[2012] KEHC 5521 (KLR)

[2012] KEHC 5521 (KLR)

The court held that the plaintiffs, as tenants seeking to enforce their constitutional right to a clean and healthy environment, should not be required to provide an undertaking in damages as a condition for the ex parte injunction. The right to a clean and healthy environment is entrenched in the Constitution and the Environmental Management and Coordination Act, and access to justice for its enforcement should not be hampered by procedural requirements such as undertakings in damages. Imposing such a requirement would risk rendering constitutional protections illusory, as plaintiffs could be forced to endure environmental harm pending trial, potentially resulting in irreversible injury....

Citation
[2012] KEHC 5521 (KLR)
Parties
Plaintiff: Fadhila S. Ali; Plaintiff: Dominic Miguna; Plaintiff: Charles Peter Ikutwa (as officials of National Housing Corporation Tenant Welfare Association); Defendant: National Housing Corporation; Defendant: Dickson Githaiga t/a Dickway Construction Company
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
4 December 2012
Case Number
Environment & Land Case 5 of 2012
Procedural Posture
Environmental Application / Ruling on Application for Undertaking in Damages Pending Interpartes Hearing of Injunction
Outcome
Application for undertaking in damages declined.
Legal Topics
Injunctions, Undertaking in Damages, Right to Clean Environment, Constitutional Rights, Environmental Management, Access to Justice
Source Language
English
Environmental Law Civil Procedure Injunctions Undertaking in Damages Right to Clean Environment Constitutional Rights Environmental Management Access to Justice

Case Brief

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Parties

Fadhila S. Ali

Plaintiff

Dominic Miguna

Plaintiff

Charles Peter Ikutwa (as officials of National Housing Corporation Tenant Welfare Association)

Plaintiff

National Housing Corporation

Defendant

Dickson Githaiga t/a Dickway Construction Company

Defendant

Procedural Posture

Environmental Application / Ruling on Application for Undertaking in Damages Pending Interpartes Hearing of Injunction

Legal Issues

  1. 1 Whether the plaintiffs should be required to provide an undertaking in damages as a condition for the ex parte injunction restraining construction by the 1st defendant.
  2. 2 Whether enforcement of the right to a clean and healthy environment under the Constitution and Environmental Management and Coordination Act exempts plaintiffs from the usual requirement of undertaking in damages.

Ratio Decidendi

The court held that the plaintiffs, as tenants seeking to enforce their constitutional right to a clean and healthy environment, should not be required to provide an undertaking in damages as a condition for the ex parte injunction. The right to a clean and healthy environment is entrenched in the Constitution and the Environmental Management and Coordination Act, and access to justice for its enforcement should not be hampered by procedural requirements such as undertakings in damages. Imposing such a requirement would risk rendering constitutional protections illusory, as plaintiffs could be forced to endure environmental harm pending trial, potentially resulting in irreversible injury....

Court Disposition

Application for undertaking in damages declined.

Orders

  • The request by the 1st Defendant for an order requiring the Plaintiffs to give an undertaking in damages is declined.
  • National Environmental Management Authority (NEMA) to be joined as a necessary party to the suit.