[2019] KEELC 2142 (KLR)
The court found that the petitioners raised serious allegations of non-compliance with environmental and planning laws, specifically the lack of NEMA approval and violation of the Physical Planning Act. The respondents failed to provide any documentation to demonstrate compliance. Applying the precautionary...
Source-derived case information.
- Citation
- [2019] KEELC 2142 (KLR)
- Parties
- Applicant: Michael Gatuma; Applicant: Joseph Mailutha; Applicant: Domisiano Mwilaria; Applicant: Mwiti Nicholas; Applicant: Kamaai Ithikanyi; Applicant: Sebastiano Ikiaoo; Applicant: Priscilla Mukokinya; Applicant: Patrick Mburuki; Applicant: Cypriano Limbitu; Applicant: Tharamba Kalaine; Applicant: Charity Mwari Karei; Applicant: Agnes Karambu; Applicant: James Muriuki; Applicant: Martin Murithi; Applicant: Flora Kithuku; Applicant: Sabera Kathoni; Applicant: Grace Mwari; Applicant: Sarafina Nkirina; Applicant: Sera; Applicant: Jacob Kimathi; Respondent: Victor Karithi; Respondent: County Government of Meru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 16 of 2019
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Status Quo Orders Pending Hearing of Preliminary Objection and Main Application
- Outcome
- Status quo orders granted; only construction of the toilet permitted pending hearing and determination of the application and preliminary objection.
- Legal Topics
- Environmental Impact Assessment, Status Quo Orders, Planning Permission, Public Participation, Precautionary Principle, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Gatuma
Applicant
Joseph Mailutha
Applicant
Domisiano Mwilaria
Applicant
Mwiti Nicholas
Applicant
Kamaai Ithikanyi
Applicant
Sebastiano Ikiaoo
Applicant
Priscilla Mukokinya
Applicant
Patrick Mburuki
Applicant
Cypriano Limbitu
Applicant
Tharamba Kalaine
Applicant
Charity Mwari Karei
Applicant
Agnes Karambu
Applicant
James Muriuki
Applicant
Martin Murithi
Applicant
Flora Kithuku
Applicant
Sabera Kathoni
Applicant
Grace Mwari
Applicant
Sarafina Nkirina
Applicant
Sera
Applicant
Jacob Kimathi
Applicant
Victor Karithi
Respondent
County Government of Meru
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Status Quo Orders Pending Hearing of Preliminary Objection and Main Application
Legal Issues
- 1 Whether the respondents commenced construction without obtaining requisite approvals from NEMA and under the Physical Planning Act.
- 2 Whether the court should grant status quo orders to halt further construction pending determination of the application and preliminary objection.
- 3 Whether the precautionary principle applies in the absence of compliance documents from the respondents.
Ratio Decidendi
The court found that the petitioners raised serious allegations of non-compliance with environmental and planning laws, specifically the lack of NEMA approval and violation of the Physical Planning Act. The respondents failed to provide any documentation to demonstrate compliance. Applying the precautionary principle, the court determined that it was necessary to maintain the status quo to prevent potential environmental harm and preserve the subject matter of the dispute until the pending application and preliminary objection are heard and determined. The court thus ordered that only the construction of the toilet may proceed, with all other activities halted, and directed that the...
Court Disposition
Status quo orders granted; only construction of the toilet permitted pending hearing and determination of the application and preliminary objection.
Orders
- Status quo to be maintained, whereby the only activity to be undertaken is the construction of the toilet until the application and/or the Preliminary Objection is heard and determined.
- The matter to be heard on priority basis.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC PETITION 16 OF 2019
IN THE MATTER OF PETITION UNDER ARTICLE 22 AND 23 OF THE CONSTITUTUION OF KENYA 2010
IN THE MATTER OF INFRINGEMENT OF FUNDAMENTAL FREEDOMS AND RIGHTS OF THE PETITIONER UNDER ARTICLE 19,20,22,23,24,28,31,42,69 AND 70 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTION 18 OF THE ENVIRONMENT AND LAND COURT ACT 2011
AND
IN THE MATTER OF ACTIONS OF VICTOR KARITHI MUTUMA WARD REPRESENTATIVE FOR ATHWANA WARD AND IN THE COUNTY GOVERNMENT OF MERU IN ARBITRARILY PLANNING TO CONSTRUCT A MARKET ON A THIN STRIP OF LAND IN KARAMENE AREA WITHIN ATHWANA WARD ON A RESIDENTIAL AREA AND NEAR WASO MARA RIVER PROVIDING DRINKING AND FARMING WATER TO THE INHABITANTS AND THOSE LIVING DOWNSTREAM
BETWEEN
MICHAEL GATUMA........................................................1ST PETITIONER
JOSEPH MAILUTHA.......................................................2ND PETITIONER
DOMISIANO MWILARIA.............................................. 3RD PETITIONER
MWITI NICHOLAS......................................................... 4TH PETITIONER
KAMAAI ITHIKANYI..................................................... 5TH PETITIONER
SEBASTIANO IKIAOO....................................................6TH PETITIONER
PRISCILLA MUKOKINYA..............................................7TH PETITIONER
PATRICK MBURUKI........................................................8TH PETITIONER
CYPRIANO LIMBITU.......................................................9TH PETITIONER
THARAMBA KALAINE.................................................10TH PETITIONER
SABERA KATHONI....................................................... 16TH PETITIONER
GRACE MWARI.............................................................. 17TH PETITIONER
SARAFINA NKIRINA......................................................18TH PETITIONER
CHARITY MWARI KAREI............................................ 11TH PETITIONER
AGNES KARAMBU........................................................ 12TH PETITIONER
JAMES MURIUKI............................................................13TH PETITIONER
MARTIN MURITHI........................................................ 14TH PETITIONER
FLORA KITHUKU............................................................15TH PETITIONER
SERA................................................................................…19TH PETITIONER
JACOB KIMATHI..............................................................20TH PETITIONER
VERSUS
VICTOR KARITHI ............................................................1ST RESPONDENT
COUNTY GOVERNMENT OF MERU........................... 2ND RESPONDENT
RULING
1. The applicants herein have filed an application dated 18. 6.2019 seeking to halt the construction of the proposed Athwana market in Karamene area citing none compliance with provisions of the Physical Planning Act and National Environment Management and Coordination Act. This application is at the infancy stage and is yet to be heard.
2. Further, the respondents have on their part filed a notice of preliminary objection to have the application of 18. 6.2019 and the entire petition dismissed. Likewise, this preliminary objection is yet to be prosecuted.
3. The court has been urged by the applicants to grant orders of maintenance of status quo in order to preserve the substratum of the suit pending the determination of the preliminary objection and the application.
4. On the other hand the respondents aver that there is no certainty that the petition will be sustained.
5. On 10. 7.2019, both sides confirmed that the status quo is one where the only activity ongoing on the ground is the construction of a toilet though materials are on site.
6. I find that the petitioners have raised a serious allegation that the requisite approvals from the National Environmental Management Authority (NEMA) have not been obtained and that the project is being put up contrary to the provisions of the physical planning Act.
7. Section 58 of the Environment Management and Co-ordination Act provides that the proponent of a project must submit an environmental Impact Assessment Report to NEMA so as to be issued with the relevant license. The second schedule of the aforementioned Act further provides for the instances where submission of an E.I.A study report is required. The petitioners have taken a step of engaging a professional expert (a lead expert) who has prepared an environmental Impact Assessment Advisory report where a conclusion has been made to the effect that the project will have more negative effects than positive ones.
8. Respondents have not availed any single document to counter the averments made by the petitioners, yet they admit that materials are already on site ready to commence the construction.
9. Taking into account the precautionary principle of environmental protection and considering that respondents have so far not availed any document of compliance with the EMCA and physical planning Act, and keeping in mind that the project is at the infancy stage, then, I am inclined to give orders as follows:
1) Status quo to be maintained, whereby the only activity to be undertaken is the construction of the toilet until the application and or the Preliminary Objection is heard and determined.
2) The matter to be heard on priority basis.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 31ST DAY OF JULY, 2019 IN THE PRESENCE OF:-
C/A: Dennis
Munene holding brief for Maranya for applicant/petitioner
Laichena for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE