upon receipt of a complaint from a member of the public. (d) The deponent further stated that the 6th Respondent is an independent constitutional office pursuant to Article 249(2)(b) of the Constitution and Section 10 (1) of the Public Audit Act, 2015, andwas therefore not subject to the direction or control of any person or authority. (e) In that regard, the deponent relied on the decision in the case of:“Samson Owimba Ojiayo – Versus - Independent Electoral and Boundaries Commission (IEBC) & Another (2013)” in support of the proposition that even the Court could not compel the 6 th Respondent to exercise its discretionary powers in a particular manner. (f) The deponent thus averred that the Petitioner’s prayer seeking an order directing the 6th Respondent to conduct a forensic audit within ninety (90) days of the Judgment and to publicise its findings is inconsistent with Article 249(2)(b) of the Constitution and Section 10 of the Public Audit Act, 2015. 46. On its part, the 1st Interested Party responded to the Petition vide a Replying Affidavit sworn by MARK C. NDIEMA, its Regional Manager, Lower Coast Region, who stated that:JUDGMENT ELCPET. E017 OF 2022 Page 38 of 192 HON. JUSTICE L.L. NAIKUNI

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(a) The 1st Interested Party was an independent body empowered to investigate the conduct of any person and/or body which in its opinion constitutes corruption, economic crime or unethical conduct under Chapter 6 of the Constitution and the Ethics and Anti-Corruption Act, 2011, the Anti-Corruption and Economic Crimes Act and the Leadership & Integrity Act, 2012. (b) Pursuant to Article 252 of the Constitution, the 4 th Respondent has power to conduct investigations either of its own initiative or on complaint made by a member of the public. (c) On 6th April, 2016 the 1st Interested Party received an anonymous complaint on allegation of procurement irregularities in the tendering for hire of trucks, bulldozers and shovels for garbage collection for County Government of Mombasa in FY 2013/204, 2014/2015 and 2015/2016. (d) He confirmed that investigations on the same had commenced and once concluded, the 1st Interested Party will make necessary recommendations to the Director of Public Prosecution should any criminal culpability be found. VIII. The Supplementary Affidavit by the Petitioner. 47. The Petitioner filed a Supplementary Affidavit sworn on 29 th September, 2022 in response to the Replying Affidavits of the 1 st, 2nd and 6th Respondents. In response to the averments made in the 1 st and 2nd Respondents Affidavits, the Petitioner’s case may be summarised as follows:(a) The Petitioner deponed that the matter before the Court is a Constitutional Petition brought pursuant to Article 22 of the Constitution for the enforcement of the Bill of Rights, and that the constitutional rights of the residents of Mwakirunge have been violated by the 1st and 2nd Respondents over several years. (b) The Petitioner further deponed that he was acting in his capacity as a Kenyan citizen and in the public interest on behalf of the residents of the Mwakirunge Community, pursuant to Articles 3 (1) and 258 (2)(b) and (c) of the Constitution, to challenge the 1 st and 2nd Respondents’ alleged continued violation of Articles 10, 21, 42, 69, 75 and 201 of the Constitution over a period of fourteen (14) years. JUDGMENT ELCPET. E017 OF 2022 Page 39 of 192 HON. JUSTICE L.L. NAIKUNI

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(c) The Petitioner stated that the residents had been threatened by persons and entities who have allegedly benefiting from the operation of the dumpsite; some residents had died as a result of its alleged adverse effects, and that the graves of their relatives had been covered by heaps of garbage. (d) The Petitioner averred that sixteen (16) graves had been covered by garbage at the dumpsite and annexed a list of the deceased persons who had been buried on the land where the dumpsite was situated, which was annexed and marked as “AM – 2”. (e) The Petitioner also annexed statements by Joseph Kenga Kaingu (ID No. 10690319), Kaingu Tuva, Salim Kahindi Kaingu (ID No. 11788960), Safari Kaingu Tuva (ID No. 26658240), and Khamis Kingi Kapombe (ID No. 9207355), who alleged that they were forcibly evicted from their homes when garbage trucks commenced dumping waste without prior notice. The said statements were annexed and marked as “AM – 3”. (f) The Petitioner stated that on several occasions, members of the community were arrested whenever they raised concerns regarding the environmental violations allegedly occasioned by the dumpsite, and he annexed and marked as “AM – 4” a statement as well as a list of ten (10) members who were allegedly unlawfully arrested on 15 th August, 2013 and charged before the Shanzu Law Courts. (g) He averred that Jumwa Kea Moli, a resident of Colorado died of diarrhoea at Coast General Hospital on 20th December, 2009 and he annexed statements by Hamisi Kingi Kapombe and Mr. Ndune Dzifieni in that regard marked as “AM – 5”. (h) Further, that on 9th March, 2015 a resident named Hamisi Tutu Kirao (ID No. 33811521) was burnt by chemical or oil that had been dumped at the dumpsite and was treated at Mlaleo Hospital, and his statement is annexed marked as “AM – 6”. (i) In addition, on 28th February, 2019 Michael Ruwa (ID No. 38935739) suffered an electric shock atop a garbage truck at the dumpsite that affected his skin and was treated at Coast General Hospital for 2 months, his statement and medical bills were annexed and marked as “AM – 7”. (j) The Petitioner claims that Alice Nzalambi David (ID No. 39793326), sustained burns from a toxic chemical that was being dumped daily on the main road at the dumpsite while she was a class 5 pupil at JUDGMENT ELCPET. E017 OF 2022 Page 40 of 192 HON. JUSTICE L.L. NAIKUNI

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Digirikani Primary School in Mwakirunge and her statement is annexed and marked as “AM – 8”. (k) The Petitioner further annexed and marked as “AM – 9” statements and medical bills of Amani Ndoro (ID No. 30336314), Leonard Mangale Phares (ID No. 24459675) and the late Sidi Karisa Charo (ID No. 2238125) who are alleged to have been hit by lorries transporting garbage to the dumpsite. (l) In response to the 1st and 2nd Respondents' query regarding the parcels of land occupied by the affected residents, the Petitioner reiterated that he wrote to the Mombasa County Land Adjudication and Settlement Officer by a letter dated 6th December, 2021, annexed and marked as “AM – 10”, seeking information on the ownership of the land on which the dumpsite is situated, but no response was received. (m)He also inquired from the Coast Regional Surveyor whether the land had been surveyed and also requested a copy of the RIM, but was informed that the land had neither been surveyed or planned. (n) The deponent asserted that the dumpsite land was occupied by the Mwakirunge community prior to the forced eviction, consequently, the 1st Respondent cannot claim it or question whether there were people living thereon. (o) The Petitioner further claims that the 1st and 2nd Respondent have not produced any legal ownership documents in respect of the dumpsite land, nor shown that NLC was involved in its alienation, and questions the authority under which they dumped waste on the subject land. (p) The Petitioner deponed that the 1 st and 2nd Respondent had acknowledged that the affected residents can be compensated for damages suffered. 48. In the same Supplementary Affidavit, the Petitioner responded to the 6 th Respondent’s Replying Affidavit as follows:(a) The Petitioner deponed that, pursuant to Article 19 of the Constitution, the rights and fundamental freedoms in the Bill of Rights belong to every individual and were not granted by the State or the Auditor General. Accordingly, Article 249 (2)(b) of the Constitution and Section 10 of the Public Audit Act do not take precedence over the Bill of Rights under Chapter Four of the Constitution. JUDGMENT ELCPET. E017 OF 2022 Page 41 of 192 HON. JUSTICE L.L. NAIKUNI

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(b) The Petitioner further averred that the 6 th Respondent misinterpreted Article 249 (2)(b) of the Constitution and Section 10 of the Public Audit Act to suggest that it is beyond scrutiny, questioning, or legal proceedings even where its actions are alleged to contribute to violations of human rights. (c) The Petitioner questioned whether human rights violations against the residents of Mwakirunge should continue while public funds intended to address such violations were are allegedly misappropriated, whilst the 6th Respondent is claims they are shielded under Article 249 (2)(b) and Section 10 of the Public Audit Act. (d) The Petitioner called out the inappropriateness of the tone and content of the 6th Respondent’s Replying Affidavit, particularly its reliance on Article 249(2)(b) and Section 10, in a matter of public interest involving alleged long-standing human rights violations. He referred to his second letter to the 6th Respondent marked as “AM – 11”. (e) The Petitioner further questioned whether the sovereignty of the residents of Mwakirunge, as contemplated under Article 1(2), (3)(b) and (4)(b) of the Constitution, is undermined where institutions mandated to investigate misappropriation of public funds allegedly fail to act and instead rely on Article 249(2)(b) and Section 10 of the Public Audit Act as a shield. (f) The Petitioner added that pursuant to Section 4 of the Public Audit Act, the Office of the Auditor-General is capable of suing and being sued, and therefore the residents of Mwakirunge are entitled to seek redress before this Court in respect of alleged violations of their constitutional rights and fundamental freedoms by the 6th Respondent. (g) The Petitioner deponed that Article 249(2)(b) of the Constitution and Section 10 of the Public Audit Act do not confer on the 6 th Respondent immunity from legal proceedings, and that courts have on numerous occasions issued orders against independent offices and commissions pursuant to Article 165(3)(b) and (d) of the Constitution and Sections 4 (2) and 13(1), (2), (3) and (7) of the Environment and Land Court Act, No. 19 of 2019. (h) He averred that the Petition raises issues of great public interest touching on the fundamental rights and freedoms of the residents of Mwakirunge, and that it would amount to further infringement should the Court uphold the position advanced by the 6th Respondent. JUDGMENT ELCPET. E017 OF 2022 Page 42 of 192 HON. JUSTICE L.L. NAIKUNI

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(i) The Petitioner urged that the court has jurisdiction under Article 165(3) (b)(d) to interpret the Constitution and grant the orders sought in this Petition. (j) According to the Petitioner, under Article 159 of the Constitution, the Court ought to adopt an interpretation that promotes the enforcement of rights and redress for the Mwakirunge Residents, whose rights have been violated, and the orders sought herein do not offend the Constitution. (k) The Petitioner asserted that the Petition concerns the mandate of the 6th Respondent, in that the residents, as taxpayers, seek accountability on the use of public funds and assets intended to address issues affecting their constitutional rights and fundamental freedoms, and that the Petition ought therefore to be welcomed by the 6th Respondent and other State organs. 49. The Petitioner filed another Supplementary Affidavit sworn on 9th December, 2022 in which he states as follows:(a) The Petitioners averred that on 30th September, 2022 this court conducted a site visit at the Mwakirunge dumpsite and directed him to avail additional statements and evidence from persons affected by the dumpsite, as well as an environmental expert report. In compliance with the said directions, the Petitioner has annexed the following documents:(i) Statement by Kalama Katana Kaingu (ID No. 31053860) and medical bills of his son Rama Ruwa who was run over by a truck dumping garbage at the dumpsite on 24th March, 2022 and later died annexed and marked as “RM – 1”. (ii) Statement marked as “RM – 2” by Khamisi Mwavita (ID No. 36808330) who fell and landed on electric cables while helping to offload garbage from a truck bearing the registration no. KCQ 756J on 28th February, 2020 and was treated at Coast General Hospital and later discharged. (iii) Statement marked as “RM – 3” by Amani Ndoro (ID No. 39336314 whose left leg was run over by a truck dumping garbage at Mwakirunge dumpsite on 31st March, 2022 at 3.00pm, she was admitted at Coast General Hospital for a week. JUDGMENT ELCPET. E017 OF 2022 Page 43 of 192 HON. JUSTICE L.L. NAIKUNI

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(iv) Photographs and copy of ID marked as “RM – 4” and “RM – 5” relating to Elias Kimathi (ID No. 2336314) who was run over by a truck registration no. KCS 083M operated by K511 Logistics Co. Limited on 26th November, 2022 and was killed instantly. (v) Statement marked as “RM – 6” by Sidi Kahindi Kadenge (ID No. 2045996) niece to the late Mama Sidi karisa Charo who died after being run over by a truck dumping garbage at Mwakirunge dumpsite and medical reports from Coast General Hospital marked as “RM – 7”. (vi) Statement marked as “RM – 8” by Khamisi Kingi Kapombe (ID No. 9207355) showing how the dumpsite has negatively affected his personal health and that of his family. (vii) Statement marked as “RM – 9” by Salimu Kahindi Kaingu (ID No. 11788960 showing forceful eviction and how the dumpsite has negatively affected his personal health and that of his family. (viii) Statement and ID copy of Leonard Mangale Phares, marked as “RM – 10”, whose feet were burnt by chemicals from Changamwe Oil Refinery dumped at Mwakirunge dumpsite. (ix) Statement marked as “RM – 11” by Mnyasi Karisa Mwagwabi (ID No. 35731586) and burial permit of her 13-year old child Rama Myesi Hassan marked as “RM – 12”, who was run over on 15 th November, 2018 by a truck dumping garbage at Mwakirunge dumpsite. (x) Statement marked as “RM – 13” by Mama Tumaini Fondo Mwarema (ID No. 9477492) who lost two children as a result of Mwakirunge dumpsite related diseases. (xi) Statement marked as “RM – 14” by Charo Thura Kaingu (ID No. 9477492) who also lost his child as a result of Mwakirunge dumpsite related diseases. (b)The Petitioner avers that the accidents, loss of lives and human rights violations would not have occurred had the Respondents complied with the law on waste management. He instead accuses the Respondents of acting with impunity and ignoring the problem, while the residents of Mwakirunge continued to suffer. (c) The Petitioner states that shortly after the site visit conducted by Court, he engaged the services of Prof. Bernards Okeyo PhD, CEO of JUDGMENT ELCPET. E017 OF 2022 Page 44 of 192 HON. JUSTICE L.L. NAIKUNI

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Eco-Ethics International, a certified environmental scientist and lecturer at Pwani University to undertake an environmental analysis on the effects of the Mwakirunge dumpsite. He annexed the resultant report marked as “RM – 15” together with an invoice of a sum of Kenya Shillings Two Hundred and Two Thousand (Kshs. 202,000/- )charged in respect of the services rendered in preparing the report. (d)The Petitioner further listed the names of persons whose graves are covered by garbage at the dumpsite, those who have died by being run over by trucks dumping waste at the dumpsite and a list of those who were forcefully evicted from the Mwakirunge dumpsite land. (e) The Petitioner also set out a list of residents whose health had been adversely affected by smoke, toxic emissions, contaminated water and chemicals dumped at Mwakirunge dumpsite; those who suffered electric shocks or injuries from electric power cables; and finally, a list of residents wrongfully arrested by police and charged at Shanzu law Courts for participating in demonstrations against the illegal dumping at Mwakirunge dumpsite. (f) The Petitioners claims that the 1st and 2nd Respondents had acknowledged in their Replying Affidavit that the affected individuals, residents and families listed in the Supplementary Affidavit, who were and are still being affected by the continued dumping, can be compensated. (g)Therefore, the Petitioner urged the court to determine the appropriate compensation for the affected individuals, families and residents listed herein, commensurate with the nature of the alleged abuse and rights violation meted on them arising from the continued illegal operation of the Mwakirunge dumpsite for the approximately 14 years. 50. The Petitioner also responded to the 1st and 2nd Respondents’ Replying Affidavit by filing a Supplementary Affidavit dated 25th September, 2023, wherein he averred as follows::(a) That he is the CEO of Center for Litigation on Environment Governance (CLEG), a registered NGO engaged in public interest litigation and the protection of communities’ rights to a clean and safe environment and good governance. JUDGMENT ELCPET. E017 OF 2022 Page 45 of 192 HON. JUSTICE L.L. NAIKUNI

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(b)The Petitioner averred that the violations at the Mwakirunge dumpsite have been ongoing for several years, and that previous attempts by affected families to stop them had failed. He therefore contended that the 1st and 2nd Respondents were misleading the Court in alleging that the present Petition had hindered efforts to address the concerns raised. (c) The Petitioner accused the 1st and 2nd Respondents of failing to comply with the orders of this Court issued on 23 rd March, 2023 directing them to construct a temporary fence, and denied that the Petition or proceedings herein had in any way prevented them from addressing the issues raised. (d)The Petitioner averred that although the 1st and 2nd Respondents stated that funds set aside for the Mwakirunge dumpsite were diverted to other uses, they did not disclose where the funds went, or the specific use to which the funds were applied. (e) The Petitioner further averred that the diversion of funds meant for addressing environmental and human rights violations had not only been admitted, but also demonstrated a lack of concern by the 1 st and 2nd Respondents for the suffering of the affected residents. (f) The Petitioner further stated that the 1 st and 2nd Respondents had admitted that opposition from the KAA had prevented them from erecting a temporary fence at the dumpsite, yet they continued dumping waste notwithstanding such objections. (g)The Petitioner contended that funds allocated for a bulldozer in the 2018/2021 period were not properly utilised for the intended purpose but were instead misappropriated by persons known to the 1 st and 2nd Respondents, whom they are protecting. (h)The Petitioner further averred that despite allocations of funds for Phase One and Phase Two to ensure proper waste disposal, the dumpsite remains in a deplorable state and continues to emit toxic fumes due to ongoing burning of waste. (i) The Petitioner asserted that the funds meant for the management of the Mwakirunge dumpsite were mismanaged, and termed the averments in the 1st and 2nd Respondents’ Replying Affidavit misleading, untrue and meant to deter the Court from granting the orders sought. JUDGMENT ELCPET. E017 OF 2022 Page 46 of 192 HON. JUSTICE L.L. NAIKUNI

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(j) The Petitioner refuted the claim that the Mwakirunge dumpsite land belongs to the 1st Respondent or that the land was unoccupied, and instead asserted that the residents have lived on the land for over forty (40) years, with graves of their relatives located thereon and allegedly covered by heaps of garbage. (k) The Petitioner averred that upon being served with the Certificate of Title, he sought for the ownership records from the Lands Registration offices in both Mombasa and Nairobi but was unable to obtain them, as the information was not availed, and he annexed a letter to the Lands Registrar, Nairobi marked as “AM -1”. (l) Owing to the failure by the registries to provide proof of ownership in favour of the 1st Respondent, the Petitioner expressed the belief that the land constitutes community land occupied by the families listed in his previous affidavits, who were allegedly forcibly evicted due to dumping activities and compelled to seek alternative places of residence. (m) In the Petitioner’s view, the Certificate of Title and allotment letter are strange documents that could not be proved or traced at the land registries in either Nairobi or Mombasa. (n)The Petitioner reiterated that on numerous occasions, the residents were arrested, beaten by police and imprisoned on the 1 st Respondent’s instructions for demonstrating against the illegal dumping. (o) With respect to the 1st and 2nd Respondents’ claim that a management committee for the dumpsite had been established, the Petitioner annexed affidavits marked as “MA – 2” and “MA – 3”, sworn by Constance Chivatsi and Hamisi Kingi Kapombe, residents of Mwakirunge, who denied having attended the alleged meeting and rejected the alleged use of their names. (p)The Petitioner further averred that in the said affidavits, the deponents stated that a significant number of persons listed by the 1 st and 2nd Respondents as having attended the meeting where the management committee of Mwakirunge dumpsite was established, were minors or strangers to the Mwakirunge area. (q)The Petitioner contended that the 1st and 2nd Respondents had demonstrated impunity in their dealings before the Court and in their response to the plight of affected individuals, families, and schoolgoing children, notwithstanding existing court orders. JUDGMENT ELCPET. E017 OF 2022 Page 47 of 192 HON. JUSTICE L.L. NAIKUNI

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(r) The Petitioner asserted that the dumpsite was illegal and unlicensed, poses a significant risk to aircraft, and had caused severe environmental and human rights violations. Therefore, he urged that, in the interests of justice and the affected residents, the orders sought in the Petition be granted and the dumpsite be relocated to a more suitable location. 51. The Petitioner filed a Further Supplementary Affidavit dated 26 th June, 2024 stating as follows that:(a) On 22nd April, 2024 the Court ordered a report on the social, medical and economic dimensions of the environmental impacts of the Mwakirunge dumpsite, and he annexed a copy of the said order marked as “SM – 1”. (b)That pursuant to the said order, he engaged the Prof. Benards Okeyo who carried out a Social Environmental Assessment between May and June, 2024 titled “The Peril that is Mwakirunge Dumpsite; Social Impact Assessment Report”, a copy of which was annexed marked as “SM – 2”. IX. The direction by Court before the hearing. 52. When the matter came up for mention on 21 st September, 2022 the Court directed that the Petition would disposed of by way of written submissions, affidavit evidence, as well as of ‘viva voce’ evidence to be adduced by witnesses and environmental experts. The Court further n directed site visit (Locus in Quo), be undertaken, the report of which was included in the court record. Thereafter, the court fixed the matter for hearing. X. Adducing of oral evidence 53. Hearing of the Petition commenced in earnest on 29 th February, 2024. The Petitioner called five (5) witnesses in support of his case. Collectively, the Respondents also called six (6) witnesses in support of their respective cases. XI. The case by the Petitioner A. Examination – in - Chief of the Petitioner (PW - 1) JUDGMENT ELCPET. E017 OF 2022 Page 48 of 192 HON. JUSTICE L.L. NAIKUNI

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54. The Petitioner, Ainea Ragen, testified on oath as PW - 1. He introduced himself as a resident of Constituency of Kisauni within County of Mombasa and described himself as an environmental activist. He confirmed having filed a statement and the various Supplementary Affidavits in support of the Petition. He further confirmed that he had annexed thirty-one (31) documents to the Supporting Affidavit, including statements by persons whose relatives were buried at the dumpsite, those affected by chemicals and other pollutants, and those who were evicted or knocked down by garbage collection vehicles. B. Cross examination of PW - 1 by Ms. Kisingo Advocate 55. On cross-examination by Ms. Kisingo, Learned Counsel for the 1 st and 2nd Respondents, PW - 1 admitted that he never resided at Mwakirunge. He testified that during the site visit, the graveyard where some persons had been buried was pointed out. He conceded that he had not produced any documents to prove ownership of the suit property. 56. PW - 1 further testified that the persons who sustained injuries at the dumpsite sought treatment from medical practitioners but did not provide documentary evidence in support thereof. He also conceded that, in law, a person who enters land belonging to another without permission is deemed and/or regarded as a trespasser. C). Cross - examination of Petitioner by M/s. Muyai advocate 57. On further cross-examination by Ms. Muyai, Learned Counsel for the 4 th Respondent, PW - 1 testified that he had instituted the Petition in his own capacity and on behalf of other affected persons, and had filed a List of Authority to that effect. He reiterated that as stated at paragraph 21 of JUDGMENT ELCPET. E017 OF 2022 Page 49 of 192 HON. JUSTICE L.L. NAIKUNI

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the Petition, he became aware of the issues affecting Mwakirunge in the year 2021, as he does not reside there. 58. Regarding public participation, PW - 1 admitted that he had been served with the 4th Respondent's Replying Affidavit, which contained minutes of a meeting demonstrating that members of the public attended the consultation process. When referred to the case of a person who allegedly died at the dumpsite, PW - 1 stated that he was not aware that any other form of redress had been sought elsewhere. He further testified that he was aware of the alleged forceful evictions from the dumpsite. D). Cross - examination of Petitioner by Ms. Ondieki Advocate 59. During cross-examination by Ms. Ondieki, Learned Counsel for the 6 th Respondent, PW1 testified that, in his view, the Auditor-General had failed to discharge her mandate in relation to the matters raised in the Petition. He stated that the Office of the Auditor-General is responsible for oversight of public funds. PW - 1 further testified that he was aware that funds had been allocated by the County Government for the Mwakirunge dumpsite, including funds earmarked for the construction of a fence, which, according to him, had not been erected. He maintained that although public funds had been released for that purpose, the Auditor-General had failed to properly discharge the mandate of that office. 60. PW - 1 further testified that members of the public are entitled to lodge complaints where public funds are not properly utilised. He referred to a sum of Kenya Shillings Two Hundred and Fifty Million (Kshs. 250, 000, 000.00/) allegedly allocated for fencing the dumpsite and the purchase of JUDGMENT ELCPET. E017 OF 2022 Page 50 of 192 HON. JUSTICE L.L. NAIKUNI

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a bulldozer, and stated that he was seeking an order directing the conduct of a proper audit. 61. He testified that a complaint had been lodged by way of a letter but no response had been received. He, however, acknowledged that the audit sought was outside the official auditing roles of that officer. E). Re - examination of PW - 1 62. Upon re - examination, PW - 1 testified that attempts had been made to obtain ownership of the land, albeit unsuccessfully, but maintained that the residents had occupied the land for many years. He further testified that several graves exist on the land and that the County Government subsequently commenced dumping waste thereon. 63. According to PW - 1, meaningful public participation requires the concurrence of the affected public, and in the present case, the affected residents did not support the project. He further maintained that the Office of the Auditor-General is not immune from legal proceedings. F). Examination – in - Chief of the 2nd Witness Petitioner - (PW - 2) 64. PW - 2, Okeyo Bernard, holder of the National Identity Card bearing all the particulars as shown to Court. He testified under oath. He introduced himself as a Professor of Environmental Science at Pwani University. He stated that he holds a PhD in Ecology and Environmental Science obtained from Egerton University and from Germany. He further testified that he is a registered Environmental Agent with NEMA and other bodies within and outside Africa. PW - 2 testified that he was engaged by the Petitioner to undertake an environmental study of the Mwakirunge dumpsite. He explained that his study was divided into three components. JUDGMENT ELCPET. E017 OF 2022 Page 51 of 192 HON. JUSTICE L.L. NAIKUNI

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65. On the first component, which concerned air quality, PW - 2 testified that the concentration of air particles in the air exceeded the limits prescribed by NEMA by approximately three times, measuring about 2.0 cubic metres above the permissible threshold. He explained that such airborne particles are inhaled into the lungs, enter the bloodstream, and, with prolonged exposure, may result in asthma and heart disease and other illnesses. 66. PW - 2 further testified that the concentration of carbon dioxide at the Mwakirunge dumpsite ranged between 3.2 and 3.3 micrograms, compared to the accepted level of 2.0 micrograms. He likened the excessive carbon dioxide concentration to prolonged exposure to emissions from a charcoal stove, which could be fatal. He stated that elevated carbon dioxide levels adversely affect blood vessels and contribute to air pollution. He further informed the Court that laboratory analyses had been conducted and that the corresponding laboratory report was attached to his report. 67. With respect to the second component of the study, PW - 2 testified that he examined water leakage to determine whether rainfall had caused chemicals from the dumpsite to infiltrate groundwater and surrounding soils. He stated that one of the parameters assessed was the Biological Oxygen Demand (BOD). According to PW - 2, the acceptable BOD limit is 30 milligrams per kilogram, whereas samples obtained from the Mwakirunge dumpsite recorded levels of 1,150 milligrams per kilogram, exceeding the permissible limit by over one thousand milligrams. He explained that such contamination is capable of migrating to adjacent land and cannot readily be contained. JUDGMENT ELCPET. E017 OF 2022 Page 52 of 192 HON. JUSTICE L.L. NAIKUNI

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68. PW - 2 also testified on the Chemical Oxygen Demand (COD) levels. He stated that the acceptable limit is 50 milligrams, while samples from the Mwakirunge dumpsite recorded levels of 3,520 milligrams, demonstrating a substantial accumulation of organic and inorganic pollutants. He explained that these contaminants adversely affect not only human beings but also the surrounding flora and fauna. According to PW - 2, crops cultivated in the affected area absorb the contaminants and may subsequently be consumed by humans. Similarly, livestock grazing on contaminated vegetation are exposed to the pollutants, thereby posing additional risks to human health through the food chain. PW - 2 further testified that the levels of ammonia detected at the Mwakirunge dumpsite were high. 69. PW - 2 testified that the third and major component of his study concerned the soil. He explained that since NEMA had not prescribed standards for soil quality, they adopted the Dutch remediation limits as the applicable benchmark. He testified that the zinc level was 665.0 mg/kg, while mercury and copper were recorded at 167.93 mg/kg, with an ash content of 71.74% of the dry weight. According to PW - 2, these findings demonstrate a high concentration of chemical contaminants capable of polluting the soil. He further testified that the contamination alters the quality of the soil, rendering it unsuitable for use by the surrounding community. PW - 2 stated that the situation was dire and that the adverse effects were not confined to Mwakirunge, as the contaminants could spread to other areas. By way of example, he testified that wind could carry the contaminants up to five kilometres away, while underground water could also become contaminated, with JUDGMENT ELCPET. E017 OF 2022 Page 53 of 192 HON. JUSTICE L.L. NAIKUNI

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such contamination being difficult to remedy. PW - 2 clarified, however, that he did not undertake a study on the cumulative effects of the contamination on human health, although he had prepared and filed his report. 70. PW - 2 was recalled on 4th October, 2024 for further testimony. He reiterated that he holds a PhD in Social Ecology, as well as a degree in Aquatic Science. PW - 2 explained that Social Ecology is the study of how human beings were affected by the environment. He further testified that, upon presenting his report on the ecological and environmental study, there arose the need to prepare a socio-economic impact assessment. He informed the Court that he subsequently conducted the assessment and that the report had since been published in various journals. 71. PW - 2 testified that they reassessed the location of the Mwakirunge area and established that the Mwakirunge dumpsite is situated close to Mombasa and serves the population of Mombasa. He explained that the dumpsite was initially located at Kabarani before being moved to Marimani and was subsequently relocated to its current location in the year 2008. PW - 2 testified that the lifespan of a dumpsite should ordinarily be five years and that the Mwakirunge dumpsite had therefore outlived its intended lifespan. He further testified that the study established that many people had been born and raised in the area, but that approximately 75% of them derived no benefit from the dumpsite. According to PW - 2, only about 27% of the population benefited from the dumpsite, most of whom were immigrants who had followed the dumpsite as it was relocated over the years. JUDGMENT ELCPET. E017 OF 2022 Page 54 of 192 HON. JUSTICE L.L. NAIKUNI

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72. PW - 2 stated that his study identified the key negative impact of the dumpsite as being economic in nature. He explained that this arose from the retrieval and resale of contraband and expired goods collected from the dumpsite. PW - 2 stated that the study found goods that had previously been buried but were later uncovered and sold to members of the public. He further testified that they observed a significant number of medical facilities operating within the Mwakirunge area. Additionally, PW - 2 stated that they observed that the roads leading to the dumpsite became blocked, sticky and muddy during the rainy season. 73. PW - 2 informed the Court that the study also established that there was contamination of water sources, which interfered with the aquifer system, including nearby creeks during the rainy season. He explained that due to the high tides, which occur four times a day, the contamination affected both the fishery and the mangrove vegetation. PW - 2 further testified that the communities living around the creeks rely on the water for domestic consumption. He added that, during the rainy season, contaminated water flows into the creeks before eventually reaching the ocean. 74. PW - 2 testified that another effect of the dumpsite was rampant littering by vehicles accessing the site, owing to the fact that the dumpsite was not fenced thus waste paper, plastics and other waste materials to be blown away by the wind. He stated that these wastes adversely affect both humans and animals and further contaminate nearby farms. According to PW - 2, one of the greatest concerns was the burning of plastics, which releases harmful emissions into the atmosphere and contributes to depletion of the ozone layer and climate change. Upon JUDGMENT ELCPET. E017 OF 2022 Page 55 of 192 HON. JUSTICE L.L. NAIKUNI

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being referred to Page 37, Table 2 of his report on health challenges, PW - 2 listed pollution, littering, insecurity, school dropouts, death of domestic animals, family breakups, child delinquency, smoke, foul smell, dust, snakes, scavenger birds, wild dogs, menace and flies as some of the challenges associated with the dumpsite. PW - 2 was further referred to Page 40, Table 6 of the report on infections associated with the dumpsite, where he identified the common diseases as diarrhoea, pneumonia, upper respiratory tract infections (URTI), asthma and tuberculosis (TB). 75. PW - 2 conceded, however, that the study also identified certain positive aspects associated with the dumpsite. He referred to the finding that approximately 27% of the population living around the dumpsite derived some benefits from it. He further testified that there were two health centres at Colorado. PW - 2 also stated that the County Government had promised the residents improved roads and other public amenities but had failed to fulfil those promises. He concluded by expressing his wish that his report be admitted into evidence. G). Cross - examination of PW - 2 by M/s. Kuria and Ms. Kisingo Advocates 76. PW - 2 was cross-examined by both Ms. Kuria and Ms. Kisingo for the 1st and 2nd Respondents. He testified that he was a consultant but has never operated through a company. However, he explained that he engaged the services of a laboratory to undertake the relevant analyses, although he had not called any representative from the laboratory to testify in support of the laboratory report. PW - 2 conceded that he is not a JUDGMENT ELCPET. E017 OF 2022 Page 56 of 192 HON. JUSTICE L.L. NAIKUNI

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medical doctor but explained that he referred to diseases because the study was not confined to the medical profession alone. He further testified that environmental science was multidisciplinary in nature and that the study was undertaken by a team of professionals, including doctors and other experts. 77. PW - 2 confirmed that he held a valid EIA Practising Certificate for the year 2013, which was renewed annually. He testified that, in collecting data, he concentrated on the eight villages of Kolorodo, Mariamani, Mbirikani, Mkomani, Mwabani, Mwakunje, Ngumbe and Mwakirunge. He explained that the focal site covered an area that was not accessible. PW - 2 stated that they did not ascertain whether the land had a title deed, as that was outside the scope of their mandate. He testified that they treated the existing road as the assumed boundary of the site and clarified that the creek never fell within the dumpsite. He further stated that the dumpsite had a beacon, although they did not engage a surveyor because they did not consider it necessary. 78. PW - 2 testified that they dealt with the accessible population, a list of which had been included in their initial study report. He reiterated that he is not a medical expert but explained that the health statistics relied upon in the study were obtained from health institutions and the Ministry of Health. He acknowledged, however, that there was no conclusive proof that all the reported illnesses were attributable to the dumpsite. PW - 2 nevertheless noted that medical facilities within the Mwakirunge area were thriving compared to those in the Bamburi area. He further testified that the objective of the study was to establish the nature of the goods being recovered and sold from the dumpsite and their effects on human JUDGMENT ELCPET. E017 OF 2022 Page 57 of 192 HON. JUSTICE L.L. NAIKUNI

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beings. To achieve this, the study had focus group upon whom they administered questionnaires to. PW - 2 also testified that Mwakirunge was adjacent to the ocean and that tidal waters eventually reach the dumpsite. He further stated that the study documented the case of a woman who allegedly suffered mental depression as a result of smoke emanating from the dumpsite. H. Cross - examination of the PW - 2 by Ms. Waswa Advocate 79. On cross - examination by Ms. Waswa for the 3rd Respondent, PW - 2 testified that he did not ascertain whether the dumpsite land was registered or to whom it is registered. He stated that his main concern was the welfare of the people living on the land as well as the source of the waste, being the County Government. I. Cross - examination of PW - 2 by Ms. Muyai Advocate 80. On being cross-examined by Ms. Muyai for the 4 th Respondent, PW - 2 testified that he had not attached a Certificate from NEMA. He stated that it was not unusual for environmental parameters to show high levels, but explained that it becomes concerning where the levels exceed permissible thresholds, particularly in a dumpsite. With respect to air quality, PW - 2 testified that the method of measurement is provided under the 11th Schedule of the Waste Management Regulations, and that they relied on paragraph 4 thereof. He stated that the air samples were subjected to analysis by a scientific laboratory. He further reiterated that they applied the Dutch Remediation Standards for soil analysis because NEMA had not developed any applicable standards. JUDGMENT ELCPET. E017 OF 2022 Page 58 of 192 HON. JUSTICE L.L. NAIKUNI

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81. PW - 2 confirmed that the study made both short-term and long-term recommendations, including that the dumpsite, having been in existence for a long time, could be relocated or the adoption of incinerators. He testified that although he undertook the study, they did not involve other State agencies such as NEMA, considering the background of the area. Regarding water contamination, PW - 2 stated that the relevant analysis was contained in the first report. 82. PW - 2 was referred to page 25 of his report on sample size selection, and he testified that the 175 residents sampled were selected randomly. He further testified that although the questionnaire used in the study was not attached, this was not necessary so long as the data collected had been presented. PW - 2 informed the Court that if the dumpsite is relocated, there was a population associated with it that tends to move as well. He was further referred to page 42 of his report and acknowledged that the data presented was not fully backed by scientific validation. J. Cross-examination of the PW - 2 by Ms. Wachanga Advocate 83. On cross - examination by Ms. Wachanga for the 5th Respondent, PW - 2 testified that the primary benefit of the report related to the social aspects of the community. In his view, no similar study had been undertaken before. According to PW - 2, the effects of the dumpsite was not unique, but its location was inappropriate. He contended that socioeconomic studies establishment of ought the to have dumpsite. been He conducted further prior testified to the that the establishment of a dumpsite requires appropriate safeguards. JUDGMENT ELCPET. E017 OF 2022 Page 59 of 192 HON. JUSTICE L.L. NAIKUNI

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84. PW - 2 stated that the waste was being deposited by the County Government, and that both NEMA and the Public Health authorities bear responsibility. He added that they also found the graveyard within the area. However, he conceded that the health effects could not be attributed entirely to the dumpsite, as other factors may also have contributed to them. K). Re- examination of PW - 2 by Mr. Ainea (Petitioner) 85. On re - examination by the Petitioner, PW - 2 testified that he is a NEMA Lead Expert, although he clarified that in undertaking the Social Impact Report he was not required to involve NEMA. 86. PW - 2 was not cross-examined by Ms. Ondieki for the 6th Respondent. L). Examination in chief of Petitioner Witness 3 by Mr. Aenea 87. PW - 3 testified under oath. He was Hamisi Kingi Kapombe and a holder of national identity card bearing all the particulars as shown to Court during the hearing of the case. PW - 3 stated that he had lived in Mwakirunge. He testified that when the dumping site commenced operations in the year 2007, it was dangerous. He stated that waste was being dumped outside their homes and that fires would be lit. PW - 3 told the Court that his wife was affected health-wise and later died of cholera on 20th December, 2019. He further testified that after her death, he demolished his house and relocated near the mosque. PW - 3 asserted that the community was affected by smoke pollution and that he had been experiencing persistent coughing which he attributed to the dumping activities. He also testified that all his children was infected. M). Cross - examination of PW - 3 by Ms. Kuria Advocate JUDGMENT ELCPET. E017 OF 2022 Page 60 of 192 HON. JUSTICE L.L. NAIKUNI

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88. On cross - examination by Ms. Kuria, PW - 3 testified that he does not have a title deed to prove that he has any claim on the land he lives on. He further testified that he did not have a Certificate of Death or any documentary proof of the death of his wife. He conceded that it may not be obvious that his cough was caused by the dumping activities. N). Cross - examination of PW - 3 by Ms. Muyai Advocate 89. PW - 3 was cross-examined by Ms. Muyai, and he informed the court that he has lived at Mwakirunge for 16 years. 90. PW - 3 was not cross - examined by Ms. Ondieki for the 6 th Respondent nor was he re - examined. O). Examination in Chief of PW - 4 by Mr. Ainea 91. PW - 4, Tumaini Fondo Mwarema a holder of National Identity Card holding all the particulars. He testified under oath. PW - 4 stated that she was born in the year 1968 and had lived at the Mwakirunge dumping site for 30 years. She testified that the dumpsite “found her there one morning”. She stated that she continued to live there with her family, comprising her husband and children. PW - 4 claimed that two of her children died and that other residents had also lost children, all of whom were buried within the area. She further stated that, culturally, they worship those who have passed on. PW - 4 complained that waste had been dumped onto their homes beyond the boundary of the designated dumping site, such that she no longer knows where or how to live. She testified that she would wish to live like a proper human being, but that the existence of the dumpsite frustrated those aspirations. 92. PW - 4 was neither cross - examined nor was she re - examined. After the testimonies of the four (4) witnesses, the Petitioner closed his case. JUDGMENT ELCPET. E017 OF 2022 Page 61 of 192 HON. JUSTICE L.L. NAIKUNI

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The case 3rd Respondent A). Examination in Chief of RW - 1 by Ms. Waswa Advocate 93. Hearing of the Respondents' case commenced on 4th October, 2024, with the 3rd Respondent calling Benjo Kibet Daniel, a District Land Adjudication Officer, Kwale, to testify as RW - 1. RW - 1 adopted the 3rd Respondent's affidavit dated 30th October, 2024 as his evidence in chief. He confirmed that he was testifying in relation to the Mwakirunge dumpsite and that he was aware of the land in question. However, he testified that the Ministry of Lands was not involved with the suit land. 94. According to RW - 1, the Ministry only deals with land situated within Mwakirunge I and II Settlement Schemes, whereas the Mwakirunge dumpsite is located outside those areas. He nevertheless informed the Court that the title to the dumpsite land is registered in the name of the County Government of Mombasa. With regard to the environmental issues raised, RW - 1 stated that the Ministry could not interfere with land designated for individual purposes, but could only recommend the implementation of mitigation measures to promote peaceful co existence. B). Cross-examination of the RW - 1 by Ms. Kisingo Advocate 95. On cross-examination by Ms. Kisingo, RW - 1 testified that his evidence related only to Mwakirunge I and II Settlement Schemes. C). Cross - examination of the RW - 1 by Mr. Ainea JUDGMENT ELCPET. E017 OF 2022 Page 62 of 192 HON. JUSTICE L.L. NAIKUNI

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96. On cross-examination by the Petitioner, RW - 1 testified that the Ministry was not directly involved in the subject matter before the Court concerns the County Government. However, he acknowledged that the Ministry had nonetheless been joined as a Respondent. He explained that Mwakirunge I and II Settlement Schemes are separate and distinct from the Mwakirunge dumpsite. RW1 further clarified that Mwakirunge II had already been surveyed and title deeds issued, whereas Mwakirunge I had not yet been adjudicated. 97. RW - 1 nevertheless admitted that the residents had settled in the area before it was converted into a dumpsite. He further admitted that the residents had established graveyards within the area. Referring to paragraph 8 of the 3rd Respondent's affidavit, RW - 1 testified that one of the recommendations for mitigating the problem was for the affected residents to either vacate the area or be relocated. He further stated that the Government had acquired Mwakirunge I and Mwakirunge II from private landowners. 98. RW - 1 was not cross-examined by Ms. Muyai for the 4th Respondent or by Ms. Wachanga for the 5th Respondent. D). Re - examination of 3rd RW - 1 by Ms. Waswa Advocate 99. Upon re - examination by Ms. Waswa, RW - 1 testified that the Land Department never manages dumpsites. XII. The case of 4th Respondent A). Examination – in - chief of RW - 2 by Ms. Muyai Advocate JUDGMENT ELCPET. E017 OF 2022 Page 63 of 192 HON. JUSTICE L.L. NAIKUNI

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100. On its part, the 4th Respondent called Samuel Ruto Kopokoyot, a holder of National Identity Card bearing all the particulars as shown to Court who testified under oath as RW - 2. RW - 2 informed the court that he was the NEMA County Director of Environment for Mombasa, for the period January, 2000 to October, 2024, although he was at the time of testifying stationed in Nairobi. He confirmed that he was familiar with the matter before the Court and adopted his affidavit dated 14th March, 2023, together with the documents annexed thereto, as his evidence in support of the 4th Respondent's case. With regard to the issuance of Environmental Impact Assessment (EIA) licences, RW2 testified that NEMA is responsible for environmental matters and its role is to ensure compliance with environmental laws. He explained that NEMA receives applications for EIA licences and considers them pursuant to Section 58 of EMCA. 101. RW - 2 confirmed that the Office of the Deputy Governor of the County Government of Mombasa submitted an application to NEMA for a proposed sanitary landfill for waste disposal by a letter dated 26th April, 2011. He testified that upon receipt of the application, NEMA did not issue an EIA licence due to objections arising from aviation concerns. According to RW - 2, NEMA communicated its decision through a letter dated 29th October, 2012, addressed to the Town Clerk of Mombasa, advising them to identify an alternative site because of the said aviation concerns, although those concerns were not environmental in nature. RW2 further testified that NEMA's role is policy-oriented and includes the licensing of waste disposal facilities and the provision of guidance on waste management. He added that NEMA has continuously engaged JUDGMENT ELCPET. E017 OF 2022 Page 64 of 192 HON. JUSTICE L.L. NAIKUNI

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stakeholders on environmental matters and created public awareness on the subject. B). Cross - examination by Ms. Wachanga Advocate 102. On cross-examination by Ms. Wachanga, RW - 2 reiterated that no EIA licence had ever been issued in respect of the Mwakirunge dumpsite. He testified that NEMA had taken enforcement action as outlined in its Replying Affidavit, particularly at page 86 thereof. 103. RW - 2 stated that despite the absence of a licence, the County Government proceeded to operate the dumpsite. He further testified that NEMA had issued the necessary notices, but that the County Government relocated the dumpsite from Kibarani to Mwakirunge and proceeded with its operations without NEMA's approval. C). Cross-examination of RW - 2 by Mr. Ng’ang’a Advocate 104. On cross - examination by Mr. Ng'ang'a, RW - 2 reiterated that following the objections to the proposed site, NEMA issued a Restoration Order but was unable to take further action as the dispute became the subject of the present Petition. He testified that the County Government responded through a letter dated 6th July, 2021, in which, at paragraph 3, it indicated that it had proceeded with waste disposal in good faith and in accordance with the Constitution. 105. RW - 2 stated that the County Government proposed mitigation measures, which NEMA found satisfactory. He further expressed the view that the principal challenge might have been the absence of a suitable alternative site and NEMA was concerned that closure of the dumpsite would result in public outcry. D). Cross - examination of RW - 2 by Mr. Ainea JUDGMENT ELCPET. E017 OF 2022 Page 65 of 192 HON. JUSTICE L.L. NAIKUNI

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106. On cross - examination by the Petitioner, RW - 2 testified that consultations had been undertaken with the relevant lead agencies in the aviation sector, including the KAA. He stated that NEMA thereafter issued a letter in October, 2012 advising the County Government to identify an alternative site, but that more than ten years later no relocation had taken place. RW - 2 reiterated that no EIA licence had ever been issued for the Mwakirunge dumpsite. He described the dumpsite as a high-risk facility and emphasized that an EIA licence was not a mere formality. He nevertheless explained that, in the circumstances of this case, NEMA had been guided by the principles of intergovernmental relations. RW - 2 further admitted that medical waste was being disposed of at the dumpsite and that such waste posed a hazard to human life. He also testified that although NEMA had established a mechanism for monitoring air pollution at Mwakirunge, the corresponding report had not been produced before the Court. 107. RW - 2 was referred to page 88 of his affidavit containing the Restoration Order, and he testified that, in his opinion, the County Government had not complied with the Order. He referred the Court to Sections 51(b) and 52 of EMCA, explaining that once NEMA issues an Environmental Restoration Order, it prescribes a period within which compliance is required, failing which further enforcement action may be taken depending on the complexity of the matter. 108. RW - 2 reiterated that NEMA had never issued an EIA licence for the dumpsite and had instead advised the County Government to relocate it. According to RW - 2, the dumpsite is illegal, although NEMA also had to take into account broader public interest considerations. He further JUDGMENT ELCPET. E017 OF 2022 Page 66 of 192 HON. JUSTICE L.L. NAIKUNI

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acknowledged that, according to the KAA, the dumpsite is not situated in an appropriate location. RW - 2 added that the Intergovernmental Relations framework provides for mitigation measures and that Order 5 contains specific proposals relating to aviation concerns. 109. RW - 2 was not cross-examined by Mr. Kemei for the 3rd Respondent or by Ms. Ondieki for the 6th Respondent. E). Re - examination of RW - 2 by Ms. Muyai Advocate 110. Upon re - examination by Ms. Muyai, RW - 2 testified that while sand filling may assist in managing the dumpsite, it would only reduce, and not eliminate, the high risks associated with its operation. He added that other waste management measures, such as incineration, are also available. XIII. The case of the 5th Respondent A. Examination – in - Chief of RW - 3 by Ms. Wachanga Advocate 111. The 5th Respondent called Abel Chigunda Gogo, holder of National Identity Card as shown to Court. He testified under oath as RW - 3 in support of the 5th Respondent's case. He stated that the Petitioner had accused KAA of failing to disclose certain information contrary to the provision Article 35 of the Constitution. According to RW - 3, however, matters relating to aviation and aviation pollution fall within the mandate of the KCAA. He further testified that KAA does not have any Memorandum of Understanding (MOU) with either the County Government or the Mwakirunge community in relation to the dumpsite. 112. RW - 3 testified that the dumpsite was initially located at Kibarani, but that when it was proposed to be relocated to Mwakirunge, the 5 th JUDGMENT ELCPET. E017 OF 2022 Page 67 of 192 HON. JUSTICE L.L. NAIKUNI

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Respondent was invited to a consultative meeting. He stated that KAA objected to the proposed relocation because the International Civil Aviation Organization (ICAO) guidelines, together with KAA's own standards, require wildlife hazard sites to be located at least 13 kilometres away from airport facilities. RW3 testified that the Mwakirunge dumpsite falls within that prohibited radius and expressed the view that it was appropriate that no EIA licence was ever issued in respect of the site. 113. RW - 3 explained that KAA communicated its objection to NEMA through letters dated 13th and 14th June, 2011, and that the objection was upheld. He testified that, following that decision, KAA had no further information on the matter. According to RW - 3, KAA never found it necessary to institute legal proceedings concerning the dumpsite because various mitigation measures had been put in place, enabling aviation operations to continue safely. He further testified that the only practical option currently available is mitigation and that KAA has continued to engage both the community and the County Government on appropriate mitigation measures. B. Cross - Examination of RW - 3 by Ms. Moyai Advocate 114. On cross - examination by Ms. Muyai, RW - 3 testified that KAA had communicated its concerns regarding the dumpsite, but that dumping activities nevertheless continued. He stated that KAA had continued to engage the relevant stakeholders on the matter. RW - 3 admitted, however, that KAA had not reported the matter to NEMA, notwithstanding the fact that NEMA is a member of the Airport Wildlife Committee. C). Cross - Examination of RW - 3 by Mr. Ng’ang’a Advocate JUDGMENT ELCPET. E017 OF 2022 Page 68 of 192 HON. JUSTICE L.L. NAIKUNI

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115. On cross-examination by Mr. Ng’ang’a, RW - 3 conceded that the current dumpsite poses a high risk to aviation because birds attracted to the site may interfere with aviation operations. He testified, however, that KAA was presently only able to implement minimal mitigation measures. D). Cross-Examination of RW - 3 by Mr. Ainea 116. On cross-examination by the Petitioner, RW - 3 was referred to the letter dated 8th December, 2021 addressed to KAA by the Mwakirunge Community. He testified that the letter did not seek information but rather sought clarification. RW - 3 explained that KAA did not possess the information sought, as the issues raised fell within KAA’s mandate and did not raise a security issue. He further testified that KAA had been engaging the community on mitigation measures and had held quarterly meetings, although he did not have the minutes of those meetings. 117. RW - 3 reiterated that the current dumpsite poses a high risk and ought to be relocated to another site. He also admitted that, at paragraph 13 of his affidavit, he had attributed responsibility to NEMA. According to RW 3, KAA’s mandate is limited to matters relating to airports, while issues falling outside that mandate are addressed by other Government agencies. 118. RW - 3 was not cross-examined by either Mr. Kemei for the 3rd Respondent or Ms. Ondieki for the 6th Respondent. XIV. The case by 1st and 2nd Respondents A. Examination-in-chief of RW - 4 by Mr. Ng’ang’a Advocate JUDGMENT ELCPET. E017 OF 2022 Page 69 of 192 HON. JUSTICE L.L. NAIKUNI

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119. The 1st and 2nd Respondents’ first witness, Hamir Ali Abdalla, testified under oath as RW - 4. He introduced himself as the Mombasa County Director of Education and stated that he had previously served briefly as the Chief Officer for Environment. RW4 testified that, while serving as the Chief Officer, he was tasked with addressing matters relating to the Mwakirunge dumpsite. 120. He explained that, at the time, there were concerns raised by KAA that the dumpsite was poorly located due to the presence of birds and animals, and that the 2nd Respondent undertook to improve the situation. According to RW - 4, one of the proposed solutions was the establishment of a sanitary landfill, whereby waste would be disposed of underground. He explained that the waste would be contained in underground cells with a ventilation system to prevent smoke from escaping, thereby reducing the presence of wildlife and animals around the dumpsite. 121. RW - 4 further testified that the County Government had also proposed to fence the entire dumpsite in order to prevent children and other members of the public from accessing the site. He explained that this was intended to restrict the movement of persons who entered the dumpsite to burn plastics and other materials, thereby generating smoke. RW - 4 informed the Court that the proposed sanitary landfill would have no adverse environmental effects apart from the financial cost of its implementation, although he acknowledged that the project could not be completed within a single financial year. He explained that implementation would require the existing waste to be cleared, the installation of extensive underground piping, and the planting of vegetation around the landfill to absorb waste gases. JUDGMENT ELCPET. E017 OF 2022 Page 70 of 192 HON. JUSTICE L.L. NAIKUNI

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122. RW - 4 testified that there was also a need to establish a strategic landfill committee together with appropriate management mechanisms, as the land had been occupied by other persons. He stated that meetings had been held with the landfill committee to explain the importance of the proposed project. According to RW - 4, those meetings involved neighbouring residents and landowners, and a survey exercise was undertaken, as evidenced by the photographs and minutes of the various meetings annexed to his affidavit. RW - 4 reiterated that the greatest challenge facing the project was financial constraints. He nevertheless testified that the County Government had already taken steps by hiring equipment to clear the dumpsite and that approximately half of the work had been completed during his tenure. 123. RW - 4 testified that, to demonstrate the County Government's commitment to the project, the relevant environmental offices had been involved. He explained that the proposed sanitary landfill was intended not only to rehabilitate the dumpsite but also to create employment opportunities. He further testified that solid waste would be recycled, while liquid waste would be processed for use as manure. 124. In conclusion, RW - 4 stated that several investors had expressed interest in the project and that its implementation would result in a cleaner environment, similar to what had been achieved in other areas. B). Cross - Examination of RW - 4 by Ms. Muyai Advocate 125. Upon cross - examination by Ms. Muyai, RW - 4 testified that he was not aware whether the Municipal Council had made an application to NEMA for an EIA Licence, as he was not serving in the relevant department at the time. RW - 4 was referred to the Environmental Restoration Order at JUDGMENT ELCPET. E017 OF 2022 Page 71 of 192 HON. JUSTICE L.L. NAIKUNI

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page 86 of NEMA's Replying Affidavit and confirmed that it was addressed to the County Secretary of the County Government of Mombasa. Further, he confirmed that page 87 of the Replying Affidavit contained various actions that the County Government was required to undertake. 126. However, RW - 4 stated that he was unable to confirm whether those actions had been implemented. He nevertheless testified that the County Government had consistently engaged NEMA, whose guidance had been helpful in relation to the proposed sanitary landfill. C). Cross Examination of RW - 4 by Ms. Wachanga Advocate: 127. On cross-examination by Ms. Wachanga, RW - 4 admitted that KAA had raised concerns that birds attracted to the dumpsite posed a risk to aviation by interfering with flight paths. However, RW - 4, testified that, in his view, the number of birds was not sufficient to interfere with aircraft operations. He stated that objections by KAA had prevented them from undertaking the proposed landfill project and plans for proper management of the dumpsite. RW - 4 stated that KAA had written only, one letter dated 14th June, 2011 opposing the dumpsite, but they were of the view that the birds would not go so high as to reach the aeroplanes. 128. RW - 4 further testified that the Mwakirunge dumpsite had been in existence since the year 2012, whereas the proposal to establish a sanitary landfill was only made in the year 2022. He confirmed that KAA had opposed the relocation of the dumpsite to Mwakirunge, but that the relocation nonetheless proceeded. RW - 4 also admitted that NEMA had never approved the dumpsite and that of the ten conditions issued by JUDGMENT ELCPET. E017 OF 2022 Page 72 of 192 HON. JUSTICE L.L. NAIKUNI

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NEMA, only some had been complied with. He further denied having held any meetings with KAA during his tenure. D). Cross Examination of RW - 4 by Ms. Ondieki Advocate 129. On cross - examination by Ms. Ondieki, RW - 4 testified that the County Government had made various proposals aimed at addressing the challenges associated with the dumpsite. However, he stated that at the material time, there were no budgetary allocations to facilitate the implementation of those proposals. E). Cross Examination of RW - 4 by Mr. Ainea 130. On cross - examination by the Petitioner, RW - 4 reiterated that the implementation of the proposed sanitary landfill project had faced opposition from persons conducting business at, and those residing around the dumpsite. He alleged that some of these individuals were armed with knives and had threatened County officers, thereby necessitating the involvement of the police to provide security. 131. RW - 4 was referred to the Court Order dated 28 th March, 2023, and testified that he was aware of the Court’s directive requiring the County Government to erect a temporary fence around the dumpsite. However, he admitted that no fence had been erected. RW - 4 explained that the County Government had commenced the process of putting up the temporary fence, but the funds allocated for that purpose were subsequently reallocated to other activities. With regard to the Court’s directions on the compaction of solid waste and the installation of fire JUDGMENT ELCPET. E017 OF 2022 Page 73 of 192 HON. JUSTICE L.L. NAIKUNI

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extinguishers, RW - 4 testified that implementation had also commenced and that the County Government had hired the necessary machinery. 132. RW - 4 testified that he was unaware that the County Government had allocated a sum of Kenya Shillings Two Million (Kshs. 200, 000, 000.00/) for the dumpsite project and equally did not know the specific activities to which the funds intended for the dumpsite had been reallocated. He reiterated that KAA had written a letter in year 2011 raising concerns about birds interfering with aviation operations and that KAA had never written any subsequent letter countermanding that position. RW4 further confirmed that the County Government has consistently made budgetary allocations for the dumpsite. 133. RW - 4 was referred to paragraph 20 of his affidavit, where it was stated that the smoke had been contained at the material time. He explained that the measures implemented were only temporary in nature. Regarding the issue of children and other members of the public accessing the dumpsite, RW - 4 testified that the County Government had worked with various stakeholders within the community to discourage such access because of the associated health hazards and other risks. Upon being referred to paragraph 6 of NEMA's affidavit, RW 4 acknowledged concerns regarding the possible presence of medical and industrial waste at the dumpsite. He maintained, however, that he had not seen any evidence or medical report confirming the presence of such waste. 134. RW - 4 was not cross-examined by Mr. Kemei for the 3rd Respondent. F). Re - Examination of RW - 4 by Mr. Ng’ang’a Advocate JUDGMENT ELCPET. E017 OF 2022 Page 74 of 192 HON. JUSTICE L.L. NAIKUNI

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135. Upon re - examination by Mr. Ng’ang’a, RW - 4 testified that where funds allocated for a particular project remain unutilized, the County Government may reallocate them to other priority projects, although funds would still be re-allocated for the original project. With regard to KAA's objections, RW - 4 testified that it was possible to erect a temporary fence during his tenure, although members of the public would remove it. He explained that constructing a permanent fence would require the erection of a perimeter wall around the entire 60-acre site, a project that would take approximately three to four ( 4 ) years to complete. RW - 4 further testified that the proposed sanitary landfill would comprise four disposal pits, thereby eliminating exposure to waste, preventing unauthorized access and open burning, and consequently eliminating smoke emissions. He added that the project would also include a recycling plant for the separation of plastics from other waste materials, as well as proper procedures for handling medical waste. RW 4 concluded by testifying that he did not personally attend the meetings held with the community and was therefore unable to identify those who attended, although he understood that all attendees were adults in possession of national identity cards. G). Examination – in - Chief of RW - 5 by Mr. Ng’ang’a Advocate 136. John Wambua Francis also testified under oath on behalf of the 2nd Respondent as RW - 5. He introduced himself as a County Physical Planning Officer. RW5 testified that he had sworn an affidavit dated 21st March, 2023 to explain the 1st Respondent's ownership of L.R. No. MN/II/10071, on which the Mwakirunge dumpsite is situated. He stated that several complaints had been raised regarding the dumpsite. JUDGMENT ELCPET. E017 OF 2022 Page 75 of 192 HON. JUSTICE L.L. NAIKUNI

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According to RW5, the land was originally Government land under the control of the National Government through the Ministry of Lands. He explained that the Municipal Council of Mombasa identified the land for use as a dumpsite and subsequently made a request to the Government for its allocation. 137. Following that request, a Part Development Plan (PDP) was prepared and submitted to the Ministry of Lands for approval and the issuance of a Letter of Allotment. RW - 5 testified that the PDP was approved, after which a survey of the land was undertaken. He informed the Court that, at the time of the survey, there were no people residing on the land. RW 5 further testified that the survey exercise was undertaken solely by the Government and that no stakeholders were involved. He explained that, following the approval of the PDP, the National Government issued a Letter of Allotment, there being no County Government at the time. Thereafter, a Certificate of Lease was issued by the National Government for the purposes of establishing a dumpsite. H). Cross - examination of RW - 5 by Ms. Muyai Advocate 138. When RW - 5 was cross - examined by Ms. Muyai, he testified that at the the land was allocated and the Certificate of Lease was issued to the Municipal Council, it was already intended that the land would be used as a dumpsite. He further testified that NEMA did not play any role in the allocation of the land. I). Cross - examination of RW - 5 by Mr. Kemei Advocate 139. On cross - examination by Mr. Kemei, RW - 5 testified that the survey of the land was undertaken by the Ministry of Lands and Physical Planning, and that the purpose of the survey had been declared. Although he did JUDGMENT ELCPET. E017 OF 2022 Page 76 of 192 HON. JUSTICE L.L. NAIKUNI

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not have any document to demonstrate the stated purpose of the survey, he explained that it was intended to determine the exact size and location of the land. 140. With regard to the proposed use of the land, RW - 5 testified that the issue was under the purview of planning, however, he did not have any documents showing the designated use of land by the planners. RW - 5 further testified that, at the material time, land use planning in Kenya, including the designation of land for landfills and dumpsites, fell within the mandate of the National Government through the Ministry of Lands. He explained that this position changed following the promulgation of the Constitution of Kenya, 2010, when the function was devolved to County Governments under the Fourth Schedule to the Constitution. J). Cross - examination of RW - 5 by Mr. Ainea 141. On cross-examination by the Petitioner, RW - 5 was referred to paragraph 5 of his Affidavit and reiterated that the land had been allocated to the Municipal Council of Mombasa for use as a dumpsite. He admitted that this was done without the involvement of NEMA. RW - 5 testified that he was unaware whether the Ministry of Lands could operate without consultation with other agencies of NEMA. He further stated that he did not have the planning brief or other planning documents relating to the area and could not recall when dumping activities commenced at Mwakirunge. RW - 5 also testified that he was unaware of the existence of any graveyards on the suit property. He explained that, by "suitable land," he meant land that was free from environmental degradation or other drawbacks. JUDGMENT ELCPET. E017 OF 2022 Page 77 of 192 HON. JUSTICE L.L. NAIKUNI

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142. RW - 5 was not cross-examined by Ms. Ondieki for the 6th Respondent or by Ms. Wachanga for the 5th Respondent. K). Re - examination of RW - 5 by Mr. Ng’ang’a Advocate 143. Upon re - examination by Mr. Ng’ang’a, RW - 5 testified that he did not know whether the Ministry of Lands and NEMA operated in isolation. To the best of his knowledge, at the material time, the Ministry of Lands had the legal mandate to allocate land for use as dumpsites upon receiving requests from local authorities. He testified that, in the present case, the Municipal Council of Mombasa identified the land and requested that it be allocated for use as a dumpsite. 144. RW - 5 stated that he was not aware whether NEMA had been involved in this matter. L). Examination – in - Chief of RW - 6 by Mr. Ng’ang’a Advocate 145. The 1st and 2nd Respondents then called Hamid Shehan, who testified under oath as RW - 6. He introduced himself as the Chief Officer for Environment and Solid Waste Management for the County Government of Mombasa, a position he had held since July, 2024. RW - 6 testified that the County Government had already commenced the construction of 250 to 300 metres of an earth-compacted wall to demarcate the boundary of the dumpsite. He further testified that, in the year 2025, the County Government commenced Phase II of the project, involving an additional 300 metres of the earth-compacted wall, and had also constructed an access road. RW - 6 stated that the County Government had stationed a bulldozer at the dumpsite to compact and push the waste with the aim of minimizing the heat emanating from the site. JUDGMENT ELCPET. E017 OF 2022 Page 78 of 192 HON. JUSTICE L.L. NAIKUNI

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146. RW - 6 testified that the County Government's future plans include the construction of a 430 - metre access road along the site. He further stated that the County Government had commissioned Material Recovery Facilities (MRFs) to facilitate the segregation of waste materials, including plastics, and had someone who would come and purchase the recovered materials. RW - 6 also testified that the County Government had engaged a private company to collect food and organic waste from Kongowea Market, thereby preventing such waste from being transported to the Mwakirunge dumpsite. In addition, he stated that the County Government had engaged the Japan International Cooperation Agency (JICA) as its technical adviser on waste management and that JICA was assisting in the development of a 15-year plan for Mombasa County. 147. According to RW - 6, JICA had also provided technical advice on the construction of the access road as well as other aspects. He further testified that, during the years 2024 - 2025 financial year, the County Government purchased four compactor trucks and twenty-seven motorcycles for purposes of waste collection and that they were confined to the Material Recovery Facilities. 148. RW - 6 testified that the County Government's objective was to improve the efficiency of waste collection. He further stated that public sensitization programmes had already commenced and that environmental committees had been established at the ward level to educate members of the public on waste segregation. According to RW 6, these measures would have the effect of reducing the volume of waste being disposed of at the Mwakirunge dumpsite. RW - 6 confirmed that he had sworn the affidavit dated 14th November, 2025, which he adopted as JUDGMENT ELCPET. E017 OF 2022 Page 79 of 192 HON. JUSTICE L.L. NAIKUNI

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his evidence in support of the 1 st and 2nd Respondents’ case. He concluded by testifying that the County Government had commenced the construction of the earth fence, excavation of trenches and the planting of trees around the dumpsite. However, he noted that some of the trees had been uprooted, prompting the County Government to deploy its inspectorate officers. M).Cross - examination of RW - 6 by Ms. Ondieki Advocate 149. RW - 6 was cross-examined by Ms. Ondieki for the 6 th Respondent and he testified that the County Government had made budgetary allocations, although he was unable to state with certainty whether he was referring specifically to the years 2024 - 2025 budget. N). Cross - examination of the RW - 6 by Ms. Wachanga Advocate 150. On cross-examination by Ms. Wachanga for the 5th Respondent, RW - 6 testified that the Deputy Governor had engaged the Kenya Airports Authority (KAA) regarding the activities at the dumpsite. He further stated that the current County Executive Committee Member (CEC) had since taken over the matter and would continue engaging KAA. O). Cross-examination of RW - 6 by Ms. Muyai Advocate 151. On cross - examination by Ms. Muyai for the 4th Respondent, RW - 6 was referred to Paragraph 24 of his affidavit and conceded that he had not annexed the letter referred to therein, although he stated that he could avail it if required. RW - 6 confirmed that the County Government obtains approval from NEMA for all its environmental initiatives, including the MRFs, and testified that it was working closely with NEMA on its future plans. He stated that he was not aware of the earlier application relating to the operation of the dumpsite. When referred to the issue of a flight JUDGMENT ELCPET. E017 OF 2022 Page 80 of 192 HON. JUSTICE L.L. NAIKUNI

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risk analysis, RW - 6 testified that he would need to confirm whether such an assessment had been undertaken. 152. Further, he stated that NEMA had consistently been involved in the process and referred to the construction of the access road, during which, according to him, they were accompanied by the NEMA Co ordinator, Mr. Lopoyiat. P). Cross - examination of RW - 6 by Mr. Aenea 153. On cross - examination by the Petitioner, RW - 6 acknowledged that much of his testimony related to the County Government's future plans for the dumpsite. He reiterated that the County Government had partnered with JICA in relation to the Material Recovery Facilities, the access road and motor vehicles. He admitted, however, that he had not annexed any documents relating to those developments, plans or meetings to his affidavit, although he stated that they could be produced if required. 154. With regard to the fencing of the dumpsite, RW - 6 acknowledged that the Court had issued an order on 28 th March, 2023 directing that the site be fenced. He conceded that approximately three years had elapsed without compliance but attributed the delay to Government procedures. 155. RW - 6 was referred to Paragraph 5 of his affidavit and testified that the County Government had experienced budgetary constraints, particularly before and after the COVID-19 pandemic, resulting in a financial deficit of approximately Kenya Shillings two Million (Kshs. 2, 000, 000/=). Upon being referred to Paragraph 22 of his affidavit, RW - 6 informed the Court that funds previously allocated for the project had been returned to the Consolidated Fund/Treasury. He explained that although budgets are JUDGMENT ELCPET. E017 OF 2022 Page 81 of 192 HON. JUSTICE L.L. NAIKUNI

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prepared, the County Government does not always receive the lump sums of the amounts allocated. When referred to Paragraph 8 of his affidavit, RW - 6 testified that during his last visit to Mwakirunge in July, 2025, the County Government had deployed two bulldozers and excavators to the site. He admitted, however, that he had not annexed any documentation relating thereto to his affidavit. 156. RW - 6 reiterated that the establishment of MRFs requires NEMA's approval. He testified that the County Government had written to NEMA seeking such approval and had been authorized to proceed with the implementation of the facilities, although he acknowledged that he had not annexed the relevant correspondence to his affidavit. RW - 6 further testified that he was not aware that a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000.00/=) had allegedly been allocated in the year 2018 - 2019 for the purchase of bulldozers, which was not done. RW - 6 explained that he was neither employed by nor serving the County Government at that time. He stated that the dumpsite occupies approximately 56 acres. RW - 6 further testified that the County Government has continued to engage the community in discouraging children and other residents from accessing the dumpsite. He added, however, that County personnel had been threatened by members of the community who had established homes within the area, forcing them to re - route. R). Re - examination of RW - 6 by Mr. Ng’ang’a Advocate 157. Upon re - examination by Mr. Ng’ang’a, RW - 6 reiterated that the dumpsite measures approximately 56 acres. He testified that effective JUDGMENT ELCPET. E017 OF 2022 Page 82 of 192 HON. JUSTICE L.L. NAIKUNI

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management of the site requires between 150 and 200 officers per shift, with even more personnel being required during the night. RW - 6 further reiterated that the County Government had written to NEMA seeking its advice and approval and maintained that the County Government had remained in constant communication with NEMA regarding all environmental initiatives undertaken at the site. He confirmed that a bulldozer, a grader and eight officers had been stationed at the entrance to the Mwakirunge dumpsite to provide services, enhance security and regulate access to the site. RW - 6 further testified that, in recent times, KAA had not written to the County Government regarding concerns over the flight path, which had initially been the Authority's concern. 158. Following the conclusion of RW - 6’s testimony, the 1 st and 2nd Respondents closed their case, thereby bringing the hearing to a close. XV. Submissions 159. At the close of the hearing, while in the presence of all parties, the Court directed that they all file their respective final written submissions in respect to the Petition. 160. Pursuant to that, all parties fully complied. The Honourable Court reserved to deliver its Judgement on notice. Eventually, it was delivered on 25th September, 2026 accordingly. A. The Written Submissions by the Petitioner 161. The Petitioner filed written submissions dated 8th January, 2026 in support of the Petition. The submissions commenced with a brief background to the Petition and a summary of the reliefs sought. The Petitioner thereafter addressed six principal issues, the first being JUDGMENT ELCPET. E017 OF 2022 Page 83 of 192 HON. JUSTICE L.L. NAIKUNI

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whether the Petition met the threshold for a constitutional petition. On this issue, the Petitioner relied on under the provision of Article 162(2)(a) of the Constitution and Section 13(2)(a) and (d) and (3) of the Environment and Land Court Act, which establish the jurisdiction of this Court. The Petitioner further submitted that the provision of Articles 22 and 258 of the Constitution embody the principle of public interest litigation by conferring broad standing upon persons seeking to enforce constitutional rights and freedoms and to uphold the Constitution. It was submitted that the Petition had particularised the alleged violations of Articles 27(1) and (2), 28, 40, 42, 43, 47(1) and (2), 50(1), 53 and 70 of the Constitution. Placing reliance onto the case of:- “Annarita Karimi Njeru – Versus - Republic (1976-1980) KLR”, the Petitioner submitted that the Petition had sufficiently demonstrated the manner in which the dumping of waste had affected the lives, livelihoods, health and environment of the residents. The Petitioner further relied on the provision of Article 70(3) of the Constitution and submitted that an applicant seeking redress for a violation of Article 42 need not demonstrate that another person has suffered loss or injury. On that basis, the Petitioner maintained that the Petition met the constitutional threshold. 162. On the alleged violations of the constitutional rights pleaded in the Petition, the Petitioner submitted that the residents of Mwakirunge were entitled, like all other citizens, to equal protection and benefit of the law under the provision of Article 27 of the Constitution and to the protection of their inherent dignity under Article 28. It was contended that the residents had not been afforded an opportunity to determine whether the JUDGMENT ELCPET. E017 OF 2022 Page 84 of 192 HON. JUSTICE L.L. NAIKUNI

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establishment and continued operation of the dumpsite would benefit them, and that their concerns had not been adequately taken into account. The Petitioner further submitted that the provision of Section 87 (5) of the Environmental Management and Co - ordination Act (EMCA) criminalised the transportation of waste to, or operation of, a waste disposal site without the requisite licence from NEMA. Further, the Petitioner averred that the provision of Article 24 of the African Charter on Human and Peoples’ Rights, which recognised the right of peoples to a generally satisfactory environment favourable to their development; Resolution 48/13 of the United Nations Human Rights Council, which recognised the right to a clean, healthy and sustainable environment; and Principle 1 of the Rio Declaration on Environment and Development, which affirmed the entitlement of human beings to a healthy and productive life in harmony with nature. 163. The Petitioner submitted that the alleged illegal dumping at Mwakirunge occasioned both substantive and procedural violations of environmental rights. With respect to substantive environmental rights, reliance was placed on Section 3 of EMCA and the principles therein, including “the Polluter Pays” principle, intergenerational equity, the precautionary principle, the prevention principle, public participation and access to justice for purposes of obtaining redress for environmental harm. The Petitioner contended that the 1st and 2nd Respondents were required to obtain the requisite waste disposal licence and that, in the absence thereof, the continued operation of the dumpsite was unlawful. It was further submitted that the establishment of the dumpsite required EIA License before dumping could lawfully be undertaken. The Petitioner JUDGMENT ELCPET. E017 OF 2022 Page 85 of 192 HON. JUSTICE L.L. NAIKUNI

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alleged that the 4th Respondent failed to take appropriate measures to protect the residents and their families from the effects of waste dumping and smoke emanating from the dumpsite. Reliance was placed on the Social Impact Assessment undertaken by Prof. Okeyo Benards and Dr. Amos Angira, both of whom testified as the Petitioner’s witnesses, which, according to the Petitioner, found that the dumpsite had no economic benefits and made various recommendations concerning its operation and management. 164. In support of the alleged environmental and health consequences of the dumpsite, the Petitioner cited the case of:- “Serac – Versus – Nigeria”, submitting that the court took note of the 2008 Report of the UN Special Rapporteur, to the effect that people living near dumpsites experience health problems relating to childbirth, miscarriages and stillbirths. The Petitioner also opined that the Commission found “inter alia” that the Respondent state had violated the provision of Article 16 of the African Charter by failing to prevent dumping of toxic waste, or ensuring that affected persons had access to quality healthcare. Reliance was further placed on Article 69 of the Constitution, which sets out the obligations of the State in respect of the environment. The Petitioner submitted that the Respondents had failed to clean and remediate the polluted site effectively and expeditiously, and urged the Court to find that such failure constituted a violation of the right to a clean and healthy environment. To buttress on this point, the Petitioner relied on the cases of:- “Republic – Versus - Minister for Transport & Communication & 5 Others Ex - Parte Waa Ship Garbage Collector & 15 Others (KLR) E&C (1) 561;, Waweru – Versus - Republic (KLR) E&L PP JUDGMENT ELCPET. E017 OF 2022 Page 86 of 192 HON. JUSTICE L.L. NAIKUNI

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677; “Martin Osano Rabera & Rabera & Another – Versus Municipal Council of Nakuru & 2 Others (2018) eKLR”, “Velasquez Rodriguez – Versus – Honduras” and “Guerra and Others – Versus – Italy”. 165. On the alleged procedural violations, the Petitioner argued that there had been a violation of the right of access to information, public participation and access to effective remedies. It was submitted that the failure by the Respondents to ensure the proper collection and disposal of waste resulted in waste being deposited within or in proximity to the residents’ homesteads, thereby interfering with their private lives, and that the Respondents failed to remedy the situation despite numerous complaints. The Petitioner further alleged a violation of the right to life guaranteed under the provision of Article 26 (1) and (3) of the Constitution. Reliance was placed on a report dated 5 th February, 2013 of the European Parliament concerning the effects of pollution arising from waste-management crises on human health and the potential consequences for future generations. The Petitioner also cited the case of:- “Locascia and Others – Versus - Italy, Application No. 35648/10”, Judgment delivered on 19th October, 2023, in support of the submission that the closure of a landfill never of itself, necessarily eliminate the environmental and health risks arising from waste already deposited there. 166. The Petitioner further alleged that the 1st and 2nd Respondents had failed to comply with orders issued by the Court on 28 th March, 2023, which they were said to have characterised as mere proposals. The Petitioner contended that the circumstances demonstrated a lack of commitment JUDGMENT ELCPET. E017 OF 2022 Page 87 of 192 HON. JUSTICE L.L. NAIKUNI

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by the said Respondents to comply with the Court’s directives concerning the management of the dumpsite. It was further submitted that the committee purportedly established to address the concerns surrounding the dumpsite had been constituted merely to hoodwink the Court that the 1st Respondent was taking steps to address the concerns raised. In support of the submissions concerning environmental governance, compliance with State obligations and remedies, the Petitioner relied on the cases of:- “Ligue Ivoirienne des Droits de L’homme (LIDHO) and Others – Versus - Republic of Cote d’Ivoire”, “Di Sarno – Versus - Italy, Application No. 30765/08 (10/01/2012)”;, “Kotov and Others – Versus - Russia, Application No. 6142/18 and 13 Others (11/10/2022)”;, “African Center for Human Rights and Governance (ACRAG) & 3 Others – Versus - Municipal Council of Naivasha”;, “Petition No. 50 of 2012 and Sammy Nyamweya & Others – Versus -Kenya Premier League & Others (2015) eKLR” respectively. 167. The second issue addressed by the Petitioner concerned the legal consequences of the involvement, or alleged failure to act, of lead agencies and other statutory bodies. The Petitioner submitted that the provision of Article 69 (1) of the Constitution imposed upon the State significant obligations concerning the protection and management of the environment, including the prevention and elimination of activities that cause environmental degradation. Reliance was placed on the Fourth Schedule to the Constitution, which assigns functions relating to air pollution control, refuse removal, refuse dumps and solid waste disposal to the county governments. The Petitioner further submitted that the 4 th, JUDGMENT ELCPET. E017 OF 2022 Page 88 of 192 HON. JUSTICE L.L. NAIKUNI

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5th and 6th Respondents had obligations extending to the protection of the environment for present and future generations. In particular, the 4 th Respondent, NEMA, was faulted for allegedly failing to anticipate, prevent and address environmental degradation arising from the operation of the dumpsite, contrary to the precautionary principle. The 5th Respondent, KAA, was alleged to have failed to take appropriate measures to address the risk of aviation accidents associated with birds attracted to the dumpsite. The 6th Respondent, the Auditor-General, was alleged to have failed to audit or otherwise account for the manner in which funds allocated for the Mwakirunge Dumpsite were utilised or allegedly redirected. 168. With respect to the continued operation of the dumpsite at its present location, the Petitioner submitted that various stakeholders and lead agencies, including KAA, were opposed to the continued dumping of waste at the site. The Petitioner further contended that approximately sixteen ( 16 ) graves belonging to relatives of residents were located within the dumpsite area and were now covered by heaps of waste. The Court was urged to take into account the cultural and social significance of the graves and the traditions of the affected community, and to order the relocation of the dumpsite in order to preserve the graves and protect the cultural rights of the affected families. 169. On the question of compensation, the Petitioner sought refuge from the case of:- “Action Centre (SERAC) & Another – Versus - Nigeria Communication 155/96 (the Serac or Ogoni Case)”, and submitted that the State may still be held responsibility for human rights violations arising from environmental harm where it fails to comply with or enforce JUDGMENT ELCPET. E017 OF 2022 Page 89 of 192 HON. JUSTICE L.L. NAIKUNI

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applicable environmental and waste-management laws. The Petitioner further relied on Sections 108 to 116 of EMCA and submitted that the absence of precise evidence quantifying the extent of environmental damage does not preclude an award of damages where a violation of constitutional rights has been established. It was contended that an award of compensation would vindicate the affected persons’ constitutional rights, provide an effective remedy for the breach and give effect to the polluter pays principle. Reliance was placed on Principle 15 of the Rio Declaration on Environment & Development, the provision of Section 3 (5) of EMCA and several cases:- “Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino - Uhuru Village in Mikindani, Changamwe Area, Mombasa) – Versus - National Environment Management Authority & 3 others (Petition E021 of 2023) [2024] KESC 75 (KLR) (6th December, 2024) (Judgment)”. 170. The Petitioner further submitted that the 1 st, 2nd and 4th Respondents were aware of the dumping of waste at Mwakirunge, and that the 1st and 2nd Respondents were responsible for the dumping as well as the collection of levies from private entities disposing of waste at the site. It was contended that evidence had been placed before the Court demonstrating harm to the environment and the health and livelihoods of the affected residents, including allegations of deaths and chronic illness. In support of the claim founded on the doctrine of strict liability, the Petitioner relied on the case of:- “Rylands – Versus - Fletcher (1868) LR 3 HL 330”, and “David M. Ndetei – Versus - Orbit Chemical Industries Limited [2014] KEHC 4354 (KLR)”, concerning the JUDGMENT ELCPET. E017 OF 2022 Page 90 of 192 HON. JUSTICE L.L. NAIKUNI

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concept of non-natural use of land. The Petitioner further relied on case of:- “M.C. Mehta – Versus - Union of India [1987] 1 SCC 395” for the proposition that activities which are inherently dangerous or hazardous may attract absolute liability for harm resulting therefrom. 171. On the issue of costs, the Petitioner relied on the provision of Section 27 of the Civil Procedure Act, Cap. 21 and submitted that the award of costs is discretionary. The Petitioner further invoked Article 3(1) of the Constitution, which imposes upon every person the obligation to respect, uphold and defend the Constitution, and reiterated that the right to a clean and healthy environment under Article 42 is a right applicable to all persons. In view of the circumstances of the Petition and the alleged challenges faced by the residents of Mwakirunge, the Petitioner urged the Court to award costs against the Respondents. Reliance was placed on the cases of:- “DGM – Versus - EWG, Petition No. E002 of 2021 [2021] eKLR”, and “Republic – Versus - Rosemary Wairimu Munene; “(Ex - Parte Applicant) – Versus - Ihururu Dairy Farmers Co - operative Society Ltd, Judicial Review Application No. 6 of 2004”. The Petitioner ultimately urged the Court to find that it had jurisdiction to grant the reliefs sought and to determine the Petition in the public interest and in accordance with the prayers sought. B. The Written Submissions by the 1st & 2nd Respondents’ 172. The 1st and 2nd Respondents filed written submissions dated 11 th February, 2026 through their Counsel, Thomas K. Ng’ang’a, of the Office of the County Attorney. Mr. Ng’ang’a Advocate submitted that, for a Petition to disclose a constitutional cause of action, it must satisfy the principles enunciated in the case of:- “Anarita Karimi Njeru – Versus JUDGMENT ELCPET. E017 OF 2022 Page 91 of 192 HON. JUSTICE L.L. NAIKUNI

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Republic (Supra)”. It was submitted that the Petitioner had alleged violations of the provision of Articles 27, 28, 40, 42, 47, 50, 53 and 57 of the Constitution. The Learned Counsel contended that the 1st and 2nd Respondents had not acted with impunity but had consistently engaged relevant stakeholders, convened public barazas and developed work plans aimed at upgrading the dumpsite. Reliance was placed on the “Waweru – Versus - Republic [2006] eKLR”, in which the High Court underscored the broad meaning to be accorded to the right to life and observed that development which threatens life cannot be regarded as sustainable. Counsel submitted that the decision demonstrates that environmental rights are enforceable, but that responsibility for environmental protection is shared among various actors and does not rest solely upon local authorities. 173. With respect to the allegation concerning the alleged misappropriation of a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000.00/=) allocated for a bulldozer, a sum of Kenya Shillings One Hundred Million (Kshs. 100, 000, 000.00/=) for fencing and a sum of Kenya Shillings Two Hundred Million (Kshs. 200, 000,000.00/=) for waste management, the Learned Counsel submitted that the 1st and 2nd Respondents had explained that the funds were redirected to other development projects owing to practical constraints, including the inability of the County Government to meet suppliers’ demands for upfront payment. It was further submitted that the proposed fencing of the dumpsite had encountered opposition from stakeholders, particularly the Kenya Airports Authority, on account of aviation safety concerns. Counsel maintained that the reallocation of the funds did not amount to misappropriation but constituted a lawful JUDGMENT ELCPET. E017 OF 2022 Page 92 of 192 HON. JUSTICE L.L. NAIKUNI

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reallocation necessitated by budgetary and practical considerations. The Learned Counsel placed on the case of:- “Martin Osano Rabera & Another – Versus - Municipal Council of Nakuru & 2 Others (Supra)”, which the Learned Counsel cited in support of the proposition that environmental obligations must be considered alongside available resources and competing practical considerations, and that failure to implement a particular environmental measure does not, without more, establish misappropriation of public funds. 174. On the allegation that the dumpsite was being operated without the requisite statutory approvals, Counsel submitted that, notwithstanding the Petitioner’s assertion that the dumpsite was operating unlawfully without a licence from NEMA, the 1st and 2nd Respondents had demonstrated that NEMA had been involved in ongoing consultations and had participated in meetings concerning the establishment of landfill management committees. The Learned Counsel contended that such engagement demonstrated compliance and an effort towards regularisation rather than illegality. He placed reliance on “Republic – Versus - Minister for Transport & Communication & Another Ex Parte Waa Ship Garbage Collector & 15 Others [2006] eKLR”, which the Learned Counsel cited in support of NEMA’s mandate to coordinate environmental management. The Learned Counsel further submitted that the 1st and 2nd Respondents had demonstrated good faith and undertaken concrete measures towards the improvement of the dumpsite, as evidenced by their status reports and affidavits. The Learned Counsel claimed that these measures included surveys and identification JUDGMENT ELCPET. E017 OF 2022 of the dumpsite Page 93 of 192 boundaries; construction of HON. JUSTICE L.L. NAIKUNI soil

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embankments; construction of murram roads within the dumpsite and along the access road; engagement with residents, chiefs, the Member of County Assembly and NEMA towards the establishment of landfill management committees; and collaborations aimed at transforming the dumpsite into a sanitary landfill over a period of five years. 175. The Learned Counsel submitted that the measures undertaken by the 1 st and 2nd Respondents demonstrated their efforts to improve the management of the dumpsite and to ensure that residents of the area enjoy the right to a clean and healthy environment guaranteed by the Constitution. Reliance was placed on the provision of Articles 42, 69 and 70 of the Constitution and Sections 3, 9 and 87 to 88 of EMCA. Counsel further relied on the case of:- “NEMA & Another – Versus - KM (Minors suing through their mother and next friend SKS) & 17 Others [2011] eKLR”, which the Learned Counsel cited in support of the proposition that environmental protection entailed shared responsibility between State and non-State actors. It was submitted that the 1st and 2nd Respondents had acted within the applicable constitutional and statutory framework and that any deficiencies in the management of the dumpsite were attributable to historical challenges and opposition from stakeholders, rather than deliberate violations of the law. The Learned Counsel maintained that the 1st and 2nd Respondents had taken deliberate steps to address those challenges. 176. The Learned Counsel further relied on the case of:- “SERAC – Versus Nigeria (Supra)”, in which the African Commission on Human and Peoples’ Rights found Nigeria in violation of Articles 2, 4, 14, 16, 18 (1), 21 and 24 of the African Charter for failing to protect the Ogoni people JUDGMENT ELCPET. E017 OF 2022 Page 94 of 192 HON. JUSTICE L.L. NAIKUNI

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from environmental pollution arising from oil exploration activities. Counsel submitted that the decision affirmed the obligation of States to take reasonable measures to prevent pollution and ecological degradation, promote conservation and secure sustainable development. The Learned Counsel also cited the case of:- “Di Sarno – Versus - Italy, Application No. 30765/08”, Judgment delivered on 10th January, 2012, which Counsel cited in support of the proposition that prolonged failures in waste management may interfere with the right to private and family life under Article 8 of the European Convention on Human Rights, and that States was required to take effective measures to ensure that waste disposal systems operate properly. Finally, the Learned Counsel relied on the case of:- “M.C. Mehta – Versus - Union of India [Supra]”, in which the Supreme Court of India articulated the principle of absolute liability in respect of inherently hazardous activities and the obligation of persons engaged in such activities to ensure that they do not cause harm to the community. C. The Written Submissions by the 3rd Respondent 177. The 1st, 2nd and 3rd Respondents filed joint written submissions dated 20 th February, 2026 through the Honourable Attorney-General. On the alleged violation of the right of access to information under Article 35 of the Constitution, the Attorney-General submitted that the applicable mechanisms for obtaining information relating to land are provided under Sections 10 and 34 of the Land Registration Act, 2012 and Regulation 86 of the Land Registration (General) Regulations, 2017. 178. The Counsel submitted that those provisions permit a person to access the land register and conduct an official search in respect of a parcel of JUDGMENT ELCPET. E017 OF 2022 Page 95 of 192 HON. JUSTICE L.L. NAIKUNI

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land. It was therefore contended that the information sought by the Petitioner could have been obtained through an official search conducted in accordance with the prescribed procedure. Counsel further submitted that where the Petitioner sought certified copies of documents, cadastral maps or plans held in the land registry, he was required to make the requisite formal application and pay the prescribed fees. The AttorneyGeneral consequently contended that the Petitioner could not circumvent the statutory mechanisms for accessing land information and thereafter allege a violation of the constitutional right of access to information. Reliance was placed on the case of: “Maiyebei – Versus - Chesebe, Environment and Land Appeal No. E022 of 2023 [2025] KEELC 5294 (KLR)”. 179. On the alleged constitutional violations attributed to the 3rd Respondent, the Attorney-General submitted that the Petitioner had failed to plead the alleged violations with the requisite degree of precision as required by the principles enunciated in the locus classicus decision of “Anarita Karimi Njeru – Versus - Republic (Supra)”. The Learned Counsel further relied on the provision of Section 107 of the Evidence Act, Cap. 80, and submitted that the burden of proving the allegations rested upon the person who asserted them. It was contended that the Petitioner bore the obligation of establishing, by evidence, the specific claims made against the 3rd Respondent. 180. The Learned Counsel averred that the Petitioner had neither adequately particularised the alleged violations nor led sufficient evidence at the trial to discharge that burden. The Counsel cited the case of:- “Consumer Federation of Kenya – Versus - Toyota Motors Corporation & 4 JUDGMENT ELCPET. E017 OF 2022 Page 96 of 192 HON. JUSTICE L.L. NAIKUNI

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Others, Petition No. 455 of 2018 [2022] KEHC 15459 (KLR)”. On that basis, the Attorney-General urged the Court to strike out and/or dismiss the Petition as against the 3rd Respondent, with costs. D. The Written Submissions by the 4th Respondent 181. The 4th Respondent, through its Learned Counsel, Ms. Josephine A. Muyai, filed written submissions dated 23rd March, 2026. M/s. Muyai Advocate identified three (3) issues for determination, namely, the duties of the 4 th Respondent in relation to waste management; whether the 4 th Respondent had been indolent in the discharge of its mandate; and whether the reliefs sought by the Petitioner could properly issue against the 4th Respondent. The Learned Counsel acknowledged that the 4 th Respondent had a duty to ensure the protection of a clean and healthy environment. It was further submitted that, pursuant to Article 69(1) of the Constitution and Sections 9(1) and (2) of EMCA, the 4 th Respondent exercised general supervision and co - ordination over all matters relating to the environment. The Learned Counsel submitted that the scope of these duties had been recognised in various decisions, including the case of:-“Republic – Versus - NEMA & Another Ex - Parte Philip Kisia & City Council of Nairobi (2016) eKLR”;, “Martin Osano Rabera & another – Versus - Municipal Council of Nakuru & 2 others (Supra)”, “Republic – Versus - NEMA & Another Ex parte Philip Kisia & City Council of Nairobi (2016) eKLR” and “Obuli & 2 others – Versus - National Environment Management Authority & 3 others (Environment and Land Petition E018 of 2024) [2026] KEELC 1103 (KLR)”. JUDGMENT ELCPET. E017 OF 2022 Page 97 of 192 HON. JUSTICE L.L. NAIKUNI

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182. On the specific role of the 4th Respondent in waste management. The Learned Counsel submitted that its mandate includes the issuance of licences for the operation of waste disposal sites and treatment plants, licences for the transportation of waste, and permits for the export of waste, as provided for under EMCA and the applicable Waste Management Regulations. Counsel further submitted that, in the exercise of its general supervisory and coordinating mandate, the 4 th Respondent was required to assist and guide lead agencies in the preservation and protection of the environment and to assist county governments in developing policies and strategies for addressing the persistent challenges associated with urban waste disposal and management. 183. The Learned Counsel asserted that in discharge of its statutory mandate, the 4th Respondent had put in place laws, policies and strategies aimed at promoting sustainable waste management. It was submitted that pursuant to the provision of Sections 86 and 147 of EMCA, the Waste Management Regulations, 2024 were gazetted to inter alia regulate the handling, storage, transportation, segregation and disposal of waste. The Learned Counsel contended that the Petitioner had not demonstrated that the 4th Respondent failed to undertake its supervisory, co ordinating and advisory functions in relation to waste management. The Court was invited to consider the contents of the 4 th Respondent’s Replying Affidavit, which acknowledged receipt of the complaints made by the Petitioner and outlined the measures taken in response, including the issuance of a restoration order and the development of the ten minimum requirements for implementation by county governments. JUDGMENT ELCPET. E017 OF 2022 Page 98 of 192 HON. JUSTICE L.L. NAIKUNI

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184. With respect to the allegation that the 4 th Respondent failed to seek the Court’s intervention and/or institute proceedings against the 1st Respondent for operating an allegedly unlicensed dumpsite pursuant to Section 90 of EMCA, the Learned Counsel submitted that the provision was not couched in mandatory terms and that the 4 th Respondent was entitled to employ alternative measures to secure compliance, including the issuance of restoration orders. Counsel further relied on the Intergovernmental Relations Act and submitted that the statutory framework governing intergovernmental relations emphasises cooperation between the two levels of government and the avoidance and minimisation of intergovernmental disputes. In the circumstances, Counsel contended that the 4th Respondent could not be faulted for not invoking Section 90 of EMCA where it had elected to pursue other measures aimed at securing compliance. 185. The Learned Counsel averred that the 4th Respondent had issued restoration orders to the 1st and 2nd Respondents and that there was evidence of ongoing collaborative efforts concerning the management of the dumpsite. The Court was further urged to take into account the mitigation measures undertaken by the 1st and 2nd Respondents, their stated willingness to comply with the restoration orders and the ongoing engagements between the 1st, 2nd and 4th Respondents concerning the management of the dumpsite. Counsel consequently urged the Court to find that the 4th Respondent had neither been indolent in the discharge of its statutory mandate nor complicit in the activities and violations alleged by the Petitioner. JUDGMENT ELCPET. E017 OF 2022 Page 99 of 192 HON. JUSTICE L.L. NAIKUNI

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186. On the allegation that the 1st, 2nd and 4th Respondents had failed to clean up the polluted site. The Learned Counsel submitted that the contention was misconceived as against the 4 th Respondent, whose statutory mandate never extended to the physical cleaning or remediation of dumpsites, that function being principally assigned to county governments. The Learned Counsel cited the case of:- “Gichu – Versus Obuya Otieno Ritzau t/a Bamburi Community High School & 3 Others [2023] KEELC 19222 (KLR)”, which the Counsel cited in support of the proposition that, consistent with the constitutional division of functions, one level of government ought not to interfere with the mandate of another unless the latter was unable to discharge its assigned functions. Counsel submitted that there was no evidence that the 1st Respondent had indicated that it was unable to discharge its mandate in relation to the management of the dumpsite. 187. On the issue of licensing. The Learned Counsel submitted that the now defunct Ministry of Local Government had submitted an Environmental Impact Assessment Study for the proposed Mwakirunge Sanitary Landfill in the year 2011. However, it was submitted that an EIA licence was not issued for the reasons set out in paragraph 19 of the 4 th Respondent’s Replying Affidavit and in the correspondence annexed thereto marked as “SL - 12(a)” and “SL - 12(b)”. The Learned Counsel emphasised that the application for the EIA licence was rejected on account of issues relating to the location of the proposed site and not because of concerns regarding environmental impacts. JUDGMENT ELCPET. E017 OF 2022 Page 100 of 192 HON. JUSTICE L.L. NAIKUNI

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188. In light of the foregoing, the Learned Counsel submitted that the reliefs sought in the Petition could not properly issue against the 4 th Respondent and urged the Court to dismiss the Petition as against it, with costs. E. The Written Submission by the 5th Respondent 189. The 5th Respondent filed written submissions dated 19 th February, 2026 through the Law firm of Messrs. J.M. Njenga & Co. Advocates LLP. M/s. Wachanga Advocate commenced the submissions by stating that the Petition disclosed no constitutional cause of action against the 5 th Respondent and that the matters raised by the Petitioner are principally directed at the 1st to 4th Respondents. The Learned Counsel submitted that the only specific allegation made against the 5 th Respondent concerned an alleged violation of the right of access to information under the provision of Article 35 of the Constitution and the Access to Information Act, which allegation was denied. While acknowledging that the right of access to information is a fundamental constitutional right, the Learned Counsel submitted that, for a claim founded on its violation to be justiciable, an applicant must demonstrate that the information was sought and that access thereto was denied. 190. The Learned Counsel contended that the Petitioner had not in fact sought information from the 5th Respondent, but had instead, by his letter dated 8th December, 2021 sought certain clarifications. It was submitted that the Petitioner already possessed the relevant information, having obtained it from the 4th Respondent, and that the information was therefore reasonably accessible through other means. The Learned Counsel consequently maintained that the 5th Respondent had not denied the Petitioner access to any information. JUDGMENT ELCPET. E017 OF 2022 Page 101 of 192 HON. JUSTICE L.L. NAIKUNI

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191. The Learned Counsel further submitted that the 5th Respondent was under no obligation to provide the clarification sought, particularly as the matters raised therein were between the 5 th Respondent and third parties. In any event, Counsel contended that the Petitioner was already aware of the 5th Respondent’s position regarding the dumpsite. It was further submitted that the 5th Respondent had no role in the alleged environmental degradation, eviction of families or alleged misappropriation of funds relating to the dumpsite. Counsel maintained that, as a stakeholder, the 5th Respondent had discharged its obligation by communicating its objections and raising its concerns with the relevant authorities for appropriate action. 192. The Learned Counsel submitted that the responsibility for ensuring that the dumpsite was not operated without the requisite licence lay with the 4th Respondent, including, where necessary, taking appropriate legal measures to restrain the activities complained of. The Counsel further pointed out that the 4th Respondent had not, to date, issued a licence for the operation of the dumpsite and submitted that, in the circumstances, the 4th Respondent had taken the steps reasonably expected of it. Counsel denied any violation of the rights of the residents of Mwakirunge attributable to the 5th Respondent and urged the Court to dismiss the Petition as against it, with costs. F. The Written Submissions by the 6th Respondent 193. On behalf of the 6th Respondent, written submissions dated 11th February, 2026 were filed by it’s the Learned Counsel, Ms. Milcah Aloo Ondiek. The Learned Counsel submitted that the 6th Respondent had no mandate in JUDGMENT ELCPET. E017 OF 2022 Page 102 of 192 HON. JUSTICE L.L. NAIKUNI

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relation to the management of the environment at county level and could not, therefore, be held responsible for acts or omissions attributable to county accounting officers or county executives. 194. The Learned Counsel further submitted that the Petitioner had failed to establish any cause of action, factual basis or constitutional violation against the 6th Respondent. It was submitted that the constitutional mandate of the 6th Respondent was set out under the provision of Article 229 of the Constitution and was considered in the case of:- “Ondago – Versus - Natembeya & 15 Others”; “Auditor - General & Another (Interested Party), Constitutional Petition No. E003 of 2023 [2023] eKLR”. The Learned Counsel submitted that the functions of the 6th Respondent were principally confined to auditing and expressing an opinion on public accounts, reporting on the use of public funds and recommending corrective action. The Learned Counsel contended that the 6th Respondent had no power to direct how public funds are to be utilised, prevent the misuse of such funds, enforce compliance or undertake corrective environmental or administrative measures. 195. On that basis, the Learned Counsel submitted that no liability could attach to the 6th Respondent for the alleged environmental degradation, improper expenditure of public funds or failure to implement recommendations contained in the audit reports. The Learned Counsel further contended that the Petition did not satisfy the constitutional threshold enunciated in “Anarita Karimi Njeru v Republic (Supra)” and reiterated in “Mumo Matemo – Versus - Trusted Society of Human Rights Alliance & 5 Others (Supra)” and “Ntongai – Versus - Kaberia & 3 Others, Constitutional Petition No. 3 of 2019 [2023] JUDGMENT ELCPET. E017 OF 2022 Page 103 of 192 HON. JUSTICE L.L. NAIKUNI

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KEHC 508 (KLR)”. It was submitted that the Petitioner had not demonstrated any failure by the 6th Respondent to discharge its constitutional and statutory audit mandate and could not, merely from the alleged failures of the 1st Respondent, infer an abdication of duty on the part of the 6th Respondent. 196. The Learned Counsel further submitted that the Petitioner had failed to establish any nexus between the constitutional and statutory functions of the 6th Respondent and the violations alleged in the Petition. It was consequently contended that the reliefs sought fell outside the remit of the 6th Respondent. 197. The Learned Counsel urged the Court to dismiss the Petition as against the 6th Respondent, with costs. XVII. Analysis and Determination 198. I have carefully considered all the filed pleadings pertaining to the Petition dated 9th May, 2022 alongside the Affidavits filed in support by the Petitioner thereof, the responses by the Respondents, the witness testimonies and evidence adduced in this court as well as the written submissions by the Parties, the myriad of authorities cited therein and the appropriate provisions of the Constitution and the statutes. 199. Consequently, in order to arrive at the reasonable, fair, Equitable and informed decision, this Honourable Court has condensed the matter into the following five (5) salient issues for its determination: (a) Whether the present Constitution Petition by the Petitioner dated 9th May, 2022 meets the threshold for Constitution Petition. (b) Whether the Respondents violated the provisions relating to a clean and healthy environment; JUDGMENT ELCPET. E017 OF 2022 Page 104 of 192 HON. JUSTICE L.L. NAIKUNI

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(c) Whether the Respondents’ actions amounted to an infringement of the Petitioner’s Constitutional and statutory rights; (d) Whether the Petitioner is entitled to the reliefs sought on the present Petition; (e) What are the Mitigatory measures and Remedies that the Court should provide for ensuring human safety to clean & health environment and proper environmental management and preservation whatsoever. (f) Who will bear the Cost of the Petition? ISSUE No. (a). Whether the present Constitution Petition dated………..by the Petitioner meets the threshold for Constitution Petition The Site Visit Report 200. Before embarking on the analysis of the sub – heading, the Honourable Court shall provide a report of the site visit conducted by it. REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MOMBASA ELC PETITION NO. 017 OF 2022. A SITE VISIT (“Locus in Quo”) REPORT ON THE MWAKIRUNGE DUMPSITE HELD ON 30TH SEPTEMBER, 2022 I. Preliminaries 1. The site was located at a place called Mwakirunge within the Constituency of Kisauni, past the Kiambeni area of the County of Mombasa. It is approximately 20 Kilometers from the main Mombasa Business District Centre (CBD). 2. Upon arrival at the site at 12:30 pm, the Honorable Court formally called the session to order. There was an opening prayer then followed by a JUDGMENT ELCPET. E017 OF 2022 Page 105 of 192 HON. JUSTICE L.L. NAIKUNI

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brief introduction of the team and the security operatives. All the parties present introduced themselves as follows:a) The Environment & Land Court (ELC) i. Justice LL Naikuni – ELC No. 3, Mombasa. ii. M/s. Yumna Jilo – the Court Assistant. iii. Mr. Leonard – Judge’s Personal Security/Usher. iv. Mr. John Ngari – Judge’s Driver. b) Petitioner. i. Mr. Ainea Ragen. c) County Government of Mombasa i. M/s. Kisingo Elizabeth – Advocate, the County of Mombasa. ii. Dr. Mwajuma - Chief Officer Lands. iii. Mr. Mwanyala - Planning Officer. iv. Mr. John Mwalua - Department of Physical Planning. v. Mr. Gilbert Nderitu - Land Surveyor. vi. Mr. Amar Juma - Department of Solid Waste Management. vii. Mr. Sala – Officer in Charge of Climate Change. d) National Environment Management Authority (NEMA) i. Mr. Kennedy Njau. ii. M/s. Josephine Muyae – Advocate, NEMA. e) The Hon. Attorney General i. Mr. Paul Wagah - State Counsel. f) Auditor General i. M/s. Milka Ondieki – Advocate. (Hereinafter referred to as “The Team”). g). The Security Operatives – All from Ki…..police station JUDGMENT ELCPET. E017 OF 2022 Page 106 of 192 HON. JUSTICE L.L. NAIKUNI

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I. The purpose for the Site Visit 3. The Court informed the team the purpose of the site visit (“Locus in Quo”). It indicated that this was pursuant to a Court order in accordance with the provision of Section 173 of the Evidence Act, Cap. 80; Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010. The provisions of Order 18 Rule 11 of Civil Procedure Rules, to wit: Power to court to inspect; “The court may at any stage of a suit inspect any property or thing concerning which any question may arise” While Order 40 Rule 10 (1) (a) provided to wit: “The Court may, on the application if any party to a suit, and on such terms as it thinks fit: 4. Make an order for ….………Inspection of any property which is the subject matter to which any question may arise therein. 5. It was stated that pursuant to a court directive during diverse dates of the court proceedings in view of the several activities reported to be taking place on the suit property particularly the dumping, the burning of the solid & liquid wastes obtained from various places within the Mombasa township, the livelihood of the residents and community around the dumpsite, it was imperative to conduct the site visit. 6. The Judge elucidated that the site visit was not with a view of gathering further evidence on the case but to make observation on the factual realities on the ground to enable the Court in making a fair, just and equitable decision. Ideally, the Honorable Court informed the team that the visit was purely to look, feel and observe on the issues brought in Court while inspecting the place. 7. Hence, Court explained to the parties that the purpose was not to adduce fresh evidence nor venture onto the veracity of the evidence already adduced this cross examination, fill in gaps the parties evidence but JUDGMENT ELCPET. E017 OF 2022 Page 107 of 192 HON. JUSTICE L.L. NAIKUNI

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purely to check and confirm the evidence lest the court runs into the risk of turning itself a witness in the case. A visit is an exception rather than the rule. 8. Parties were advised to sustain high dignity, decorum and decency during the visit. It would be a team work driven process. While recording of the proceedings using electronic devices or manual writing would be allowed, photography or video shooting was strongly condemned due to the likely hood of being abused particularly through social media. The report has endeavored to make some salient findings and perhaps make recommendations in order to expedite the hearing and final determination of the case. II. The Procedure for conducting the Site Visit 9. The procedure upon which the site visit was to be conducted was explained to the team present. By consensus of the parties, it was agreed that Site Visit be led by the the County land Surveyor and the Petitioner. Members of the team would be free to provide any suggestions or guidance on how to proceed whatsoever. The team, led by the court would be primarily observing the activities in the dumpsite and surrounding areas, verifying whether there were people living at the actual dumpsite, and further analyzing the living conditions of those in the surrounding areas. Subsequently, the team conducted an intense physical inspection of the dumpsite by walking around it. 10. Mr. Nderitu, the Land Surveyor took the team through the site as guided by the map of the area. He stated that the dumpsite is sitting on land known as Plot No. North/Section II/10071 measuring approximately 50 acres and registered in the name of the Municipal Government of Mombasa under a lease from the government. III. The Observation The team made the following observations:JUDGMENT ELCPET. E017 OF 2022 Page 108 of 192 HON. JUSTICE L.L. NAIKUNI

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 The Location:- The Dump – site has had a long historical background entailing frequent movement from one pace to the other caused by various social, economic and political circumstances.  Initially, it had been located at a place called Kibarani on the way to the Moi International Airport, Mombasa. Eventually, it was moved to some fields adjacent to the Voice of Kenya, Mombasa near Bombolulu and then now at the current place Mwakiruge.  The dumpsite was sitting on land known as Plot No. North/Section II/10071 measuring approximately 50 acres and registered in the name of the Municipal Government of Mombasa under a lease from the government.  The Mtwapa Creek:- It was observed that the garbage was being moved from one point to an area towards Mtwapa creek. The Petitioner, Mr. Ragen mentioned that Marine life could be affected. He also stated that the garbage had covered several graveyards, that the water tank serving the community, the residents, and those making a living out of the dumpsite are being affected by the garbage, and smoke from burning the garbage also affects the residents.  The relocation of the Dump – site:- Mr. Ragen suggested that the possible alternative for the residents is for the County Government of Mombasa to relocate the dump site.  The poor health condition:- Two adult men and three adult women were given an opportunity to address the court. They all mentioned the adverse health effects, the increasing insecurity in the area, and social issues such as graveyards being covered, and children dropping out of school to work in the dumpsite that have been directly caused by the dump site. Two pupils from neighboring schools also addressed the courts. They stated that they walk through the dumpsite daily to get to school. JUDGMENT ELCPET. E017 OF 2022 Page 109 of 192 HON. JUSTICE L.L. NAIKUNI

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 The General Observations:- Additionally, the team made the following observations: i. Garbage littered on the way to the dumpsite (approximately 3km before reaching the dumpsite). There was no register or any form of information of the vehicles and people driving into and from the dumping site. ii. The dump – site was not well planned at all. The team noticed that the garbage was never sorted at all in a professional and technical manner. Hence, the garbage was loosely dumped in haphazard manner – solid (plastics, water and soft drink bottles, polythene papers, human waste from both baby and adult diapers; non degradable (non – biodegradable) materials etc); un processed organic & inorganic, decomposed and liquid wastes and so forth. iii. Although the County Government of Mombasa has constructed a small structure at the front side entrance of the site used by a few lax guards, there was no control at all on the movement to and from the dumping site. The site is not fenced at all. It was free for all. iv. The few County of Mombasa personnel (less than five in number) who were stationed at the site appeared extremely bored and full of lethargy. They were completely demotivated working at the place. v. There were several families – adults and children - and residents living within and by the sides of the dumping site. They all depended on the products dumped at the site. They conducted business such as collection and collating of the garbage mainly plastics, metal bars etc for re – cycling. Others were involved in such activities such as local cinema productions, food Vendors etc vi. The court & team entered a house infested with flies. On the food and on the sleeping area. They lived in extremely dilapidated and deplorable environmental conditions surpassing human rights and other fundamental conditions as stipulated under the Bill of Rights particularly the provision of Article 43 of the Constitution of Kenya, 2010. vii. The team was shown what appeared to be un – marked graveyards by the sides of the dump – site. On counting they were close to 10 of them. The team learnt that among the Giriama community they never marked the burial sites. JUDGMENT ELCPET. E017 OF 2022 Page 110 of 192 HON. JUSTICE L.L. NAIKUNI

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viii. There was heavy smoke spread out the whole of the dumpsite. It was choking as it never seemed to disappear. We guessed because of the burning of wet organic wastes. It was such an irritant and pollutant nuisance which was likely to cause health hazardness to the community around the place. ix. The team learnt that the there were many school gong children who passed through the dump – site. As result, a lot of social atrocities took place at the place. These included rape, theft and other related criminal activities. x. An aircraft flying above the land. xi. Birds feeding off the garbage. xii. Numerous flies infested the site. xiii. The garbage was around a water tank that was situated on the adjacent plot. xiv. The court and team interacted with several people who stated that they have lived in the land before even the dumpsite was relocated to Mwakirunge. IV.  The Conclusion At the conclusion of the visit, the court thanked all those who attended the site visit.  It was agreed that the matter would proceed for hearing on 27 th October 2022 and parties were at liberty to file supplementary statements.  There being no other business, the site visit was concluded at 2:00 pm with a word of prayer. SITE VISIT REPORT PREPARED AND SHARED THROUGH MICRO – SOFT TEAMS AT MOMBASA THIS ……..12TH …….DAY OF……….FEBRUARY……… 2026 ………………………….. HON. MR. JUSTICE LL. NAIKUNI ENVRONMENT & LAND COURT AT MOMBASA JUDGMENT ELCPET. E017 OF 2022 Page 111 of 192 HON. JUSTICE L.L. NAIKUNI

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201. Now turning to the analysis of the sub – heading. The issue as to whether the Petition meets the requisite constitutional threshold was raised by the 1st, 2nd and 3rd Respondents through their submissions, where they contended that the Petitioner had failed to set out the alleged constitutional violations with the degree of precision required by the principles enunciated in the case of “Anarita Karimi Njeru – Versus Republic (Supra). This decision has been extensively relied on by almost all the parties herein. A similar objection was raised on behalf of the 6th Respondent, who also relied thereon and subsequently reiterated in the case of “Mumo Matemo – Versus - Trusted Society of Human Rights Alliance & 5 Others (Supra) and “Ntongai – Versus Kaberia & 3 Others (Supra)”. The Petitioner, on the other hand, maintained that the Petition had sufficiently and precisely identified the constitutional provisions alleged to have been violated and had set out the manner in which the 1st, 2nd, 3rd, 4th 5th & 6th Respondents were said to have infringed those provisions. 202. The procedural requirements governing the institution of constitutional petitions are set out in the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (“the Mutunga Rules). Rule 10 (1) requires an application under Rule 4 to be brought by way of a petition in the prescribed Form A, while Rule 10 (2) sets out the essential contents of a Constitutional Petition, as follows:10. Form of Petition (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary. JUDGMENT ELCPET. E017 OF 2022 Page 112 of 192 HON. JUSTICE L.L. NAIKUNI

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(2) The Petition shall disclose the following— (a) the Petitioner’s name and address; (b) the facts relied upon; (c) the constitutional provision violated; (d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community; (e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition; (f) the petition shall be signed by the petitioner or the advocate of the petitioner; and (g) the relief sought by the petitioner. (3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom. (4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court. 203. These requirements are intended to ensure that constitutional grievances are pleaded with sufficient clarity and particularity to enable the Court to identify the precise constitutional question arising for determination. At the same time, they ensure that the Respondent is sufficiently apprised of the case being advanced against them, thus affording them a fair and adequate opportunity to respond appropriately. In this regard, Rule 10 gives procedural expression to the principle enunciated by the High Court in “Anarita Karimi Njeru – Versus - Republic (Supra)”, where it stated as follows:JUDGMENT ELCPET. E017 OF 2022 Page 113 of 192 HON. JUSTICE L.L. NAIKUNI

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“5. … We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 204. The above test was affirmed by the Court of Appeal in the case of: “Matemu – Versus - Trusted Society of Human Rights Alliance & 5 others (Supra)”, where it was held as follows:“Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” 205. Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:a. Promotes its purposes, values and principles; JUDGMENT ELCPET. E017 OF 2022 Page 114 of 192 HON. JUSTICE L.L. NAIKUNI

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b. Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; c. Permits the development of the law; and d. Contributes to good governance……” 206. I have perused the Petition before the Court. The Petition is structured into various parts, setting out the description of the parties, the factual background, the legal foundation of the Petition, the constitutional and statutory violations alleged against the respective Respondents, and the reliefs sought. Upon consideration of the pleadings, I am satisfied that the Petitioner has identified with reasonable precision the various constitutional and statutory provisions alleged to have been contravened. More importantly, the Petitioner has proceeded to particularise the manner in which each of the Respondents is alleged to have violated or breached the said provisions. 207. The Petition is therefore premised on allegations of infringement of constitutional rights and fundamental freedoms guaranteed under the Bill of Rights and seeks the intervention of this Court in respect of the alleged violations by the Respondents. The grievances raised are, by their nature and substance, constitutional in character and properly invoke the jurisdiction of this Court. 208. Having considered the Petition, the responses thereto and the applicable legal principles governing the institution and determination of constitutional petitions, I am satisfied that the Petitioner has pleaded the alleged constitutional violations with the requisite degree of reasonable precision. The Respondents were sufficiently apprised of the nature of JUDGMENT ELCPET. E017 OF 2022 Page 115 of 192 HON. JUSTICE L.L. NAIKUNI

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the case they were required to meet, and the constitutional questions arising from the Petition are discernible from the pleadings. 209. I therefore find that the Petition substantially complies with the requirements of Rule 10(1) and (2) of the Mutunga Rules and the principles enunciated in Anarita Karimi Njeru – Versus - Republic (Supra)” and “Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & 5 Others (Supra)”. The objection as to the constitutional competence of the Petition consequently fails. The Petition having met the requisite threshold, the Court shall proceed to consider the substantive allegations of constitutional and statutory violations raised by the Petitioner and determine whether the same have been established on the evidence. ISSUE No. (b). Whether the Respondents violated the provisions relating to a clean and health environment. 210. Under this sub – heading, having determined that the Petition meets the requisite constitutional threshold, the Court now turns to the substantive issues raised by the Petitioner. In determining the merits of the Petition, the Court shall consider the pleadings, the evidence placed before it, the applicable constitutional and statutory framework, the submissions of the parties and the authorities relied upon, with a view to determining whether the alleged violations have been established. 211. The Petitioner instituted the present Petition on his own behalf and on behalf of the residents of Mwakirunge, alleging infringement of their constitutional rights and fundamental freedoms. As pleaded, the Petition is principally anchored on the provision of Articles 42, 69 and 70 of the Constitution of Kenya, 2010, which collectively provide the constitutional framework for the protection of the environment and the enforcement of JUDGMENT ELCPET. E017 OF 2022 Page 116 of 192 HON. JUSTICE L.L. NAIKUNI

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the right to a clean and healthy environment. Article 42, in particular, guarantees every person the right to a clean and healthy environment. For completeness, the provision states as follows:42. Environment Every person has the right to a clean and healthy environment, which includes the right— (a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and (b) to have obligations relating to the environment fulfilled under Article 70. 212. The right to a clean and healthy environment guaranteed under the provision of Article 42 is complemented by Article 69 of the Constitution, which sets out the corresponding obligations of the State and every person in relation to the protection, conservation and sustainable management of the environment. Article 43 guarantees every person the right to highest attainable standard of health, clean and safe water and reasonable sanitation standards. In the case of “Waweru – Versus Republic (Miscellaneous Civil Application 118 of 2004 (2006) (KLR) (Civ) (2nd March, 2006) held as follows:“As a Court we cannot therefore escape from touching on the law of sustainable development although Counsel from both sides chose not to touch on it…it goes to the heart of the matter before us. This larger issue should be of great concern to us as a court for the following reasons: a). Under Section 71 of the Constitution all persons are entitled to the right to life – In our view the right of life is not just a matter of keeping body and soul together because in this modern age that right could be threatened by many things including the environment. The right to a clean environment is primary to all creatures including man, it is inherent from the act of creation, the recent restatement in the Statutes and the Constitutions of the world notwithstanding. JUDGMENT ELCPET. E017 OF 2022 Page 117 of 192 HON. JUSTICE L.L. NAIKUNI

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b). 213. Section 3 of EMCA demands that Courts take into account certain universal principles when determining environmental cases. Apart from EMCA, it is our view that the principles set out in 3 do constitute part of international customary law and the courts ought to take cognisance of them in all the relevant situations” Article 69 therefore gives substantive content to the constitutional framework for environmental protection by prescribing specific obligations aimed at safeguarding the environment for present and future generations. The provision states as follows:69. Obligations in respect of the environment (1) The State shall— (a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; (b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; (c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; (d) encourage public participation in the management, protection and conservation of the environment; (e) protect genetic resources and biological diversity; (f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment; (g) eliminate processes and activities that are likely to endanger the environment; and (h) utilise the environment and natural resources for the benefit of the people of Kenya. (2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. 214. Article 69 obligates all persons, the State included, to protect and ensure a clean and health environment, which included but not limited to, elimination of processes and activities that are likely to endanger the environment as well as encourage public participation in the management, protection and conservation of the environment. Th the JUDGMENT ELCPET. E017 OF 2022 Page 118 of 192 HON. JUSTICE L.L. NAIKUNI

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case of “Martin Osano Rabera & Another – Versus Municipal Council of Nakuru & 2 Others (2018) eklr the Court adopted this principle. The 1st to 5th Respondents are enjoined in this suit as they are mandated to ensure environment is protected and maintained. Indeed, there is no doubt that the County Governments are responsible for waste management and for ensuring a safe environment. This Mandate is assigned to them under the Fourth Schedule, Part 2 of the Constitution 215. The provision of Article 70 of the Constitution provides the mechanism for the enforcement of the right to a clean and healthy environment guaranteed under Article 42. It permits any person who alleges that the right has been, is being, or is likely to be denied, violated, infringed or threatened to move the Court for appropriate redress. The Court is, in turn, empowered to grant appropriate relief, including orders for the prevention, discontinuance or remedying of any harm occasioned by the alleged violation. The provision states as follows:70. Enforcement of environmental rights (1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter. (2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate— (a) to prevent, stop or discontinue any act or omission that is harmful to the environment; (b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or (c) to provide compensation for any victim of a violation of the right to a clean and healthy environment. (3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury. JUDGMENT ELCPET. E017 OF 2022 Page 119 of 192 HON. JUSTICE L.L. NAIKUNI

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216. Having set out the constitutional framework governing the right to a clean and healthy environment, it is useful to briefly consider the development and recognition of that right within international and domestic law. The historical development of the right provides useful context to the constitutional protection now expressly guaranteed under the provision of Article 42 of the Constitution. In this regard, the publication titled “Realizing the Right to a Clean, Healthy and Sustainable Environment”, by Kariuki Muigua, traces the historical development and codification of the right as follows:“3.0 Legal Framework on the Right to a Clean, Healthy and Sustainable Environment The right to a clean, healthy and sustainable environment has been captured in various legal instruments at the global, regional and national level. The International Covenant on Economic, Social and Cultural Rights was the first legal instrument to consider the environment as human right issue. The Covenant requires states parties to improve all aspects of environmental and industrial hygiene. However, the right to a healthy environment was explicitly recognized for the first time vide the Stockholm Declaration which declared that declared man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. The Stockholm Declaration does not just recognise the right to a good quality environment but also places a responsibility on human beings to protect and improve the environment for present and future generations. In addition, the 1992 United Nations Conference on Environment and Development recognizes environmental protection and development as complementary objectives. The Rio Declaration stipulates that human beings are at the centre of concerns for sustainable development and are entitled to a healthy and productive life in harmony with nature. The Declaration further stipulates that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and JUDGMENT ELCPET. E017 OF 2022 Page 120 of 192 HON. JUSTICE L.L. NAIKUNI

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cannot be considered in isolation from it. The Rio Declaration thus envisages the right to a clean, healthy and sustainable environment as important in fostering Sustainable Development.” 217. The right to a clean and healthy environment is not only recognised under the Constitution of Kenya, 2010, but is also firmly anchored in international and regional human rights law. Of particular relevance is Article 24 of the African Charter on Human and Peoples’ Rights, which provides that:“All peoples shall have the right to a general satisfactory environment favorable to their development. 218. While the provision of Article 24 of the African Charter does not employ the precise formulation “right to a clean and healthy environment”, it recognises the right in terms of a general satisfactory environment favourable to development. The scope and import of this right were authoritatively considered by the African Commission on Human and Peoples’ Rights in the case of:- “SERAC – Versus - Nigeria (Supra)”, where the Commission stated as follows:“As has been rightly observed by Alexander Kiss, “an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and the development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health.” 219. International recognition of the right to a clean and healthy environment was achieved on 28th July, 2022 when the United Nations General Assembly adopted Resolution A/RES/76/300, recognising the right to a clean, healthy and sustainable environment as a human right. The Resolution recognised the relationship between this right and the JUDGMENT ELCPET. E017 OF 2022 Page 121 of 192 HON. JUSTICE L.L. NAIKUNI

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enjoyment of other human rights and acknowledged that a clean, healthy and sustainable environment encompasses, among other things, clean and balanced ecosystems, biodiversity and a stable climate. It further called upon States, international organisations, business enterprises and other relevant stakeholders to adopt policies, strengthen international cooperation and capacity-building, and promote good practices aimed at ensuring a clean, healthy and sustainable environment for all. 220. It is important to note however, that the said United Nations General Assembly Resolution is declaratory in nature and did not, in and of itself, create binding obligations upon Member States in the same manner as a treaty would have. Its significance lies principally in its affirmation of the emerging international consensus on the recognition of a clean, healthy and sustainable environment as a human right, and in its call upon States to strengthen legal and institutional measures for its protection. 221. Kenya had, however, already given constitutional recognition to the right to a clean and healthy environment well before the adoption of the aforesaid Resolution. Article 42 of the Constitution of Kenya, 2010 expressly guarantees every person the right to a clean and healthy environment. This constitutional guarantee gives effect, at the national level, to the broader recognition of the interdependence between environmental protection and the enjoyment of human rights. The right is further given statutory expression under the Environmental Management and Co-ordination Act (EMCA), which is the legislative framework for the protection and management of the environment in Kenya, and at Section 3 thereof, provides that:3. Entitlement to a clean and healthy environment JUDGMENT ELCPET. E017 OF 2022 Page 122 of 192 HON. JUSTICE L.L. NAIKUNI

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(1) Every person in Kenya is entitled to a clean and healthy environment in accordance with the Constitution and relevant laws and has the duty to safeguard and enhance the environment. (2) The entitlement to a clean and healthy environment under subsection (1) includes the access by any person in Kenya to the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural purposes. 222. Section 3 above, recognises the right of every person to a clean and healthy environment and, in doing so, complements the constitutional guarantee under Article 42 by providing a statutory basis for its protection and enforcement. It is against that constitutional and legal framework that the Court now turns to the Petition before it. From a consideration of the Petition as a whole, it is apparent that the Petitioner alleges that the Respondents, jointly and/or severally, violated various constitutional rights and obligations, including those under Articles 10, 35, 42, 61, 73, 75 and 201 of the Constitution of Kenya, 2010. For purposes of the present issue, however, the Court shall first consider the alleged infringement of the right to a clean and healthy environment under Article 42 read together with Article 69 and 70, before turning to the other constitutional and statutory violations pleaded by the Petitioner. 223. The gravamen of the Petitioner’s case is that the acts and omissions complained of have occasioned, or are likely to occasion, harm to the environment and have thereby infringed or threatened the rights of the Mwakirunge Residents to a clean and healthy environment, contrary to the constitutional obligations relating to environmental protection, JUDGMENT ELCPET. E017 OF 2022 Page 123 of 192 HON. JUSTICE L.L. NAIKUNI

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management and conservation. The Court shall accordingly consider whether the alleged infringement has been established on the evidence. 224. The aforementioned international, regional and national legal frameworks recognise the right of persons to seek redress before a court where the right to a clean and healthy environment has been violated, infringed or is under threat of violation. It is pursuant to these constitutional and legal guarantees that the Petitioner has approached this Court, alleging that the residents of Mwakirunge have suffered infringement of their right to a clean and healthy environment guaranteed under Article 42 of the Constitution. As already stated, Article 42 expressly recognises this right and places environmental protection within the framework of constitutionally protected rights, including the right to have the environment protected for the benefit of present and future generations through legislative and other measures. 225. The intrinsic connection between environmental protection and the enjoyment of human rights is now well established. A safe, clean, healthy and sustainable environment is essential to the enjoyment of a range of fundamental rights, including the rights to life, health, food, water and sanitation, and is inextricably linked to the attainment of human dignity. This interdependence is also reflected in the statutory framework under the Environmental Management and Co-ordination Act, which adopts a broad conception of the environment. Section 2 of EMCA defines the environment as follows:“… includes the physical factors of the surroundings of human beings including land, water, atmosphere, climate, sound, odour, taste, the biological factors of animals and plants and the social factor of aesthetics and includes both the natural and the built environment” JUDGMENT ELCPET. E017 OF 2022 Page 124 of 192 HON. JUSTICE L.L. NAIKUNI

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226. The broad statutory definition of the environment underscores the fact that environmental protection is not confined to the preservation of natural resources in isolation, but extends to the conditions and surroundings in which human beings live and which sustain their health, wellbeing and livelihoods. It follows that an assessment of whether the right to a clean and healthy environment has been infringed must have regard not only to the physical state of the environment, but also to the effect of environmental degradation upon the lives, health, dignity and wellbeing of those who depend upon it. 227. Conversely, environmental degradation may impair or undermine the enjoyment of many other human rights. The protection of human rights must therefore be understood as closely intertwined with the protection of the environment, a relationship that informs the interpretation and application of the constitutional right to a clean and healthy environment. The Framework Principles on Human Rights and the Environment, 2018, at page 6, similarly recognises the interdependence between environmental protection and human rights as follows:“4. Human rights and environmental protection are interdependent. A safe, clean, healthy and sustainable environment is necessary for the full enjoyment of human rights, including the rights to life, to the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to safe drinking water and sanitation, to housing, to participation in cultural life and to development, as well as the right to a healthy environment itself, which is recognized in regional agreements and most national constitutions. At the same time, the exercise of human rights, including rights to freedom of expression and association, to education and information, and to participation and effective remedies, is vital to the protection of the environment.” JUDGMENT ELCPET. E017 OF 2022 Page 125 of 192 HON. JUSTICE L.L. NAIKUNI

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228. Put differently, the right to life requires that persons live in an environment conducive to their survival and reasonably free from harmful contamination and pollution. Environmental degradation and pollution therefore have a direct bearing on the enjoyment of human rights, since, beyond a certain threshold of environmental harm, the effective enjoyment of other rights may be severely impaired or rendered impossible. The more degraded the environment, the greater the corresponding impairment to enjoyment of human rights, and conversely, the protection of the environment enhances the effective enjoyment of those rights. 229. Turning to the present Petition, the 1st Respondent is sued, inter alia, in its capacity as the County Government responsible for the management and operation of the Mwakirunge dumpsite. This responsibility is grounded in the Fourth Schedule to the Constitution, which assigns to county governments, among other functions, refuse removal, refuse dumps and solid waste disposal, as well as the control of air pollution, noise pollution and other public nuisances. The Petitioner’s case is that the operation of the dumpsite is unlawful, principally on the basis that no licence has been issued by the 4th Respondent authorising its operation. 230. The Petitioner further contends that the manner in which waste has been disposed of at the Mwakirunge dumpsite has adversely affected the residents of the area. In particular, it is alleged that, notwithstanding the statutory restrictions governing the handling and disposal of hazardous waste, the 1st Respondent has permitted the disposal of toxic waste, including medical waste, at the dumpsite. In support of these allegations, JUDGMENT ELCPET. E017 OF 2022 Page 126 of 192 HON. JUSTICE L.L. NAIKUNI

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the Petitioner produced photographic evidence depicting waste deposited on roads and community access roads, with some of the photographs showing waste in close proximity to structures appearing to be residential homes. 231. The photographic evidence produced before the Court also depicts what appears to be medical waste at the Mwakirunge dumpsite. The Court further takes note of the decision of the Supreme Court in the case of:“Export Processing Zone Authority & 10 Others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) – Versus - National Environment Management Authority & 3 Others (Petition E021 of 2023) [2024] KESC 75 (KLR)”, in which reference was made to the Report of the Standing Committee on Health on the Owino-Uhuru Public Petition which recommended the removal of hazardous waste slug that had been disposed of over the years and continued to be disposed at Mwakirunge. The legal framework governing hazardous and biomedical waste disposal is, in any event, clear. Rules 15 and 32 of the Environmental Management and Co-ordination (Waste Management) Regulations require an environmental impact assessment licence before a person may operate a site for the disposal of hazardous waste or biomedical waste. 232. The Petitioner also relied on the report titled “Mwakirunge Dumpsite: A Simmering Disaster”, being an Environmental Consequence Analysis Report prepared by Prof. Bernards Okeyo. The contents of the report were explained by Prof. Okeyo in his examination-in-chief. In relation to air quality, the report recorded particulate matter levels of 302.20 and JUDGMENT ELCPET. E017 OF 2022 Page 127 of 192 HON. JUSTICE L.L. NAIKUNI

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405.20 micrograms per cubic metre at the two sampling sites respectively, against an indicated permissible limit of 100 micrograms per cubic metre (µg/Nm³). The report further recorded carbon dioxide levels of 3.216 and 3.274 µg/Nm³ against an indicated permissible limit of 2.0 µg/Nm³. With respect to water and soil contamination, the report explained that Biochemical Oxygen Demand (BOD) and Chemical Oxygen Demand (COD) are indicators of the presence and extent of organic and inorganic contamination. The recorded BOD level was 1,150.00 mg/kg against an indicated maximum permissible level of 30 mg/kg, while the COD level was 3,520 mg/kg against an indicated permissible level of 50 mg/kg. The report also detected heavy metals in the soil, including zinc at 665.80 mg/kg, mercury at 1.47 mg/kg and copper at 167.92 mg/kg. While the report noted that these levels were elevated, it did not find them to have exceeded the indicated permissible limits. The same observation was made with respect to ammonia, which was found to be elevated but within the stated permissible level. 233. The Court has also considered the Social Environmental Impact Report on the Mwakirunge dumpsite prepared by Prof. Bernards Okeyo and filed pursuant to an order of this Court issued on 22nd April 2024. The Report found that 54% of the residents surveyed had been born and raised in Mwakirunge, while 73% of those surveyed reported that they derived no benefit from the dumpsite and instead perceived themselves as having lost considerably as a consequence of its presence. Drawing upon information obtained from four health facilities, the study documented a range of physical, mental and psychological health concerns reported within the community. Among the recurring conditions identified were JUDGMENT ELCPET. E017 OF 2022 Page 128 of 192 HON. JUSTICE L.L. NAIKUNI

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respiratory tract infections, diarrhoea and skin diseases. The Report further observed that the operation of the dumpsite in a humid tropical environment creates conditions favourable to disease vectors, including flies and mosquitoes. It also recorded infrastructural challenges associated with the dumpsite, including blocked roads which become slippery during the rainy season. 234. The Report further identified particular concerns affecting different groups within the community. It observed that elderly persons were particularly vulnerable due to reduced immunity, while children were exposed to injuries from blunt objects, food poisoning and other hazards associated with the dumpsite. It further identified security concerns affecting women, including exposure to sexual violence and HIV, as well as anxiety arising from the dangers to which their children are exposed while traversing the dumpsite. The Report also described the dumpsite as a location where delinquent activities occur and observed that its presence had contributed to social divisions within the community, including tensions between persons who derive economic benefit from the dumpsite and residents who consider themselves adversely affected by it. The Report nevertheless identified certain economic benefits, principally the income derived by waste pickers and the availability of recoverable goods for small-scale traders. 235. The health and environmental concerns associated with proximity to waste disposal sites are not unique to the Mwakirunge community. Similar concerns have been documented at the international level. In this regard, the Court takes note of the Report of the Special Rapporteur on the adverse effects of the movement and dumping of toxic and JUDGMENT ELCPET. E017 OF 2022 Page 129 of 192 HON. JUSTICE L.L. NAIKUNI

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dangerous products and wastes on the enjoyment of human rights, Okechukwu Ibeanu, Addendum: Mission to Côte d’Ivoire, A/HRC/12/26/Add.2, dated 3rd September, 2009. The Report concerned the investigation into the dumping of toxic waste in Abidjan, Côte d’Ivoire, in August, 2006 involving the vessel Probo Koala. In considering the effects of the dumping upon persons residing in proximity to the affected sites, the Special Rapporteur observed as follows:“29. Residents in areas close to the dumping sites were directly exposed to the waste through skin contact and the breathing in of volatile substances. In addition, secondary exposure reportedly occurred through contact with surface water, groundwater and eventually through the consumption of food grown on or extracted from contaminated land and water. 38. On the basis of the above considerations and taking into account the immediate impact on public health and the proximity of some of the dumping sites to areas where affected populations reside, the Special Rapporteur considers that there seems to be strong prima facie evidence that the reported deaths and adverse health consequences are related to the dumping of the waste from the Probo Koala. 60. … In addition, many people, especially those living near the dumping sites, still experience health problems. Adverse effects on childbirth and child health, including miscarriages and stillbirth, have also been reported. The monitoring of the longterm effects on human health and care for the most vulnerable therefore remains necessary.” 236. The Petitioner’s contention is that the foregoing environmental, health and social concerns are not merely consequences of the existence of the dumpsite, but arise from the manner in which the dumpsite has been operated and managed under the authority and control of the 1 st Respondent. The Petitioner maintains that the dumping and disposal of waste at the Mwakirunge dumpsite, including the alleged disposal of hazardous and medical waste, have been undertaken at the behest of, JUDGMENT ELCPET. E017 OF 2022 Page 130 of 192 HON. JUSTICE L.L. NAIKUNI

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and with the knowledge and acquiescence of, the 1 st Respondent. It is therefore the Petitioner’s case that the 1 st Respondent, being the entity charged with the constitutional responsibility for refuse removal, refuse dumps and solid waste disposal within the County, cannot disassociate itself from the environmental and health consequences arising from the manner in which the dumpsite has been operated. 237. With respect to the 4th Respondent, the Petitioner faults NEMA for permitting the 1st Respondent to continue operating the Mwakirunge dumpsite in the absence of an EIA Licence. The Petitioner contends that, notwithstanding its knowledge of the activities undertaken at the dumpsite, NEMA failed to take effective measures to mitigate the pollution complained of, prevent the unlawful disposal of waste, including hazardous waste, and ensure compliance with the applicable waste management requirements. The Petitioner further faults NEMA for failing to invoke the enforcement mechanisms available to it under Section 90 of EMCA, and particularly for failing to take further steps to stop the disposal of waste at the dumpsite after declining to issue an EIA Licence for the proposed project. It is the Petitioner’s case that these omissions, coupled with the continued disposal of waste at Mwakirunge, have resulted in environmental pollution and consequently infringed the right to a clean and healthy environment guaranteed under Article 42 of the Constitution. 238. In response, NEMA maintains that it has discharged its statutory mandate by putting in place the requisite legal and regulatory framework for the management of waste and prevention of environmental pollution. Among the measures relied upon by the 4th Respondent are the Ten (10) JUDGMENT ELCPET. E017 OF 2022 Page 131 of 192 HON. JUSTICE L.L. NAIKUNI

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Minimum Points/Requirements for County Governments, together with the various regulations governing waste management and environmental protection. NEMA does not, however, dispute that it received an Environmental and Social Impact Assessment Study Report in respect of the proposed Mwakirunge project, but declined to issue an EIA Licence authorising the operation of the proposed dumpsite, the application having been considered in light of objections and concerns raised by various stakeholders. 239. The 4th Respondent’s Replying Affidavit confirms that, following submission of the Environmental and Social Impact Assessment Study Report and consultations with the relevant lead agencies, the proposed project encountered objections from, among others, the Kenya Airports Authority (KAA), the Kenya Civil Aviation Authority (KCAA) and Environment Trust Kenya. The 4th Respondent further deponed that public hearings were undertaken but that, upon consideration of the issues raised, no EIA Licence was issued in respect of the proposed project. This position was reiterated in the testimony of the 4 th Respondent’s witness, Samuel Ruto Kopokoyot, who testified that NEMA did not issue an EIA Licence and that its decision was communicated by a letter dated 29th October, 2012. 240. It is against this factual background that the Petitioner alleges breach of the statutory provisions governing environmental impact assessment and waste management. In particular, reliance was placed on Part VI of EMCA, and specifically Sections 58, 59, 60 and 63 thereof. These provisions establish the statutory framework for environmental impact assessment and require an EIA Licence to be obtained before a project JUDGMENT ELCPET. E017 OF 2022 Page 132 of 192 HON. JUSTICE L.L. NAIKUNI

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falling within the prescribed category is undertaken. The statutory scheme further places upon NEMA the responsibility of evaluating the adequacy of an Environmental Impact Assessment Study, Evaluation or Review Report and, where satisfied with its adequacy and compliance with the law, issuing an EIA Licence subject to such terms and conditions as may be necessary to promote sustainable development and sound environmental management. 241. The significance of the absence of an EIA Licence becomes more apparent when considered alongside the statutory provisions regulating the handling and disposal of waste. Section 87 of EMCA prohibits the dangerous handling and disposal of waste and provides as follows:87. Prohibition against dangerous handling and disposal of wastes (1) No person shall discharge or dispose of any wastes, whether generated within or outside Kenya, in such manner as to cause pollution to the environment or ill health to any person. (2) No person shall transport any waste other than— (a) in accordance with a valid licence to transport wastes issued by the Authority; and (b) to a wastes disposal site established in accordance with a licence issued by the Authority. (3) No person shall operate a wastes disposal site or plant without a licence issued by the Authority. (4) Every person whose activities generate wastes shall employ measures essential to minimize wastes through treatment, reclamation and recycling. (5) Any person who contravenes any provisions of this section shall be guilty of an offence and liable to imprisonment for a term of not more than two years or to a fine of not more than one million shillings or to both such imprisonment and fine. 242. In addition to the foregoing prohibition, the operation of a waste disposal site is subject to a separate licensing requirement under Section 88 of EMCA. Accordingly, before undertaking activities involving the operation JUDGMENT ELCPET. E017 OF 2022 Page 133 of 192 HON. JUSTICE L.L. NAIKUNI

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of a waste disposal site, the County Government is required to obtain the requisite licence from the 4th Respondent. Section 88 provides as follows:88. Application for waste license (1) Any person intending to transport wastes within Kenya, operate a wastes disposal site or plant or to generate hazardous waste, shall prior to transporting the wastes, commencing with the operation of a wastes disposal site or plant or generating hazardous wastes, as the case may be, apply to the Authority in writing for the grant of an appropriate licence. (2) A licence to operate a waste disposal site or plant may only be granted subject to the payment of the appropriate fee and any other licence that may be required by the relevant Local Authority. (3) Where the Authority rejects an application made under this section, it shall within twenty one days of its decision, notify the applicant of the decision specifying the reasons therefor. 243. It follows from the foregoing that the requisite EIA Licence was not obtained for the proposed Mwakirunge sanitary landfill. This is significant because an EIA Licence is not a mere administrative formality, but a statutory safeguard intended to ensure that projects likely to have significant environmental effects are assessed before they are undertaken. The continued operation of the dumpsite in the absence of the requisite licence therefore constituted non-compliance with the environmental regulatory framework and exposed the surrounding environment, ecosystems and the residents of Mwakirunge to environmental risks that the statutory assessment process was intended to identify and address. 244. I have considered the Environmental and Social Impact Assessment Study Report submitted to the 4th Respondent by Howard Humphreys. The Report was received by NEMA, as evidenced by its acknowledgment JUDGMENT ELCPET. E017 OF 2022 Page 134 of 192 HON. JUSTICE L.L. NAIKUNI

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letter dated 26th November, 2011, bearing reference No. NEMA/EIA/5/2/730. Subsequently, by a letter dated 29th October, 2012 addressed to the Town Clerk, communicated its position City regarding Council the of Mombasa, proposed NEMA project and recommended, inter alia, that a suitable and environmentally appropriate alternative site be explored for the proposed sanitary landfill. 245. The continued disposal of waste at the Mwakirunge dumpsite in these circumstances also contravenes the precautionary principle, which is recognised under Section 18 of the Environment and Land Court Act and Section 3(5) of EMCA, and finds international expression in Principle 15 of the Rio Declaration on Environment and Development, to which Kenya is a signatory as follows:In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. (Rio Declaration on Environment and Development, 1992). 246. The precautionary principle was considered by the Supreme Court of Justice of the Nation of Mexico in Amparo en revisión 307/2016, decision of 14th November, 2018, where the Court explained that the principle requires public authorities to warn, regulate, control, supervise or restrict activities that pose environmental risks. The Court observed that:“1. Precautionary principle p.49 The precautionary principle has different scopes; it operates as an interpretive guideline given the limitations of science in establishing with absolute certainty the risks nature confronts. In relation to public administration, it implies the JUDGMENT ELCPET. E017 OF 2022 Page 135 of 192 HON. JUSTICE L.L. NAIKUNI

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duty to warn, regulate, control, oversee or restrict certain activities that are risky for the environment. In this regard, this principle can act as motivation for those decisions that would otherwise be contrary to the principle of legality or legal security; finally, for the legal agent, precaution requires her to incorporate the uncertain nature of scientific knowledge into her decisions. p.50 A central concept of the precautionary principle is environmental risk. An environmental assessment is nothing more than an assessment of risk to the environment based on which a project is admitted or rejected. In terms of the precautionary principle, an environmental risk assessment is a necessary condition for the implementation of any project with environmental impact and, consequently, its absence in itself constitutes a violation of this principle.” 247. The question that therefore arises is whether, having become aware of the proposed project and having declined to issue an EIA Licence, the 4 th Respondent discharged its constitutional and statutory mandate when the disposal of waste at the Mwakirunge dumpsite nevertheless continued. In the case of:- “Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) vs National Environment Management Authority & 3 others (2024) KESC 75 (KLR)” the Supreme Court considered the responsibility of NEMA where environmental harm had occurred notwithstanding its extensive statutory mandate. The Court observed that:123. We have already outlined the responsibility that state organs have under article 69 of the Constitution in relation to protection of the environment. NEMA in this regard has a myriad of duties under EMCA to safeguard the environment. In its enforcement capabilities under section 117 of that Act, NEMA could order the immediate closure of any manufacturing plant or other establishment or undertaking which pollutes or is likely to pollute the environment contrary to the provisions of JUDGMENT ELCPET. E017 OF 2022 Page 136 of 192 HON. JUSTICE L.L. NAIKUNI

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the Act and require the owner or operator of such establishment or undertaking to implement any remedial measures that an environmental inspector may direct; under sections 108 -116, NEMA can order restoration and conservation of the environment. Part XIII of EMCA also outlines environmental offences, Section 141 and 142 makes it an offence for failing to manage any hazardous waste and materials and polluting the environment. Despite this huge mandate, it is discernible that NEMA was negligent in the conduct of its duties in the present case or as the ELC held, NEMA’s actions assisted Metal Refinery in breaching the law instead of holding them to account. 124. As to whether there was a causal link between the actions of NEMA and the damage suffered by the 2 nd - 11th appellants, there is no doubt that NEMA’s actions and inactions provided the casual link between Metal Refinery’s negligence and the injury occasioned to the 2nd - 11th appellants. NEMA had on numerous occasions the opportunity to avert the discharges from the factory but it clearly failed on its mandate and this led to the unwarranted suffering occasioned to the residents of Owino-Uhuru Village. We therefore find that the Court of Appeal was right in holding that NEMA bore a greater responsibility and that NEMA and EPZA were the main actors in so far as the cause of deleterious activities were concerned with the liability of the other actors being either passive or reactive in relation to the pollution”. 248. The evidence before this Court demonstrates that the 4 th Respondent was not unaware of the activities at the Mwakirunge dumpsite. The residents of Mwakirunge submitted a Petition dated 7 th April, 2021 to the Principal Secretary, Ministry of Environment and Forestry, copied to NEMA, setting out their grievances concerning the dumping activities at the site. NEMA acknowledged receipt of the Petition by its letter dated 5 th May, 2021 and indicated that its officers would visit the site to ascertain areas of non-compliance with EMCA. Following the complaints and its subsequent intervention, NEMA issued an Environmental Restoration JUDGMENT ELCPET. E017 OF 2022 Page 137 of 192 HON. JUSTICE L.L. NAIKUNI

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Order dated 19th June, 2021 in which it made, inter alia, the following observations:(a) The dumpsite has not put in place the ten (10) minimum points issued by NEMA for any disposal site … (b)The dumpsite land has not been demarcated and has no beacons showing its boundaries. (c) There was a hired bulldozer pushing the waste to the desired areas and also assisting in putting off the fire. (d)There were many scavenging families living around and within the site. The families lit fires in the dumpsite to enable them recover scarp metal which causes pollution to the neighbouring community and the environment at large. (e) There were heaps of recyclables recovered at the site, ready for the market though a few buyers of the materials are on site. (f) Majority of vehicles dumping at the site belong to the County Government of Mombasa with a few vehicles coming from private companies. (g)Most of the dumping is done for domestic waste, industrial and hazardous materials including some medical waste. (h)There was some waste dumped on the way before the trucks could reach the dumpsite. (i) Wind scattering waste outside the designated area into the adjacent private land. 249. In the said Restoration Order, NEMA invoked Section 3(1) of EMCA, which guarantees every person the right to a clean and healthy environment, as well as Section 145 thereof, which makes non-compliance with the provisions of the Act an offence. Having made the foregoing observations and identified the areas of non-compliance, NEMA directed the 1st Respondent to undertake the following restorative measures:- (i) Undertake a survey of the dumpsite and designate (zone) the area as a waste management site. JUDGMENT ELCPET. E017 OF 2022 Page 138 of 192 HON. JUSTICE L.L. NAIKUNI

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(ii) Implement the ten minimum points issued by the Authority (NEMA). (iii) Regulate families scavenging at the dumpsite and manage fires. (iv) Undertake risk analysis in conjunction with Kenya Civil Aviation Authority in regard to the flight path. (v) Control waste encroachment into private farms by having a wall and ensure no waste is dumped in non-designated area. (vi) Provide staff working at the dumpsite with adequate Personal Protective Equipment (PPEs). (vii) Develop a compliance plan and share the same with the Authority (NEMA) for approval. 250. In addition, NEMA cited the offences created under the provision of Sections 142(1) and 144 of EMCA and notified the 1 st Respondent of its right to appeal the Restoration Order to the National Environment Tribunal (NET). There is no evidence before this Court that the 1 st Respondent lodged any such appeal. The Restoration Order therefore remained unchallenged. 251. In its Replying Affidavit, the 4th Respondent further averred that it had developed the Ten Minimum Points for Waste Disposal as a framework for promoting sound and appropriate waste collection, transportation and management of disposal sites by County Governments. The Court notes, however, that while the 4th Respondent consistently refers to the framework as comprising ten minimum points, subsequent documentation, such as the Devolution Performance Results Framework of September, 2024 refers to thirteen minimum point requirements for County Governments. This notwithstanding, the 4th Respondent produced a report dated 4th February, 2022, titled “Report on the Ten Minimum Points in Mombasa County,” which assessed the 1st Respondent’s JUDGMENT ELCPET. E017 OF 2022 Page 139 of 192 HON. JUSTICE L.L. NAIKUNI

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progress in implementing eleven (11) identified requirements, as follows:1. Oversee and ensure that the County Government zones the waste operational areas 2. Ensure that all County activities/facilities such as curbside/door to door collection, skips/ bulk containers and waste cubicles do not become eyesores by ensuring the County regularly remove and in a timely manner transport waste to disposal sites 3. Ensure that counties improve collection methods and facilities and further ensuring that they are adequate, effective and there is no waste in the streets 4. Oversee and ensure that the Counties have all the waste removed from the streets by ensuring there are enough waste transport vehicles which must be NEMA licensed 5. Designate the official County disposal site(s) 6. Secure the site with a fence and a gate manned by a council official to control dumping and spread of waste outside disposal site. 7. Weigh or estimate and record the amount of incoming waste in tones 8. Develop motorable roads inside the site to ensure vehicles do not get stuck as they go to tipping face 9. Spread the waste at regular intervals, compact and cover 10. Develop and install proper control system for dumpsite fires and extinguish all fires at site 11. Enhance security and control of the disposal sites so that illegal activities are contained. 252. The said Report found that, in relation to Point 4, only private waste collection trucks had been licensed, while the 1st Respondent’s trucks were non-compliant. Under Point 5, the designated disposal site was identified as the Mwakirunge dumpsite. However, notwithstanding the requirement for the dumpsite to be fenced, the Report noted that the site JUDGMENT ELCPET. E017 OF 2022 Page 140 of 192 HON. JUSTICE L.L. NAIKUNI

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remained unfenced and that fencing was awaiting budgetary allocation. With respect to Point 6, concerning the compaction of waste, the Report noted that the compactor at the dumpsite was broken down. As regards Point 10, the Report recorded the presence of fires at the dumpsite and noted that, although the fire brigade was occasionally called upon to intervene, its response was wholly inadequate. 253. Although the Report recorded the 1st Respondent as compliant with the remaining requirements, the evidence before this Court raises concerns regarding the extent of such compliance. The photographs produced by the Petitioner depict garbage and waste deposited along community access roads, notwithstanding the Report’s finding that motorable roads were maintained both along the road leading to the dumpsite and within the dumpsite. Further, notwithstanding the concerns raised by the Kenya Airports Authority regarding the location of the dumpsite in relation to the flight path, the Report noted that no assessment had been undertaken to determine the potential hazard posed to aircraft. 254. On its part, the 1st Respondent produced a Status Report on the Mwakirunge Dumpsite dated 11th June, 2024. The Report states that the 1st Respondent had hired a bulldozer to assist in clearing the accumulated waste. It further stated that, in preparation for construction of a boundary wall, five beams had been erected to mark the boundary points, in the course of which the 1st Respondent discovered what it described as encroachment into the dumpsite by persons who had erected illegal structures. The 1st Respondent also reported that it had constructed a 100 - metre-long and 2-metre-high soil embankment, which had improved the appearance of the site and assisted in confining JUDGMENT ELCPET. E017 OF 2022 Page 141 of 192 HON. JUSTICE L.L. NAIKUNI

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waste within the designated area. It further stated that two murram access roads had been constructed to facilitate movement within the dumpsite and that there were plans for further improvement of the roads. 255. I have considered these measures against the requirements identified by NEMA and the directions contained in the Restoration Order, as well as the orders of this Court issued on 23rd March, 2023. While the measures undertaken by the 1st Respondent demonstrate some effort towards addressing the conditions at the dumpsite, they do not, on the evidence before this Court, demonstrate full compliance with the Ten Minimum Points or with the Restoration Order. Of particular significance is the absence of evidence demonstrating that the deficiencies identified by NEMA, including the lack of fencing, the failure of the compactor and the persistent fires, had been fully remedied. RW - 4 further testified that the 1st Respondent had consistently made budgetary allocations towards the dumpsite. However, there was no satisfactory evidence before the Court demonstrating the extent to which those allocations had translated into compliance with the specific remedial measures required by NEMA. Equally, there is insufficient evidence of the steps taken by the 4 th Respondent to ensure that the 1st Respondent fully complied with the Restoration Order after its issuance. Notably also, neither the 1 st nor 4th Respondent took any steps towards regularisation of the licensing of the dumpsite. 256. The evidence therefore establishes that, notwithstanding the intervention by NEMA and the measures subsequently undertaken by the 1 st Respondent, JUDGMENT ELCPET. E017 OF 2022 significant deficiencies Page 142 of 192 in the management of HON. JUSTICE L.L. NAIKUNI the

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Mwakirunge dumpsite persisted. The 1st Respondent, as the entity responsible for refuse removal, refuse dumps and solid waste disposal within the county, was under a constitutional and statutory obligation to ensure that the disposal of waste was undertaken in a manner that safeguarded the environment and the health of the residents. The 4 th Respondent, on the other hand, was charged with the statutory responsibility of supervising, coordinating and enforcing environmental standards. In the circumstances of this case, I find that both the 1 st and 4th Respondents failed, within their respective mandates, to take adequate and effective measures to prevent and address the environmental harm arising from the continued operation of the Mwakirunge dumpsite. I am therefore satisfied that the Petitioner has established, on a balance of probabilities, that the acts and omissions of the 1st and 4th Respondents resulted in a violation of the Mwakirunge Community Residents’ right to a clean and healthy environment guaranteed under the provision of Article 42 of the Constitution of Kenya, 2010. ISSUE No. (c): Whether the Respondent’s actions amounted to an infringement of the Petitioner’s Constitutional and statutory rights. 257. In addition to the infringement of the residents’ right to a clean and healthy environment considered above, the Petitioner has alleged violations of other constitutional provisions relating to public governance, access to information, leadership and the management of public finances. In particular, the Petitioner contends that the acts and omissions of the Respondents infringed the provision of Articles 10, 35, JUDGMENT ELCPET. E017 OF 2022 Page 143 of 192 HON. JUSTICE L.L. NAIKUNI

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73, 75 and 201 of the Constitution, which respectively embody the national values and principles of governance, the right of access to information, the principles and responsibilities of leadership, the conduct of State officers, and the principles governing public finance. The Court shall therefore consider, in turn, whether the evidence placed before it establishes a violation of any of these constitutional provisions and, where applicable, the statutory obligations giving effect to them. (i) Article 35 - Access to information 258. The first issue for consideration under this head concerns the alleged violation of the right of access to information guaranteed under the provision of Article 35 of the Constitution, which provides as follows:35. Access to information (1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation. 259. The constitutional right of access to information under the provision of Article 35 is further given effect at the county level through Section 96 of the County Governments Act, 2012. The provision recognises access to information as an essential component of county governance and requires county governments to facilitate access to information held by them, subject to the applicable law. I have cited the case of “Malindi Residence Development Group & Another – Versus - County Government of Kilifi & 4 Others (ELC Petition No. 6 of 2022 KEELC 3835 (KLR)”, JUDGMENT ELCPET. E017 OF 2022 Page 144 of 192 HON. JUSTICE L.L. NAIKUNI

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where my brother Judge Mwangi had this to say:“In an article “Environmental Law in Uganda: Constitutional Approaches, Human Rights and Biodiversity Management” by Emmanuael Kasimbazi stated that the genesis of the right of access to environmental information can be traced from the Stockholm Declaration on Human Environment of 1972, which first pronounced itself on the interrelationship between the enjoyment of human rights and quality of the environment and since then, it has been reiterated in various international soft law instruments, including the Rio Declaration and its sister instrument, Agenda 21. Principle 10 of the 1992 Rio Declaration states that ‘at the national level, each individual shall have appropriate access to information concerning the environment and that is held by public authorities, including information on hazardous materials and activities that in their communities, and the opportunities to participate indecision – making process” Accordingly, the constitutional guarantee under Article 35 must be read together with the statutory obligations imposed upon county governments under Section 96, particularly where the information sought relates to the exercise of county functions and the management of public affairs. The County Governments Act provides as follows at Section 96: 96. Access to information (1) Every Kenyan citizen shall on request have access to information held by any county government or any unit or department thereof or any other State organ in accordance with Article 35 of the Constitution. (2) Every county government and its agencies shall designate an office for purposes of ensuring access to information as required by subsection (1). (3) Subject to national legislation governing access to information, a county government shall enact legislation to ensure access to information. (4) A county legislation enacted pursuant to subsection (3), may impose reasonable fees or charges for accessing information held by the county government, its departments or agencies.” 260. The importance of access to information in environmental matters is further recognised under Principle 10 of the Rio Declaration on JUDGMENT ELCPET. E017 OF 2022 Page 145 of 192 HON. JUSTICE L.L. NAIKUNI

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Environment and Development, which emphasises access to information, public participation and access to justice as essential components of sound environmental governance. The principle further recognises that individuals are entitled to appropriate access to environmental information held by public authorities, including information concerning hazardous materials and activities within their communities, and the opportunity to participate in decision-making processes. Principle 10 provides, in part, as follows:‘at the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate indecision-making processes.’ 261. The right to access to information is not an end in itself. Often times, it facilitates the effective enjoyment and enforcement of other constitutional rights by enabling citizens to obtain knowledge of facts, decisions and data concerning matters that affect their lives and communities, including pollution, environmental hazards and public projects. Access to such information also enables citizens to participate meaningfully in decision-making processes and, where necessary, to seek appropriate administrative or judicial remedies for the protection of their rights. 262. In the present Petition, the Petitioner alleges that the 2 nd Respondent denied him information concerning the expenditure of public funds budgeted and allocated for the Mwakirunge dumpsite. The complaint concerning access to information is also directed at the 3 rd Respondent, who the Petitioner faults for failing to avail information concerning ownership of the land on which the dumpsite is situated. The Petitioner JUDGMENT ELCPET. E017 OF 2022 Page 146 of 192 HON. JUSTICE L.L. NAIKUNI

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alleges that he was neither supplied with a allotment letter, title deed nor lease relating to the said parcel of land. The Petitioner also alleges that the 5th Respondent failed to respond to his inquiry concerning its position on the Mwakirunge dumpsite. 263. The Petitioner contends that the failure by the Respondents to provide the information sought limited his ability to understand, interrogate and, where necessary, challenge the decisions and actions complained of in the Petition. He consequently alleges that the Respondents violated his right of access to information guaranteed under Article 35 of the Constitution and the Access to Information Act. 264. The 3rd Respondent, through the Hon. Attorney-General, however, contended that the information concerning ownership and registration of the land was obtainable through the statutory mechanisms provided under the Land Registration Act, including an official search and access to the register. Counsel relied, in particular, on the provision Sections 10 and 34 of the Land Registration Act., which provide as follows, respectively:10. Public access to the register Subject to the Constitution and any other law regarding freedom of and access to information, the Registrar shall make information in the register accessible to the public by electronic means or any other means as the Chief Land Registrar may reasonably prescribe. And, 34. Searches and copies A person who requires an official search in respect of any parcel, shall be entitled to receive particulars of the subsisting entries in the register, certified copies of any document, the cadastral map, or plan filed in the registry upon payment of the prescribed fee. JUDGMENT ELCPET. E017 OF 2022 Page 147 of 192 HON. JUSTICE L.L. NAIKUNI

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265. The Hon. Attorney-General further relied on Regulation 86 of the Land Registration (General) Regulations, 2017, which prescribes the procedure for obtaining an official search in respect of land registered under the Land Registration Act. It was submitted that the Petitioner ought to have invoked that procedure and paid the requisite fees to obtain the information sought. 266. However, if the Petitioner’s case is well understood, then neither he nor the residents of Mwakirunge knew whether the land on which the dumpsite stood had been formally demarcated, allocated or registered in favour of any person or entity, and that it was precisely for that reason that the information was sought from the relevant public authorities. In the circumstances, the Court must consider whether the availability of an official search as a statutory mechanism, in the circumstances obtaining in this case, absolved the Respondents of the obligation to respond to the specific requests for information made by the Petitioner. 267. In the case of:- “Okiya Omtatah Okoiti – Versus - Attorney General, High Court Petition No. 58 of 2014”, the Court affirmed that the right of access to information under Article 35 of the Constitution is not unfettered and that a person seeking information must first make reasonable efforts to obtain it through the appropriate channels before approaching the Court. Thus, a person alleging violation of Article 35 must demonstrate that reasonable steps were taken to obtain the information from the relevant public body or institution. In the present case, having considered the evidence and exhibits on record, I am satisfied that the Petitioner discharged that obligation by making several JUDGMENT ELCPET. E017 OF 2022 Page 148 of 192 HON. JUSTICE L.L. NAIKUNI

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requests for the information from the Respondents through the correspondence produced in evidence. 268. With respect to the ownership of the Mwakirunge dumpsite land, I have considered the letter dated 6th December, 2021 addressed to the County Land Adjudication and Settlement Officer. The letter sought information concerning the identity of the owner of the land, the user of the land, the ownership and title documents relating thereto, and whether the land upon which the dumpsite stood had been partitioned. The Petitioner’s evidence was that no substantive response was received to that request. While an official search may constitute one lawful avenue through which information concerning registered land may be obtained, the Court must consider the circumstances in which the request was made, including the Petitioner’s assertion that the very identity and registration status of the land were unknown to him and the affected residents. 269. The Petitioner further complained that the 5 th Respondent failed to substantively respond to his letter dated 8th December, 2021 concerning its position on the Mwakirunge dumpsite. The 5 th Respondent, in response, submitted that the letter merely sought clarification and did not constitute a request for information. I have considered the said letter. Although its subject matter refers to a request for clarification concerning the 5th Respondent’s position on the Mwakirunge dumpsite, the substance of the letter clearly sought specific information from the 5th Respondent. 270. In particular, the letter sought information concerning the aircraft flight path in relation to the dumpsite, whether the 5 th Respondent had entered into any out-of-court settlement with any statutory body concerning the JUDGMENT ELCPET. E017 OF 2022 Page 149 of 192 HON. JUSTICE L.L. NAIKUNI

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Mwakirunge dumpsite, whether there were any legal proceedings relating to the concerns raised by the Petitioner, and, if so, the status and stage of such proceedings. In my view, these were requests for information within the ordinary meaning and scope of the provision of Article 35 of the Constitution and cannot be rendered otherwise merely because the correspondence was headed as a request for “clarification”. 271. Once the Petitioner demonstrated that specific information had been sought from the Respondents, it was incumbent upon the latter to demonstrate that the requests had been responded to or that there existed a lawful basis for withholding the information. I have carefully examined the replying affidavit and material placed before the Court by the Respondents. I have not found any correspondence demonstrating that the specific requests made by the Petitioner were substantively answered. The 5th Respondent’s contention that the Petitioner already possessed information concerning its position on the dumpsite does not, without more, answer the specific requests particularised in the letter of 8th December, 2021. I therefore find that the 5 th Respondent failed to discharge its obligation to respond to the requests for information made by the Petitioner and, to that extent, violated the Petitioner’s right of access to information under Article 35 of the Constitution. 272. As regards the 1st, 2nd and 3rd Respondents, the Petitioner similarly contends that the requests for information made to them were not adequately responded to. It was thus incumbent upon the Respondents to establish to this court that they responded to such correspondence. However, I do not find any annexures in the form of correspondence in the 1st to 3rd Respondents’ Replying Affidavits suggesting in the remotest JUDGMENT ELCPET. E017 OF 2022 Page 150 of 192 HON. JUSTICE L.L. NAIKUNI

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sense that the requests for information lodged by the Petitioners were ever honoured with any responses. (ii) Article 201 - Public Finance Management and Audit 273. The Petitioner further alleges a violation of Article 201 of the Constitution in relation to the management and utilisation of public resources earmarked for the Mwakirunge dumpsite. Article 201 sets out the principles that are to guide public financial management, including openness and accountability, public participation in financial matters, prudent and responsible use of public money, and clear and responsible financial management. Where public resources are allocated for environmental protection, waste management or related public services, their management and utilisation must therefore be undertaken in a manner that is transparent, accountable and responsive to the public interest. 274. The Petitioner alleges that the 2 nd Respondent failed to account for, and to prudently and responsibly utilise, funds allocated for the Mwakirunge dumpsite. He further faults the 6th Respondent for failing to act upon the concerns raised regarding the specific budgetary allocations. The Petitioner also pleaded violations of the provisions of Part IV of the Public Finance Management Act relating to the responsibilities of county governments in the management and control of public finances. 275. In response to the allegations levelled against it, the 6th Defendant claimed that Article 252 of the Constitution and Section 30 of the Public Audit Act empower the Auditor-General to determine the scope and extent of an audit and, where appropriate, to conduct investigations either on its own JUDGMENT ELCPET. E017 OF 2022 Page 151 of 192 HON. JUSTICE L.L. NAIKUNI

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initiative or upon receipt of a complaint from a member of the public. The deponent further stated that the 6th Respondent is an independent constitutional office pursuant to Article 249(2)(b) of the Constitution and Section 10(1) of the Public Audit Act, 2015, and is therefore not subject to the direction or control of any person or authority. 276. The 6th Respondent relied on the decision in the case of:- “Samson Owimba Ojiayo – Versus - Independent Electoral and Boundaries Commission (IEBC) & Another (2013) eKLR” in support of the proposition that even the Court cannot compel the 6 th Respondent to exercise its discretionary powers in a particular manner. In the said case, the Court held that:“11. The IEBC is an independent body established under Article 248 (2) (c) of the Constitution and as an independent Commission and as such, in the performance of its functions the Commission is not subject to control or direction from any person or authority, including the Court. Article 249 (2) of the Constitution lays emphasis on this independence devoid of any direction or control from any other person. The IEBC must be given discretion to assess the situation and intervene when in a particular situation demands such intervention. It is not for this court to compel the independent Commission to flex its muscles and exercise discretionary powers and least of all dictate to it when and how it is to flex those muscles. Section 42 of the Elections Act and Regulation 94 (4) of the Elections (General) Regulations specifically give the IEBC discretion in carrying out accreditation of election observers.” 277. I have considered the authority relied upon by the 6 th Respondent. However, the circumstances in the present Petition are distinguishable. The Petitioner in the above-cited suit sought to have IEBC disqualify certain election observers from taking part as such during Kenya’s 4 th March, 2013 General elections accusing them of partisanship. While the primary mandate of the IEBC being conduct and supervision of elections, JUDGMENT ELCPET. E017 OF 2022 Page 152 of 192 HON. JUSTICE L.L. NAIKUNI

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the disqualification of election observers was indeed a discretionary exercise, and for that reason, the High Court was right in holding as it did. In fact, the High Court went on to explain that:“14. In the absence of demonstration of violation of threatened violation of the fundamental rights and freedoms or breach of the law, this court cannot interfere with the discretionary mandate of IEBC and purport to step into the shoes of the IEBC. As this court stated in the case of Wamwere – Versus Attorney General (2004) 1 KLR; “...I see no need to seek leave that a public officer should be compelled to do something when there is no evidence of refusal or at the very least apparent refusal on the part of the public officer to do the thing. Even if such refusal had been shown, it must also be shown to be unlawful. Sadly, in this case, neither has been shown.” 15. I still reiterate that position. In International Centre for Policy and Conflict and 5 others v ATtorney General and 4 others, Petition 552 of 2012, the court remarked as follows regarding the independence of the constitutional bodies; “An important tenet of the concept of the rule of law is that this court before exercising its jurisdiction under Article 165 of the Constitution in general, must exercise restraint. It must first give an opportunity to the relevant constitutional bodies or State organs to deal with the dispute under the relevant provision of the parent statute. If the court were to act in haste, it would be presuming bad faith or inability by that body to act. For instance, in the case of IEBC, the court would end up usurping IEBC’s powers. This would be contrary to the institutional independence of IEBC guaranteed by Article 249 of the Constitution.” 16. I accept this reasoning and would only quickly add that I have not been shown that the IEBC has failed to adhere to any law nor that it has failed to discharge a specific mandate as required of it or infringed upon any fundamental right of the Applicant or any other Kenyan voter. The Petitioner has no concrete evidence to support his claims of impartiality…” 278. The Petitioner herein is not asking this Court to direct the Auditor-General on the manner in which an audit should be conducted or to substitute the Court’s judgment for that of the Auditor-General in the exercise of an JUDGMENT ELCPET. E017 OF 2022 Page 153 of 192 HON. JUSTICE L.L. NAIKUNI

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audit function. Rather, the complaint is that, despite concerns having been raised regarding the utilisation of public funds allocated for the Mwakirunge dumpsite, the 6th Respondent failed to discharge its constitutional and statutory mandate in relation to the audit and reporting on the use of such public funds. The question before this Court is therefore not whether the Auditor-General should have exercised a discretionary power in a particular manner, but whether, on the evidence before the Court, the 6th Respondent failed to discharge a duty imposed upon it by the Constitution and the law. 279. The Office of the Auditor-General is indeed a Constitutional Office established under Article 229 of the Constitution, while the provision of Section 4 of the Public Audit Act, 2015, gives effect to that constitutional office by establishing it as a body corporate with capacity to sue and be sued. The mandate and functions of the Auditor - General are set out under the provision of Section 7 of the Act as follows:7. Functions and powers of the Auditor-General (1) In addition to the functions and responsibilities of the Auditor-General as set out in Article 229 of the Constitution, the Auditor-General shall— (a) give assurance on the effectiveness of internal controls, risk management and overall governance at national and county government; (b) undertake audit activities in state organs and public entities to confirm whether or not public money has been applied lawfully and in an effective way; (c) satisfy himself or herself that all public money has been used and applied to the purposes intended and that the expenditure conforms to the authority for such expenditure; (d) confirm that— (i) all reasonable precautions have been taken to safeguard the collection of revenue and the acquisition, receipt, issuance and proper use of assets and liabilities; and (ii) collection of revenue and acquisition, receipt, issuance and proper use of assets and liabilities conforms to the authority; JUDGMENT ELCPET. E017 OF 2022 Page 154 of 192 HON. JUSTICE L.L. NAIKUNI

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(e) issue an audit report in accordance with Article 229 of the Constitution; (f) provide any other reports as may be required under Article 254 of the Constitution; and (g) perform any other function as may be prescribed by any other written legislation. (2) Without prejudice to the generality of subsection (1), the Auditor-General may undertake any audits required under the Constitution, this Act or any other relevant law. 280. The primary mandate of the Auditor - General is to audit and report on the use and management of public resources by public entities, including county governments. The provision Article 229 (6) of the Constitution requires the Auditor-General to confirm whether public money has been applied lawfully and in an effective way, while Section 7 of the Public Audit Act, 2015, elaborates this mandate by empowering the AuditorGeneral to audit and report on the accounts of public entities, ascertain whether public money has been applied lawfully and in an effective manner, and undertake such other functions as are necessary for the proper discharge of the constitutional and statutory mandate. The audit function has been said to extend beyond mere examination of financial statements to include scrutiny of the legality, propriety, effectiveness and proper management of public resources, thereby promoting accountability, transparency and responsible financial management within public entities. 281. It follows therefore, that the Court may intervene where the evidence establishes that the Auditor-General has failed to perform a constitutional or statutory duty imposed upon the Office. The Court must, however, guard against directing the Auditor-General as to how an independent audit, investigation or inquiry ought to be conducted or what conclusion JUDGMENT ELCPET. E017 OF 2022 Page 155 of 192 HON. JUSTICE L.L. NAIKUNI

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ought to be reached. The distinction is therefore between compelling the performance of a constitutional or statutory duty, where a failure to perform such duty has been demonstrated, and directing the manner or outcome of the audit or investigation. The latter would impermissibly encroach upon the independence of the Office. The question before this Court is consequently whether the evidence demonstrates a failure by the 6th Respondent to discharge a constitutional or statutory mandate, rather than whether the Petitioner agrees with the outcome of any audit undertaken. 282. The Court is also mindful of the protection afforded to the AuditorGeneral and her staff under the provision Section 71 of the Public Audit Act, which shields them from personal liability for acts or omissions undertaken in good faith in the discharge of their constitutional and statutory functions. That protection does not, however, place the Office beyond the scrutiny of the Court where a failure to discharge a constitutional or statutory duty is alleged and established. The question is therefore not whether the Auditor-General enjoys immunity from judicial scrutiny, but whether, having regard to the evidence before the Court, including the audit reports relating to the County Government of Mombasa and the statutory mandate of the 6 th Respondent, there is a demonstrated failure to discharge a constitutional or statutory duty and, if so, whether the impugned conduct falls within the protection afforded by Section 71 of the Act, which is to the effect that:71. Protection from personal liability The Auditor-General and his or her staff, or a person acting on the directions of the Auditor-General shall not be personally liable for any act or omission done or omitted in good faith in JUDGMENT ELCPET. E017 OF 2022 Page 156 of 192 HON. JUSTICE L.L. NAIKUNI

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carrying out any duty, or exercising any power or function of the Auditor-General under this Act or the Constitution. 283. However, it must be noted that the protection under the provision of Section 71 is not a blanket immunity. It is qualified by the requirement that the impugned act or omission must have been undertaken in good faith in the discharge of the Auditor-General’s constitutional and statutory functions. More importantly, the protection relates to personal liability for acts or omissions undertaken in good faith and does not, in my view, place the Office of the Auditor-General beyond constitutional or judicial scrutiny. Neither does it preclude the Court from examining whether the Office discharged the mandate conferred upon it by Article 229 of the Constitution and the Public Audit Act. The question before this Court is therefore not whether the Auditor-General should be held personally liable, but whether, in the circumstances of this case, the 6 th Respondent discharged its constitutional and statutory obligations upon receipt of the Petitioner’s complaint, having regard to the investigations undertaken, the audit reports produced and the powers available to the Office under the Public Audit Act. 284. Section 9(1) of the Public Audit Act empowers the Auditor-General to undertake investigations either on her own initiative or pursuant to a complaint made by any person. Further, Sections 21 and 22 confer upon the Auditor-General powers to obtain information from third parties and, where there are reasonable grounds to believe that public funds have been fraudulently or unlawfully paid into a person’s bank account, to seek an order of the Court for the tracing of such funds and transactions. These provisions demonstrate that the Auditor-General possesses the JUDGMENT ELCPET. E017 OF 2022 Page 157 of 192 HON. JUSTICE L.L. NAIKUNI

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necessary statutory powers to interrogate allegations concerning the unlawful, irregular or ineffective use of public resources where such concerns arise in the course of the discharge of the Office’s mandate. 285. The Petitioner contends that, having reported to the Auditor-General the alleged misuse, misapplication or misdirection of public funds by the County Government of Mombasa, the Auditor-General was under a statutory obligation to investigate the complaint but she failed to discharge her mandate in that regard. The Court, however, takes judicial notice of the fact that the Auditor-General, in the exercise of the constitutional and statutory audit mandate, prepared and published audit reports relating to the County Government of Mombasa. The existence of those reports is material to the determination of whether the 6th Respondent discharged its mandate as alleged. The Court must therefore consider their contents and, in particular, whether they demonstrate that the specific concerns raised by the Petitioner regarding funds allocated for waste management and the Mwakirunge dumpsite were audited, addressed or otherwise acted upon in the course of the 6 th Respondent’s statutory functions 286. Notably, the concerns raised by the Petitioner relate principally to budgetary allocations for the Financial Years 2018/2019 and 2020/2021. However, the Financial Audit Report for the Financial Year 2020/2021 was not availed before this Court. I have nevertheless perused the MediumTerm Citizen’s Budget Estimates for the Financial Years 2018/2019– 2020/2021. At page 13 thereof, a sum of Kenya Shillings Fifty One Million (Kshs. 51,000,000/-) was allocated for the purchase of three compactors for all wards, while a sum of Kenya Shillings Eighty Million (Kshs. JUDGMENT ELCPET. E017 OF 2022 Page 158 of 192 HON. JUSTICE L.L. NAIKUNI

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80,000,000/-) was set aside for the purchase of three bulldozers for all wards. 287. I have compared these allocations with the Financial Audit Report for the year ending year 2019. At page xii, the Report notes that the 1st Respondent, through its Energy, Environment and Waste Management Department, had spent a sum of Kenya Shillings Seventy Three Million (Kshs. 73, 000, 000.0/=) on the purchase of new trucks and tractors to aid garbage collection. There is, however, no corresponding mention of the bulldozers or compactors for which the aforementioned allocations had been made. RW - 6, who testified on behalf of the 1 st and 2nd Respondents, stated that he was unaware that funds had been allocated in the Financial Year 2018/2019 for the purchase of bulldozers, although he confirmed that the purchase had not been made. Further, at page 13, the Report lists projects undertaken by the 1 st Respondent, together with their respective costs and field verification results. Significantly, the Mwakirunge dumpsite does not appear among the projects listed as having received funding. 288. The foregoing evidence raises legitimate questions regarding the utilisation and accounting for public funds allocated for waste management and related equipment. Of particular significance is the apparent disparity between the budgetary allocations for the purchase of compactors and bulldozers and the evidence that the intended purchases were not made, coupled with the absence of any corresponding expenditure relating to the Mwakirunge dumpsite in the projects identified in the Audit Report. These were matters falling within the constitutional and statutory mandate of the 6 th Respondent to audit and JUDGMENT ELCPET. E017 OF 2022 Page 159 of 192 HON. JUSTICE L.L. NAIKUNI

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report upon. Yet, despite the concerns raised by the Petitioner and the matters disclosed by the audit material placed before this Court, there is no evidence demonstrating that the 6th Respondent specifically interrogated, addressed or reported upon the apparent discrepancies concerning the funds earmarked for the Mwakirunge dumpsite and the related waste-management equipment. In the circumstances, I find that the 6th Respondent failed to adequately discharge its constitutional and statutory mandate in relation to the specific concerns raised by the Petitioner regarding the utilisation of public resources. (iii) Violations in respect to land 289. The Petitioner also relies on Article 61 of the Constitution in relation to the status and ownership of the land upon which the Mwakirunge Dumpsite is situated. His contention is that, if the land had never been surveyed, adjudicated or otherwise formally allocated, it ought to be regarded as community land belonging to the Mwakirunge Community. The Petitioner’s case is principally founded on the assertion that members of the Mwakirunge Community had settled and occupied the area long before the establishment of the dumpsite. The historical occupation of the area by members of the community is not seriously disputed. Indeed, the 3rd Respondent acknowledged at paragraph 6 of its Replying Affidavit that the Mwakirunge Community had settled in the area prior to the establishment of the dumpsite. RW - 1 similarly acknowledged that the residents had occupied the area before it was converted into a dumping site and that there were graveyards situated thereon. JUDGMENT ELCPET. E017 OF 2022 Page 160 of 192 HON. JUSTICE L.L. NAIKUNI

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290. The evidence that has emerged, however, materially alters the legal character of the land in question. Contrary to the premise upon which the Petitioner’s claim is founded, it is now apparent that the land was demarcated and subsequently allocated to the County Government of Mombasa as its own land, and not as unregistered community land held by the County Government in trust for the Mwakirunge Community. The mere fact that the community occupied the land prior to its allocation, or that the residents had established homes and graveyards thereon, does not, without more, determine the constitutional classification or ownership of the land. Therefore, despite the historical occupation of the land by the residents of the Mwakirunge Community, a clear legal interest was subsequently acquired by the County Government. 291. This court has seen a copy of a letter of allotment dated 2 nd July, 2001 issued in favour of Mombasa Municipality for purposes of a proposed site for dumping at Mwakirunge. Thereafter, a Certificate of Title Grant No. CR 41964 dated 2nd February, 2007 was issued to Municipal Council of Mombasa over the parcel of land known as L.R. No. MN/II/10071. The site visit report confirms that this is the same property that the court visited on 30th September, 2022. Without a doubt, the land where the dumpsite currently sits on belongs to the 1 st Respondent, as the entity that succeeded the Municipal Council of Mombasa. The 1 st Respondent’s title stands and has not been challenged in line with Section 26 of the Land Registration Act on whether the allocation and issuance of title thereof was lawful. Aside from the historical occupation and the graves allegedly on the land, the Petitioner have not established any subsisting JUDGMENT ELCPET. E017 OF 2022 Page 161 of 192 HON. JUSTICE L.L. NAIKUNI

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constitutional or statutory claim to the land notwithstanding that allocation. 292. This finding, however, does not dispose of the environmental rights asserted in the present Petition. The fact that the Petitioners do not hold proprietary rights over the land upon which the Mwakirunge Dumpsite is situated does not, in itself, disentitle them from the protection afforded by the Constitution. The right to a clean and healthy environment guaranteed under Article 42 is a human right directed at protecting persons from environmental harm and is not, by its nature, contingent upon ownership or occupation of the land on which the environmental harm occurs. In the case of:- “Kimeu – Versus - Kenya Pipeline Company Ltd & another (Environment and Land Petition 9 of 2019 & Petition 8 & 12 of 2019 (Consolidated)) [2025] KEELC 5239 (KLR) (11th July, 2025) (Judgment)”, the Court explained that:“241. It is therefore explicit that article 42 of the Constitution provides for the right of every person to a clean and healthy environment, as an omnibus right, which encompasses the right to have the environment protected. Essentially, this article recognizes that the environment being an asset in itself deserves protection, which is independent of its impacts on humans. Further, it takes cognizance of a human rights-based approach in environmental protection. 242. Therefore, the right to a healthy and safe environment encompasses the right to protection of the environment, which therefore means that the inherent and intrinsic value of living entities both human and non-human are recognized under our law. Thus, our law provides for a sustainable ecosystem. As stipulated in article 42(b) of the Constitution, duty bearers have obligations in regards to the environment as an independent entity. 243. … 244. Where there is environmental degradation or pollution as in this instance, and both the environment as well as human lives are detrimentally impacted, the court is empowered to JUDGMENT ELCPET. E017 OF 2022 Page 162 of 192 HON. JUSTICE L.L. NAIKUNI

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grant remedies to protect the environment as an independent entity and also grant orders to protect human life. In the Nigerian case of Centre for Oil Pollution Watch – Versus Nigerian National Petroleum Corporation. Supreme Court of Nigeria SC 319/2013, the Supreme Court of Nigeria upheld the position that where government agencies mandated to enforce compliance of environmental laws and policies fail to do so in circumstances where there is environmental degradation, the issue of ownership of land does not arise, but the court should not hesitate to grant appropriate orders to protect the environment.” 293. This approach is consistent with international environmental jurisprudence, including the case of:- “Kaliña and Lokono Peoples Versus – Suriname”, in which the Inter-American Court of Human Rights recognised the interrelationship between environmental protection and the rights of communities in circumstances where formal title to the affected territory had been issued to third parties. Similarly, in the case of:- “African Commission on Human and Peoples' Rights – Versus - Republic of Kenya Application No. 006/2012”, the African Commission determined the rights of the Ogiek People despite the fact that titles to part of the land they were claiming had been issued to third parties. 294. It follows therefore, that while the Petitioners’ lack of proprietary interest in the land may be relevant to any claim of ownership to the land, it does not, without more, disentitle them from invoking their independent constitutional right to a clean and healthy environment under Article 42. Equally, the absence of a proprietary interest in the land does not absolve the Respondents from their constitutional and statutory obligations to protect the environment and to ensure that the Petitioners JUDGMENT ELCPET. E017 OF 2022 Page 163 of 192 HON. JUSTICE L.L. NAIKUNI

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are not subjected to environmental degradation that violates or threatens their rights under Article 42. (iv) Article 10, Article 73 and Article 75 295. Having considered the foregoing constitutional provisions and the conduct of the Respondents in relation thereto, the Court now turns to the allegations concerning the conduct of State officers and leaders under Articles 73 and 75 of the Constitution, and the national values and principles of governance under Article 10. These provisions are considered together because the standards of leadership and integrity prescribed under Articles 73 and 75 are closely connected to the national values and principles of governance under Article 10, against which the conduct of the Respondents may ultimately be assessed. 296. The Petitioner further alleges that the Respondents violated Article 10 of the Constitution by failing to uphold and give effect to the national values and principles of governance in the discharge of their respective mandates. The national values and principles of governance set out under Article 10 bind all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, or make or implement public policy decisions. Article 10 provides:10. National values and principles of governance (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include— JUDGMENT ELCPET. E017 OF 2022 Page 164 of 192 HON. JUSTICE L.L. NAIKUNI

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(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. 297. Of particular relevance to the present Petition are the national values and principles of governance relating to the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, good governance, integrity, transparency, accountability and sustainable development. These values and principles provide the constitutional framework within which State organs, State officers and public officers are required to exercise their respective mandates. The Court must therefore consider whether, on the evidence before it, the acts and omissions of the Respondents were consistent with these constitutional standards. 298. The Petitioner’s complaint under Article 10 of the Constitution is premised on the contention that, in the manner in which the Respondents dealt with the environmental concerns affecting the residents of Mwakirunge, they failed to uphold the national values and principles of governance binding upon them. In particular, the Petitioner alleges that the Respondents’ conduct was inconsistent with the principles of public participation, human rights, good governance, transparency, accountability and sustainable development, including through the alleged mismanagement of public funds allocated for the provision and management of environmental services. The question for JUDGMENT ELCPET. E017 OF 2022 Page 165 of 192 HON. JUSTICE L.L. NAIKUNI

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determination is therefore whether, having regard to the evidence and the circumstances surrounding the impugned acts and omissions, the Respondents failed to discharge their constitutional obligations in a manner consistent with the values and principles prescribed under Article 10 (2) of the Constitution. 299. Before determining this question, it is necessary to consider the constitutional standards governing the conduct of State officers and leaders under the provision of Articles 73 and 75 of the Constitution. These provisions impose obligations of integrity, responsibility, accountability and proper conduct upon persons exercising public office. The Court will therefore examine whether the conduct of the Respondents, to the extent that they are subject to these provisions, fell short of the standards prescribed by the Constitution. 300. Article 73 of the Constitution provides that authority assigned to a State officer is a public trust to be exercised in a manner that demonstrates respect for the people, brings honour to the nation and dignity to the office, and promotes public confidence in the integrity of the office. The provision further requires State officers to serve the people rather than themselves and to exercise the authority entrusted to them in accordance with the principles of leadership and integrity prescribed by the Constitution. 301. Article 75 complements these obligations by requiring State officers to behave, whether in public or official life, in a manner that avoids any conflict between personal interests and public duties and does not demean the office they hold. The provision is therefore directed at JUDGMENT ELCPET. E017 OF 2022 Page 166 of 192 HON. JUSTICE L.L. NAIKUNI

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ensuring that the exercise of public office remains guided by integrity, responsibility and fidelity to the public interest. 302. In the present case, the Court has already found, upon consideration of the evidence, that the 1st and 4th Respondents failed to take all the measures available to them within their respective mandates to curb the pollution emanating from the Mwakirunge Dumpsite, resulting in an infringement of the residents’ right to a clean and healthy environment under Article 42. The Court has further found that the 1 st, 3rd and 5th Respondents were in breach of the Petitioner’s right to access information, while the evidence concerning the utilisation of public resources raised substantial concerns regarding accountability and the discharge of the constitutional and statutory audit mandate. 303. Having considered the pleadings, the evidence adduced before this Court, the applicable constitutional and statutory framework, and the submissions of the parties, I find that the Petitioner has proved, on a balance of probabilities, that the Respondents, in the discharge of their respective mandates, failed to uphold the constitutional and statutory obligations applicable to the management of the Mwakirunge dumpsite. The evidence demonstrates that the Respondents’ respective acts and omissions contributed to, or failed to adequately prevent, address and remedy, the environmental harm complained of, and consequently resulted in the infringement of the rights of the Mwakirunge Community Residents. 304. In particular, the Court has found that the 1 st and 4th Respondents failed to take adequate measures within their respective mandates to prevent and control the pollution and environmental degradation arising from the JUDGMENT ELCPET. E017 OF 2022 Page 167 of 192 HON. JUSTICE L.L. NAIKUNI

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operation of the Mwakirunge dumpsite. The Court has further found that the right of access to information under the provision of Article 35 of the Constitution was violated, and that there was a failure to satisfactorily account for or demonstrate the prudent and responsible utilisation of public resources allocated towards the management of the dumpsite. The Court is therefore satisfied that the constitutional and statutory violations alleged by the Petitioner have, to the extent hereinabove stated, been established. 305. The Court further finds that the conduct of the Respondents, considered cumulatively and in light of the constitutional duties imposed upon State organs, State officers and public officers, fell short of the national values and principles of governance under Article 10 of the Constitution, including good governance, integrity, transparency, accountability, human rights and sustainable development. 306. Thus, the Court consequently finds that the Petitioner has established the alleged violations of Articles 10, 35, 42, 73, 75 and 201 of the Constitution, together with the relevant statutory provisions discussed herein, to the extent specifically determined in this Judgement. ISSUE No. (d): Whether the Petitioner is entitled to the reliefs sought on the present Petition 307. The reliefs sought by the Petitioner are numerous and arise from different aspects of the grievances advanced in the Petition. For purposes of determination, the Court has grouped together those prayers which are founded on a common factual and legal basis, and which can conveniently be considered together without occasioning prejudice to any of the parties. The grouping is intended to facilitate a coherent JUDGMENT ELCPET. E017 OF 2022 Page 168 of 192 HON. JUSTICE L.L. NAIKUNI

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determination of the reliefs sought, having regard to the findings already made by the Court on the substantive issues. 308. The first relief sought by the Petitioner is a declaration that the Mwakirunge Dumpsite sits on community land. As already determined by this Court, although the Mwakirunge Community historically occupied the area prior to the establishment of the dumpsite, the evidence before the Court establishes that the land was subsequently demarcated and allocated to the Municipal Council of Mombasa, the predecessor of the 1 st Respondent. A Certificate of Title, Grant No. CR 41964, was subsequently issued on 2nd February, 2007 in respect of L.R. No. MN/II/10071. The title has not been successfully challenged before this Court. In the circumstances, the Court cannot issue a declaration that the Mwakirunge Dumpsite sits on community land. The historical occupation of the land by members of the Mwakirunge Community, without more, does not displace the registered proprietary interest of the 1 st Respondent. Accordingly, this prayer is thus declined. 309. Connected to this issue of ownership is Prayer (6), where he seeks a permanent injunction restraining the 1st Respondent or any state or private organisation or any person not mentioned in this suit working either individually or by their staff or their agents or their representatives from dumping wastes of any nature or form on Mwakirunge site. The Court has already found that the manner in which the Mwakirunge Dumpsite has been operated resulted in environmental degradation and has infringed the right of the Mwakirunge Community Residents to a clean and healthy environment guaranteed under Article 42 of the Constitution. The Court has also found that the 1 st Respondent failed to JUDGMENT ELCPET. E017 OF 2022 Page 169 of 192 HON. JUSTICE L.L. NAIKUNI

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comply fully with the applicable environmental requirements governing the operation and management of the dumpsite. 310. Notwithstanding the foregoing finding, the Court must have regard to the fact that the land upon which the Mwakirunge Dumpsite is situated is owned by the 1st Respondent. The Court cannot, merely on account of the environmental violations established in these proceedings, issue an injunction that effectively restrains the registered proprietor from utilising its own land altogether. The proprietary interest of the 1 st Respondent is recognised and protected by the Constitution and the law, subject always to the obligation to exercise that interest in accordance with the Constitution and applicable environmental legislation. 311. The appropriate question is therefore not whether the 1st Respondent may utilise its land, but whether such utilisation may lawfully continue in a manner that violates or threatens the constitutional right to a clean and healthy environment. Having found that the operation of the Mwakirunge Dumpsite, in its present circumstances, has resulted in environmental harm and a violation of Article 42, the Court cannot grant the blanket injunction sought by the Petitioner. The prayer for a permanent injunction restraining the 1st Respondent and others from dumping waste of any nature or form on the Mwakirunge site is consequently declined. 312. The Court's refusal to grant the permanent injunction in the terms sought does not, however, absolve the 1st Respondent from its constitutional and statutory obligations to protect the environment. The 1 st Respondent remains bound to ensure that any use of the land for waste management is undertaken in strict compliance with the Constitution, EMCA, the JUDGMENT ELCPET. E017 OF 2022 Page 170 of 192 HON. JUSTICE L.L. NAIKUNI

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applicable environmental regulations, and any lawful directions or orders issued by the relevant regulatory authorities. 313. In addition, under Prayer Number 7, the Petitioner seeks an order compelling the 1st, 2nd, 3rd and 4th Respondents to within ninety (90) days of the Court’s Judgement to seek an alternative dumping site. Although the Court has found that the operation of the Mwakirunge Dumpsite, in the manner established by the evidence, has resulted in environmental harm and infringed the right to a clean and healthy environment under Article 42 of the Constitution, as indicated above, the 1 st Respondent has evinced a clear registered proprietary interest in the land upon which the dumpsite sits. 314. The Court is alive to the fact that identification and acquisition of an alternative waste disposal site involves considerations of land ownership, planning, environmental assessment, public participation, technical suitability and allocation of public resources, matters which fall principally within the mandate of the relevant authorities. Thus, the Court is not persuaded that it would be appropriate to compel the Respondents, by a mandatory order, to secure an alternative site within a prescribed period. But perhaps, more importantly, the order sought cannot be granted merely as a consequence of the finding that the 1st Respondent is the proprietor of the land. In the circumstances, and having regard to the nature of the relief sought, the Court finds that the prayer compelling the Respondents to seek an alternative dumping site within ninety (90) days is declined. Once more, I must reiterate that this does not relieve the Respondents of their continuing constitutional and statutory obligations to ensure that the use and management of the Mwakirunge JUDGMENT ELCPET. E017 OF 2022 Page 171 of 192 HON. JUSTICE L.L. NAIKUNI

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Dumpsite does not violate the right to a clean and healthy environment or otherwise contravene the applicable environmental laws and regulations. 315. Under Prayer Number 2, the Petitioner seeks a declaration that the 1 st, 2nd, 3rd, 4th, 5th and 6th Respondents violated the law and the rights of the Mwakirunge Community Residents. Having found that the 1st and 4th Respondents violated the residents’ right to a clean and healthy environment under the provision of Article 42 of the Constitution, that the 2nd, 3rd and 5th Respondents violated the Petitioner’s right of access to information under Article 35, and that the 6th Respondent failed to discharge its constitutional and statutory mandate in relation to the matters raised before it, the Court is satisfied that the declaration sought is merited. Further, having found that the conduct and omissions of the Respondents, to the extent established by the evidence, were inconsistent with the constitutional and statutory obligations considered herein, the Prayer Number 2 is allowed. 316. Under Prayer Number 3, the Petitioner seeks an order compelling the 1 st, 2nd, 3rd and 4th Respondents, within sixty (60) days of the Judgment, to engage an independent private environmental audit firm to ascertain the extent and degree of environmental degradation occasioned by the Mwakirunge dumpsite and to quantify, in monetary terms, the damage caused, including the costs of any necessary remedial measures required to safeguard the environmental rights of the Mwakirunge Community Residents. In view of the Court’s finding that the operation and management of the dumpsite has occasioned environmental degradation and infringed the residents’ right to a clean and healthy environment, the JUDGMENT ELCPET. E017 OF 2022 Page 172 of 192 HON. JUSTICE L.L. NAIKUNI

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Court finds this relief necessary for purposes of establishing the extent of the harm and the measures required for its remediation. Therefore, Prayer Number 3 is allowed in the terms sought. 317. Under Prayer Number 5 whereby the Petitioner seeks an order for environmental restoration of the entire dumpsite and the surrounding affected areas pursuant to Section 111(1) and (2) of EMCA. The Court considers that the nature and extent of restoration required ought properly to be informed by the findings of the independent environmental audit contemplated under Prayer Number 3, particularly as regards the extent of contamination, the affected areas, the nature of the environmental damage and the remedial measures necessary. Accordingly, the Court shall defer determination of prayer (5) pending the submission and consideration of the report contemplated under Prayer Number 3, upon which the Court shall issue such further or consequential orders on environmental restoration as may be necessary. 318. Prayers 8, 9 and 10 are considered together as they principally concern allegations of mismanagement, misappropriation and possible unlawful use of public funds allocated to the Mwakirunge dumpsite, and seek the intervention of the 6th Respondent and the Interested Parties in the exercise of their respective constitutional and statutory mandates. The Court is, however, mindful that each of these institutions is established under the Constitution or statute with an independent mandate, and that the Court must therefore distinguish between an order requiring the performance of a constitutional or statutory duty and an order directing an independent institution on how, or with what outcome, that mandate should be exercised. JUDGMENT ELCPET. E017 OF 2022 Page 173 of 192 HON. JUSTICE L.L. NAIKUNI

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319. As regards prayer number 8, the Petitioner seeks an order directing the 6 th Respondent to undertake a forensic audit into the financial activities of the 1st and 2nd Respondents in relation to specified budgetary allocations for the Mwakirunge dumpsite and to publicly publicise its findings. Having regard to the Court’s earlier findings on the constitutional and statutory mandate of the Auditor-General, I am not persuaded that such an order can properly issue in the terms sought. The Auditor-General is an independent constitutional office whose mandate includes determining the scope and extent of an audit and undertaking such investigations as may be necessary for the proper discharge of its functions. While this Court may intervene where there is demonstrated failure to perform a mandatory constitutional or statutory duty, it cannot dictate that the Auditor-General undertake a particular forensic audit, prescribe the manner in which the audit is to be conducted, or predetermine the findings to be made. Therefore, Prayer number 8 is declined in its present form. 320. With respect to Prayer Number 9, the Petitioner seeks an order directing the 1st and 2nd Interested Parties, namely the Ethics and Anti-Corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI), to independently and separately undertake forensic investigations into the financial activities of the 1 st and 2nd Respondents in relation to the present Petition and the seven (7) financial years’ audit reports annexed to the Petition. Unlike the relief sought against the Auditor-General, the prayer principally seeks the activation of the investigative mandates of the two ( 2 ) institutions. The Court has already found that the evidence before it raises legitimate concerns regarding the utilisation and JUDGMENT ELCPET. E017 OF 2022 Page 174 of 192 HON. JUSTICE L.L. NAIKUNI

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accountability of public funds allocated to the Mwakirunge dumpsite. In the circumstances, and without expressing any concluded view as to whether any criminal or anti-corruption offence was committed, the Court finds that it is appropriate for the relevant investigative bodies to consider and act upon the matters falling within their respective mandates. 321. Accordingly, Prayer Number 9 is allowed to the extent that the 1 st and 2nd Interested Parties shall, each independently and in accordance with their respective constitutional and statutory mandates, consider and investigate the allegations relating to the financial activities of the 1 st and 2nd Respondents arising from the matters pleaded. However, seeing as that is their core mandate, this court shall abstain from making any further orders or directions on the outcome or consequence of the said investigations, and will leave it to the said agencies to determine the best way forward. For the avoidance of doubt, this order does not direct either Interested Party as to the outcome of any investigation, but merely requires them to exercise their respective lawful mandates in relation to the matters raised in the Petition. 322. As regards Prayer Number 10, the Petitioner seeks an order compelling the 1st Interested Party to produce before this Court, within thirty days, the findings and progress of its investigations concerning the alleged misappropriation of a sum of Kenya Shillings Eighty Two Million Two and Eight Thousand Five Ninety Nine Hundred (Kshs. 82,208,599.00/=) relating to garbage collection contracts for the financial years 2014 – 2016, together with its intended cause of action. The Court is persuaded that it is appropriate to compel the 1st Interested Party to disclose JUDGMENT ELCPET. E017 OF 2022 Page 175 of 192 HON. JUSTICE L.L. NAIKUNI

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investigative material or to dictate the manner or timing of the exercise of its prosecutorial or investigative functions. 323. In the circumstances of the present Petition, and having regard to the material placed before the Court, I find that the appropriate relief is to compel the 1st and 2nd Interested Parties to disclose the outcome or substance of an investigation, but to require it to consider and, where appropriate in respect of the alleged misappropriation of a sum of Kenya Shillings Eighty Two Million Two and Eight Thousand Five Ninety Nine Hundred (Kshs. 82,208,599.00/=) relating to the garbage collection contracts for the financial years 2014–2016. Prayer Number 10 is therefore allowed in the form sought, without prejudice to the 1st Interested Party exercising its lawful mandate in respect of the allegations raised before this Court. 324. Prayer Number 11 seeks an order directing the Respondents and the 1 st and 2nd Interested Parties to within Ninety (90) days of the court’s Judgment to file affidavit in this court detailing out their compliance with prayers 3, 5, 7, 8, 9 and 10 above. This prayer is only allowed for the reliefs that have been allowed herein with a fixed timeline, which will be as per the directions made per the relief issued. 325. Finally, the court must consider Prayer no. 4, which is a declaration that those individuals and persons and families whose rights were violated are entitled to seek compensation. Here, the Court has to assess whether special, general exemplary and/or punitive damages as assessed by Court should be awarded to the Petitioners. And whether interest should be awarded on damages and costs this Court has considered the fact that the Petitioner have established a wide range of violations of their rights . JUDGMENT ELCPET. E017 OF 2022 Page 176 of 192 HON. JUSTICE L.L. NAIKUNI

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Notably, Petitioner has established that there has been the extreme pollution at the Mwakirunge dumpsite. 326. The Court has considered the difficulties in assessing such compensation. The case of “Citizens Agaianst Violence (CAVI) & 14 Others – Versus – Attorney General & 3 Others (2023) KEHC 17591 (KLR), held as follows:“An action, such as the one before me, brought under Article 23 of the Constitution seeking enforcement, protection and preservation of fundamental rights is one borne of the realms of public law. Traditionally, the objectives of public law can be regarded as an acknowledgement that civilization is founded upon the power of the public. The fundamental rights and freedoms of citizens are not only guaranteed but are also protected and preserved. The rights are guaranteed through the constitutional and statutory provisions providing for the rights; they are to be protected by the various state ministries, departments and agencies (MDAs) so charged by the enabling statutes; and it is to preserved by the Judiciary by way of a declaratory order or in some instances, penalizing the wrongdoer and fixing the liability for the public wrong on the State when it has failed in its public duty to protect the fundamental rights of the Citizens. Monetary awards in damages in such cases is to be understood as a relief by an order of making “Monetary amends” under the public law for the wrong done in breach of public duty or by not protecting the fundamental rights of the citizen, or by subjecting the citizen to acts which amount to infringement of the Constitution”. 327. Similarly, in the case of “Malindi Residents Development Group case (Supra)”, the Court cited the case of: Rhoda S. Kiilu – Versus – Jiangxi Water and Hydropower Construction Kenya Limited (2019) eKLR” where it was stated as follows:“As for exemplary damages they are placed at the discretion of the Court, though they are awarded with some degree of caution and in limited 4situations. Ochieng J stated in the case of Mikidadi – Versus – Khaigan & Another (2004) eKLR 496 that …”Exemplary damages are only to be awarded in limited JUDGMENT ELCPET. E017 OF 2022 Page 177 of 192 HON. JUSTICE L.L. NAIKUNI

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instances namely: a). Oppressive arbitrary or unconstitutional action by servants of government; b). Conduct calculated by the Defendants to make him a profit which may well exceed compensation payable to the Plaintiff or c). Cases in which the payment of exemplary damages is authorised by statute” 328. Further to that, the Court, in “the Malindi Residents Development Group Case (Supra)” held as follows:“133. This court has in various cases addressed itself to the apportionment of compensation as a remedy to constitutional violation. In Wamwere & 2 others – Versus - Attorney General SC Petition No 34 & 35 of 2019 [2024] KECA 487 (KLR), this court held that the crafting of remedies in human rights adjudication goes beyond the realm of compensation for loss as it is principally for vindicating rights. In that case, the court further held that though the appellants did not lead any evidence of the loss they may have suffered due to the violation of their right and freedom from inhuman treatment, it was important for the court to vindicate and affirm the importance of the violated rights. In CMM (Suing as the next friend and on behalf of CWM) & 6 others – Versus - Standard Media Group & 4 Others, [2023] KESC 68 (KLR) this court equally addressed itself to what a trial court should do in its assessment of an award of compensation in constitutional rights violation claims when it held:“…All the trial court was expected to do in considering this prayer was to assess what, in the circumstances of the case would be the appropriate compensation, or what other relief would vindicate the Appellants’ contravened rights. Examples of factors the court would have taken account of include the fact that the violations related to children; that some of the children had to transfer from the school; some were ridiculed, and being minors they were bound to suffer distress, trauma, anguish, fear and lowered self-confidence. On the other hand, exculpatory factors to consider would be the fact that some of the respondents, upon learning of the complaints about their publications immediately pulled down the offending story. In the result, it was erroneous for the two courts below to ignore settled principles for the award of compensation in constitutional rights violation claims; namely, that once the burden of proving a violation was discharged, it was not necessary for the appellants to prove any damage or loss so as to be entitled to any of the reliefs contemplated in article 23 (3)…..” JUDGMENT ELCPET. E017 OF 2022 Page 178 of 192 HON. JUSTICE L.L. NAIKUNI

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329. 134. In Musembi & 13 Others – Versus - Moi Educational Centre Co Ltd & 3 others SC Petition No 2 of 2018 [2021] KESC 50 (KLR), this Court in overturning the decision of the Court of Appeal held that the questions and issues that a court has to consider in order to make an award of damages with regards to constitutional violation is manifestly different to what the court would consider in say, tortious or civil liability claim. The court distinguished the same as follows; 330. “…In the latter, the issues are clear cut and quantification of the appropriate award is in most instances, straight forward. The same, however, is not true of constitutional violation matters, such as the instant one. Quantification of damages in such matters does not present an explicit consideration of the issues; other issues such as public policy considerations also come into play. A court obligated and mandated in evaluating the appropriate awards for compensation in constitutional violations does not have an easy task; there is no adequate damage standard that has been developed in our jurisprudence that recognizes that an award for damages in constitutional violations is quite separate and distinct from other injuries. In this regard, the Court of Appeal was unclear of what other material that the Petitioners needed to present before the trial court to establish that there was a violation of their constitutional rights by the Respondents, and that the court therefore abused its discretionary powers in issuing the award of damages. In the event and following our reasoning in Martin Wanderi & 106 Others – Versus - Engineers Registration Board & 10 others, SC Petition No.19 of 2015 [2018] eKLR we must overturn the appellate court’s decision on this issue…” 331. The Petitioner has provided evidence of the harm suffered by the Mwakirunge Community Residents which range from chronic illnesses, accidents occasioned by the garbage truck and in other instances death. While it may be hard to assess compensation for the adverse occasioned to the residents, the lack of strict proof by way of empirical data should not bar to the award of damages where it has been proved that the Respondents have been found to be liable for the said pollution. In the case of:- “Export Processing Zone Authority & 10 others (Suing on JUDGMENT ELCPET. E017 OF 2022 Page 179 of 192 HON. JUSTICE L.L. NAIKUNI

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their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) (Supra)” the Supreme Court pronounced itself as follows:132. In exercising its mandate under Article 70 (2), article 70(3) guides the court when it provides as follows; “(3) For the purpose of this article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury”. 332. In addition, the Supreme Court further held that:140. We have already outlined above that under the provisions of article 70 (3) of the Constitution, an applicant does not have to demonstrate that he/she has incurred loss or suffered injury. From the decisions cited it is clear that even in the absence of clear evidence to quantify the damage caused by the breach, courts may still award remedies based on the principle that the violation of constitutional rights itself warrants redress. These remedies can include a declaratory relief, nominal damages, or compensatory damages assessed on a more general basis, particularly in cases where the nature of the harm is difficult to quantify precisely. This ensures that the breach does not go unaddressed, upholding the integrity of the constitutional rights framework and providing some measure of justice to the aggrieved party. 141. On our part, we also find that there was sufficient evidence for the trial court to make a finding on compensation. The trial court had the opportunity to observe seven witnesses presented by the 2nd to 11th appellants and observe their injuries; the Deputy Government Chemist (PW - 8) provided a report detailing samples taken from fifty (50) residents of Owino-Uhuru Village which indicated elevated blood levels; soil, dust and water tested indicated high levels of lead which were hazardous especially for children in play areas and for persons who spend time in enclosed places. The Report of The Standing Committee on Health on The Owino- Uhuru Public Petition recommended the immediate cleaning of the environment including detoxifying and restoring the soil; the replanting of destroyed trees; the immediate testing of all residents of Owino - Uhuru Village for lead exposure and the removal of hazardous waste slug the plant had disposed of over the years and JUDGMENT ELCPET. E017 OF 2022 Page 180 of 192 HON. JUSTICE L.L. NAIKUNI

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continued to dispose of at Mwakirunge dumpsite. The Task Force on Decommissioning Strategy for Metal Refinery EPZ Limited found sufficient evidence of lead exposure at the factory and amongst the residents of Owino- Uhuru Village. It is also notable that the scientific findings on infringements of the rights of the residents of Owino-Uhuru Village is not disputed by NEMA, EPZA, Ministry of Health and Environment and the County Government of Mombasa.” 333. This court is guided by the Supreme Court decision in the case of:“Export Processing Zone Authority (Supra)” further explained the matters to be considered in the assessment of compensation where it held as follows:- “137. On the other hand, in constitutional claims, where fundamental rights have been violated, the court takes a broader approach to the assessment of damages. It considers various factors including; a. the nature of the violation. b. the length of time the alleged violation has taken. c. impact on the victim and whether there is a direct harm. d. the broader implications of the case, including the need to deter future violations, uphold the rule of law, and ensure that public authorities or private parties respect constitutional rights. 138.These differences in the approach between tortious claims and constitutional claims reflect the varying nature of the harm and the different objectives of each type of claim. While tortious claims are primarily about compensating specific losses, constitutional claims often aim to address broader issues of justice and the protection of fundamental rights.” 334. From the evidence presented to this court, this court is aware that the Mwakirunge dumpsite and the effects of pollution have been there for a very long time. Secondly, the Mwakirunge dumpsite is still operational to date, thus the Residents’ right to a clean and healthy environment is continuously being violated. Despite the ongoing daily pollution, the JUDGMENT ELCPET. E017 OF 2022 Page 181 of 192 HON. JUSTICE L.L. NAIKUNI

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Respondents have been unwilling to account for the public funds allocated for the management of the dumping site. NEMA on the other hand, decided to look the other way and allow the dumping of the waste to continue without any regard to the issues raised by the Petitioner herein, the Mwakirunge Community Residents and the stakeholders. 335. The law is clear that, where there is a right there is a remedy. And as explained in Export Processing Zones Case (Supra), damages are meant to act as deterrent to certain deleterious acts and omissions of the Respondents. The Respondents here are all state agencies, the Constitution places positive obligations upon the State and State agencies to promote and protect the right to a healthy environment by taking. Having failed to abide by their respective mandates, said State agencies are not exempt from the application of the polluter pays principle. 336. Accordingly, the Court allows Prayer Number 4 and declares that those individuals, persons and families who establish that they suffered loss, injury or damage as a result of the violations established in this Petition are entitled to seek compensation in accordance with the applicable law. For avoidance of doubt, this declaration does not, in itself, determine the nature or quantum of compensation payable to any particular person, which shall be subject to proof of the particular loss, injury or damage suffered and the applicable legal principles. ISSUE No. (e): Who shall bear the costs of the Petition? JUDGMENT ELCPET. E017 OF 2022 Page 182 of 192 HON. JUSTICE L.L. NAIKUNI

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337. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of legal action and proceedings in any litigation. 338. According to the Black Law Dictionary, “Cost” is defined to mean:- “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. 339. The provision of Section 27(1) of the Civil Procedure Act, Cap. 21 vests the Court with discretion in the award of costs, notwithstanding the general principle that costs follow the event. By the events, it means the results or outcome of any legal action or proceedings thereafter.The proviso to the section expressly permits the Court, for good reason, to depart from that general rule. The discretion must, however, be exercised judicially, having regard to the circumstances and nature of the proceedings. 340. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides: “(1) The award of costs is at the discretion of the Court. (2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.” 341. In the case of “Reids Heweet & Company – Versus - Joseph AIR 1918 cal. 717” and “Myres – Versus - Defries (1880) 5 Ex. D. 180”, the House of the Lords noted: - JUDGMENT ELCPET. E017 OF 2022 Page 183 of 192 HON. JUSTICE L.L. NAIKUNI

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“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..” 342. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: “……….the basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”. 343. The court retains discretion to depart from the general rule and may deny costs where public interest, constitutional litigation, or equitable considerations justify such departure. In constitutional or environmental matters brought in the public interest, courts often order each party to bear its own costs to avoid discouraging bona fide litigants. See “Kenya Bus Services Ltd & 2 others – Versus - Attorney General & 2 others [2005] eKLR”; “Okiya Omtatah Okoiti – Versus - Attorney General & another [2020] eKLR”. The Court notes that where a claim is found to be frivolous, vexatious or brought in bad faith, courts may award costs against the Claimant to deter abuse of process. 344. The present proceedings constitute public interest litigation. The Petition was instituted to vindicate the constitutional right to a clean and healthy environment of the residents of Mwakirunge and to interrogate the JUDGMENT ELCPET. E017 OF 2022 Page 184 of 192 HON. JUSTICE L.L. NAIKUNI

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discharge of constitutional and statutory obligations by state agencies in relation to environmental protection, waste management, public finance and accountability. In the case of:- “Mulungusi Muthembwa Mutunga – Versus - Managing Director, Kenya Wildlife Service & 2 Others [2017] KEHC 7044 (KLR)”, the Court, while considering Section 27 of the Civil Procedure Act in the context of constitutional litigation, recognised that public interest litigation generally attract no award of costs. 345. In the circumstances of the present Petition, I consider that the public interest nature of the proceedings, the environmental rights implicated, and the constitutional obligations sought to be enforced constitute sufficient reason to depart from the general rule that costs follow the event. The Petition was not instituted for the advancement of a purely private or commercial interest, but concerned matters affecting the wider community and the enforcement of constitutional and environmental obligations. I therefore find it just and equitable that no party should be burdened with the costs of these proceedings. Accordingly, each party shall bear its own costs of the Petition. XVIII. Conclusion & Disposition 346. Ultimately, upon conducting an indepth analysis of the framed issues herein, the Honourable Court finds based on the Principles of the Preponderance of Probabilities and the balance of convenience, I hold that the Petitioner has by and large been able to establish its case. 347. For avoidance of any doubt, I proceed to specifically direct as follows:- JUDGMENT ELCPET. E017 OF 2022 Page 185 of 192 HON. JUSTICE L.L. NAIKUNI

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a) THAT Judgement be and is hereby in favour of the Petitioner vide the Constitution Petition dated 9th May, 2022 but whereby the prayers sought are partially allowed as stated herein below. b) THAT the Honourable Court finds that the suit land is legally and absolutely registered in the name of the 1 st Respondent with all indefeasible right, title and interest vested in it by law and hence declines to make a DECLARATION that Mwakirunge Dumpsite sits on community land. Thus, the prayer to compel the 1st, 2nd, 3rd and 4th Respondents to seek an alternative dumping site be and is hereby declined. c) THAT notwithstanding the above, the Honourable Court proceeds to make a DECLARATION that the acts of omission and commission on the part of the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents with regard to:(i). In failing to developing and maintaining a safe solid and liquid management system at the Mwakirunge; and ii). In failing to prevent the proper management and disposal of the solid and liquid waste at the Mwakirunge dumping site hence utterly exposing the community residents living within environmental the said area degradation and were causing a breach wanton of their Constitutional obligations under the provision of Article 69 (1) (d) and (g) of the Constitution of Kenya, 2010. d) THAT the Honourable Court proceeds to make a DECLARATION that the acts of omission and commission on the part of the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents with regard to:- JUDGMENT ELCPET. E017 OF 2022 Page 186 of 192 HON. JUSTICE L.L. NAIKUNI

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(i). in failing to developing and maintaining a safe solid and liquid management system at the Mwakirunge; and ii). In failing to prevent the proper management and disposal of the solid and liquid waste at the Mwakirunge dumping site was a violation of their fundamental rights to the highest attainable standard of health and safety as it is enshrined under Article 43 ( 1 ) ( b ) of the Constitution of Kenya, 2020. iii). In failing to prevent the proper management and disposal of Mwakirunge the solid dumping and site liquid was a waste at the violation of the community residing with the Mwakirunge area and their fundamental rights to the highest attainable standard of clean, healthy environment, health and safety as it is enshrined under Articles 42 ( a ) & (b) and 43 ( 1 ) ( b ) of the Constitution of Kenya, 2010. e) THAT the Honourable Court proceeds to make a DECLARATION that the acts of omission and commission on the part of the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents have violated the fundamental rights of the Community and services of reasonable quality within the meaning of the provision of Article 46 ( 1 ) ( b ) of the Constitution of Kenya, 2010. f) THAT the Honourable Court proceeds to make a DECLARATION declaring that the acts of omission and commission on the part of the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents have violated the fundamental rights of the Petitioner to obtain information from the said Respondents to enable him gain full benefit of proper solid and liquid waste disposal services and to protection of the health, safety and economic interests of the Community residents of Mwakirunge as provided for under JUDGMENT ELCPET. E017 OF 2022 Page 187 of 192 HON. JUSTICE L.L. NAIKUNI

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the Provision of Article 46 ( 1 ) ( b ) & ( c ) of the Constitution of Kenya, 2010. g) THAT the Honourable Court proceeds to make a DECLARATION declaring that the acts of omission and commission on the part of the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents have violated, threatened and denied the Petitioner and the Community residents of Mwakirunge their fundamental rights to access publishing and publication of all information concerning proper solid and liquid waste disposal services as articulated under the provision of Article 35 ( 1 ) ( a ) of the Constitution of Kenya, 2010. h) THAT taking that the suit land is legally registered in the names of the 1st Respondent, it declines to grant a PERMANENT INJUNCTION orders restraining the 1st Respondent or any state or private organisation or any person not mentioned in this suit working either individually or by their staff or their agents or their representatives from dumping wastes of any nature or from on Mwakirunge site. i) THAT in order to attain a scientific, technical and proper management system on modern and Internationally adopted and acceptable conservation economic mode and encompassing preservation, standards, the high environmental clean health and safety Honourable Court makes the following directions to include but not limited to:i. The 1st Respondent be and are hereby directed to undertake immediately commence the construction of a concrete perimeter wall to detailed of at least six (6) metres high and with proper razor wire surrounding it on top, a well secured strong main entrance and exit gates – strict access regulations well formulated - around the JUDGMENT ELCPET. E017 OF 2022 Page 188 of 192 HON. JUSTICE L.L. NAIKUNI

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Mwakirunge Dumping site to be maned on twenty four hours by qualified and adequate security and other human resource manpower to have been completed WITHIN THE NEXT TWELVE (12) MONTHS without fail. In so doing, it shall hive off the area where the grave – yards exists. ii. The 1st Respondent be and hereby directed to immediately provide designs and to commence the development and installation of ultra modern and high technologically accepted by the international standards of waste and solid incinerators for burning of current and future dry and solid waste materials at the Mwakiruge Dumping Site for the County of Mombasa which ensures human safety and healthy standards. iii. The 4th Respondent - NEMA directed to strictly perform its duties under the EMCA and the Environmental Management and Coordination Regulations of 2006 and to file in Court every three ( 3 ) months a report on the progress made on the solid and liquid waste disposal at the Mwakiruge Dumping site. iv. The 4th Respondent - NEMA - directed to immediately prescribe and formulate measures for the management and safe disposal of waste in an environmentally sound manner at the Mwakirunge Dumping site in accordance with the provision of Section 86 of EMCA read with Part 2 ( 2 ) ( g ) of the Forth Schedule to the Constitution of Kenya, 2010 and Environmental Management and Co ordination (Waste Management) regulations of 2006. v. 1st Respondent and the 4th Respondent - NEMA directed to JUDGMENT ELCPET. E017 OF 2022 ensure there is Page 189 of 192 maximum EVIRONMENTAL HON. JUSTICE L.L. NAIKUNI

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RESTORATION of the entire Mwakirunge dumpsite site and the surrounding affected areas pursuant to the provision of Section 111 (1) and (2) of EMCA Act. vi. The 1st and the 4th Respondent - NEMA to establish and formulate modern and scientific methods as per the international standards of landfill and re – cycling of wastes – liquid and solid materials for economic use and aimed at waste reduction, separation of biodegradable and organic waste and prioritise the implementation of recycling strategies. vii. The 1st, 2nd, 3rd, 4th and 5th Respondents directed to be filing comprehensive report in Court every three (3) months indicating the progress made on matter of the management of the solid and liquid disposal at the Mwakirunge Dumping Site. viii. The 1st , undertake NEMA and programme 5th Respondents intended to directed create to public awareness and civic education to enhance environmental management, conservation and preservation – pollution and degradation and in particular pertaining to solid and waste management and disposal at the Mwakiruge Dumping Site. j) THAT an ORDER DIRECTING the 1st and 2nd Interested Party to immediately and separately and independently pursuant to their constitutional mandate launch forensic investigations into the financial activities of the 1st and 2nd Respondents in respect to this suit and in respect to the seven (7) financial years audit reports as annexed to this Petition. JUDGMENT ELCPET. E017 OF 2022 Page 190 of 192 HON. JUSTICE L.L. NAIKUNI

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k) THAT an ORDER COMPELLING the 1 st Interested Party to WITHIN THE NEXT ONE HUNDRED & EIGHTY (180) DAYS of the Judgment delivered by this Honourable Court to produce before the Honourable Court the findings and progress of its investigations on the alleged misappropriation of Kenya Shillings Eighty Two Million Two Thousand and Eight Five Ninety Nine Hundred (Kshs. 82,208,599/=) public funds between the financial years 2014 - 2016 which involved garbage collection contract as annexed to this Petition including the 1st Interested Party’s next cause of action. l) THAT for the violation of the Constitutional rights of the Petitioner and the Community resident members of the Mwakirunge (Estimated to be 200 persons or thereabout) be and are hereby awarded a sum of Kenya Shillings Three Hundred and Fifty Million (Kshs. 350, 000, 000/=) in compensatory damages to be borne exclusively by the 1 st & 2nd Respondents. The 3rd, 4th, 5th and 6th Respondents, the 1st and 2nd Interested Parties herein are exonerated from any damages. m) THAT an ORDER directing the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents and the 1st and 2nd Interested Parties to WITHIN THE NEXT TWELVE (12) MONTHS from the date of the Judgment delivered by this Honourable Court to file affidavit in this court detailing out their compliance of these directions and orders made herein. Pursuant to this, the Petitioner shall cause the matter to be mention by the Court for that purposes and further direction thereof. n) THAT the Honourable Court to issue and order that this Petition is in the public interest, each party should bear their own costs. IT IS SO HEREBY ORDERED ACCORDINGLY JUDGMENT ELCPET. E017 OF 2022 Page 191 of 192 HON. JUSTICE L.L. NAIKUNI

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JUDGEMENT DELIVERED, DATED AND SIGNED THROUGH THE MICRO – TEAMS VIRTUAL MEANS ON THIS ……..25TH………DAY OF …….SEPTEMBER, 2026 …………………………………………. HON. JUSTICE MR. L.L NAIKUNI, ENVIRONMENT & LAND COURT AT MOMBASA Judgement delivered in the presence of:a) M/s. Firdaus Mbula, the Court Assistant. b) Mr. Aenea Ragen the Petitioner in Person. c) Mr. Ng’ang’a Advocate for the 1st & 2nd Respondents. d) No appearance for the 3rd Respondent. e) M/s. Moyai Advocate for the 4th Respondent. f) M/s. Wambua Advocate holding brief for M/s. Wachanga Advocate for the 5th Respondent. g) M/s. Ondieki Advocate for the 6th Respondent. JUDGMENT ELCPET. E017 OF 2022 Page 192 of 192 HON. JUSTICE L.L. NAIKUNI

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