https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5108

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC CONSTITUTIONAL PETITION NO. E024 OF 2024** **ZIZU INVESTMENTS LIMITED ……………….……………….. PETITIONER** **VERSUS** **NATIONAL ENVIRONMENTAL AUTHORITY ………..… 1ST RESPONDENT** **KENYA URBAN ROAD AUTHORITY ……………..……. 2ND RESPONDENT** **NAIROBI COUNTY GOVERNMENT ………………….… 3RD RESPONDENT** **AND** **NATIONAL POLICE SERVICE……………………………INTERESTED PARTY** **JUDGMENT** 1. Before the court is a petition dated 15-04-2025. The petitioner seeks; 2. **Declaration that the 1st, 2nd, and 3rd respondent having abdicated their responsibilities contravened the provision of Article 42 of the Constitution and consequently violated the rights of the petitioner to a clean and healthy environment.** 3. **Declaration that the 1st, 2nd and 3rd respondents have denied the petitioner the rights to enjoyment of the property.** 4. **An order directing that the 1st, 2nd and 3rd respondents and the interested party to evict all the illegal settlements established on road reserves and to remove the illegal structures, kiosks and vibanda built on the roadside of Road C adjacent to plot 209/9704, 209/9707, 209/9709 and 209/9708.** 5. **An order stopping the respondents from depositing or permitting depositing of waste at the adjacent 10 plots 209/974,209/9707,209/9709 and 209/9708 that borders Road C C behind Vision Plaza, Industrial Area within Nairobi County.** 6. **An environmental restoration order be issued against the respondents** 7. **An order directing the 2nd and 3rd respondents to unblock the sewages and to erect a road rain water gutter to prevent further environmental degradation.** 8. **General damages for the violation of the petitioner's constitutional rights.** 9. **cost of the petition,** 10. **Any other relief the court may deem just to grant.** 11. The petitioner describes itself as a company incorporated in Kenya which is the proprietor and owner of Lands Reference numbers 209/9704, 209/9707, 209/9709 and 209/9708 hereinafter the subject property that borders Road C behind Vision Plaza, Industrial Area within Nairobi county. 12. The petitioners avers that the said road has been encroached and blocked by unknown invaders, who have protested to degrade the environment and constructed the following acts namely; 1. **Erection of kiosks/vibandas on the road, road reserve and public lands,** 2. **started dumping of garbage therein, effectively blocking the roads, walkways and gates adjacent to Road C,** 3. **Made illegal power connection and vandalism,** 4. **Erected illegal settlements on the road reserve land,** 5. **Blocked drainage sewerage and caused degeneration of the road,** 6. **Caused insecurity, deterioration and destruction of the road as a result the encroachment of hawkers and vibandas on the road reserves.** 7. **Created or caused massive noise pollution in the area, noise pollution in the area, public urination and traffic congestion**. 8. The petitioner avers that Article 42 of the Constitution requires the litigation of natural utilization of natural resources is a manner that meets the needs of the preserved generation without compromising the ability of future generations to meet their own needs. 9. The petitioner avers that the 2nd respondent is the legally obligated principal instrument to implement national government’s environmental policies, including environmental resources by ensuring that they are used in a manner that meets the needs of present generation compromising the ability of future generation to meet their own needs. 10. The petitioner avers that the 3rd respondent has the responsibility of inter alia, establishing and maintaining the disposal of hazardous waste and refuse for purposes of ensuring a clean and healthy environment for the residents of Nairobi. 11. The petitioner avers that the right to a clean and healthy environment includes inter-alia, preventive measures in respect of occupational accidents and diseases, to ensure an adequate supply of safe and portable water and basic sanitation, prevention and reduction of air pollution, prevention of exposure to harmful substances such as radiation, and harmful chemicals, or other detrimental environmental conditions that directly or indirectly impact upon human health. 12. The petitioner avers that pursuant to the provisions of the EMCA, the Physical and Land Use Planning Act, the Water Act 2000, the Road Act and the Nairobi City Council by Law, the respondents and the interested party have the constitutional and statutory obligation to ensure clean and healthy environment. 13. The petitioner avers that recent environmental assessment report that was undertaken on the subject area has demonstrated wanton pollution, destruction of the road and blockage of water paths and sewage system leading to flagrant environmental degradation. 14. The petitioner avers that the continued existence and expansion of the dumpsite alongside the subject properties raises the risk of diseases, occupation and traffic accidents, thus presenting a real environmental hazard to motorists and the residents of the area. 15. The petitioner avers that the acts of destruction, threat and breach of the petitioner's right to a clean and healthy environment has been occasioned as a result of the respondent’ abdication of their constitutional and statutory responsibilities by their: 16. **Their failure to evict illegal occupants therein,** 17. **Failure to control the release of generated waste from companies in the area,** 18. **Failure to enforce the relevant physical planning laws,** 19. **Failure to regulate the existing establishment that caused air pollution, and structural damage to the petitioner's properties.** 20. **Failure to institute preventive and reductive measures as regards the population's exposure to harmful substances such as radiation and harmful chemicals** 21. **Failure to safeguard the petitioners from exposure to accidents**. 22. The petitioner avers that although the 3rd respondent has issued notices dated 4-1-2024 to the illegal settlers to remedy the situation including the removal of the illegal kiosks and structures, no concrete action has been undertaken by the respondent to restore the environment. 23. The petitioner avers that its warehouse business on the subject property have directly been affected by the acts of the illegal settlers and structures, and the resultant environmental degradation, making it unable to enjoy the use of its properties, hence the reliefs for compensation and general damages. 24. In support of the petition, the petitioner relies on sworn affidavit of its director ,Mr Rahim Samji on 15-4-2024. Attached to the affidavit are copies of ownership ' documents, letters dated 25-9-2023, January 2024, and 20.4.2023,an environmental assessment report dated 19.7.2023, photographs, notices of termination of tenancy by its tenants dated 1.11.2023 and 1.12.2023,all marked as annexures RS 1(a) (2) and (3), (4), (5), (6) and (7) (a) and (b) respectively. 25. The petition is opposed by the 1st Respondent through a statement of defense dated 12-2-2025. It is pleaded that the 1st respondent as established under Section 7 of EMCA Cap 387 Laws of Kenya, core objective and purpose is to exercise general supervision and coordination over all matters relating to the environment. 26. The 1st respondent states that as principal government instrument in the implementation of all policies relating to the environment, and as per Article 60 of the Constitution, it applies the relevant laws and policies for equitable, productive and sustainable land use, one of which is the requirement that all project proponents project do conduct an EIA project/study report prior to commencing any project. 27. The 1st respondent avers that in order to achieve its core objective, the authority in consultation with all other lead agencies and relevant stakeholders, follows prescribed rules and guidelines that enable it to receive, review, act, approve EIA as per the provisions of Section 98 of EMCA and the relevant Regulations. 28. The 1st respondent avers that pursuant to the prescribed Rules and Guidelines, it is a regulation under Section 98 of EMCA, that prior to the financing, commencing, proceeding with, executing, conducting, carrying out or causing to be financed, commencing, proceeding with, carrying out, executing or conducting, or undertaking any of the specified in the second schedule to the Act, such a body or entity must submit a project report to the authority. 29. The 1st respondent avers that there exists no project proponent, the subject of this petition, but rather a complaint about waste disposal against members of the general public conducting business within the subject matter of this petition. 30. The 1st respondent avers that pursuant to the 4th schedule of the Constitution, waste disposal is a devolved function and as such is a mandate of the 3rd respondent with regard to the subject matter. 1. The 1st respondent avers that the petitioner vide a letter dated 14. 12. 2004 was informed by it to seek the intervention of the 3rd respondent since it has the responsibility to assess waste disposal on the subject parcels of land to this petition. 2. The 1st respondent avers that the 3rd respondent is the appropriate government entity to respond to the majority of the issues raised in the petition as acknowledged by the petitioner in paragraph 3 of the petition. 3. The 1st respondent avers that despite the 3rd respondent being notified of the alleged nuisance ,it has failed to act , hence unless the court intervenes it is likely that any administrative action by the 1st respondent against the 3rd respondent will be an exercise in futility. 4. The 1st respondent avers that given the particulars of the complaint in this petition, it would be best achieved if it was as an interested party and not sued as a respondent since its relevance in this petition is that of a general supervisor on environmental matters under Section 9 of EMCA Cap 387. 5. The 1st respondent maintains that the reliefs sought herein cannot be attained through the independent action of the 1st respondent. 6. The petition is opposed through a replying affidavit sworn by Engineer Joseph Kivanguli who is an Assistant Director Roads, assessement and Corridor Management on 9.10.2024,working with the 2nd respondent.It is denied that collective complaint captured in annexures marked RS 2(b) was ever served on the 2nd respondent, to afford it an opportunity to investigate the matter and possibly to respond in a manner arising in the resolution of the same as amelioration thereof, even to an extent of obviating this action. 7. The 2nd respondent deputy director deposes that notwithstanding the foregoing, after the suit papers were served upon the board its officers visited the subject properties belonging to the petitioner to appreciate the cause of action. During the site visit it is averred by the 2nd respondent that its officers found out that the matters complained about stem largely from the socio-economic and cultural challenges bedeviling the country, whose efficacious solution would be hard to attain through the due process of this court. 8. The 2nd respondent states that the site visit revealed that the actual road allegedly encroached upon is the one that is described as P.1248-Nairobi, on the Road Register, which road traverses behind the petitioner’s subject properties separating them with the building described in the petition as Vision Plaza, and which road is classified as a Country Road. 9. The 2nd respondent avers that the road in issue falls under the jurisdiction of the 3rd respondent, and abuts the petitioner’s properties from their frontage classified as an Urban National Road, falling under its jurisdiction as per attached excerpt from the Roads Registry marked JKK and the google map part picture of the area showing the encroached road. 10. The 2nd respondent avers that reading through the petition, it confirms that the 3rd respondent approved the petitioner’s request to be allowed or permitted it to beautify up encroached areas, and therefore to do so, the encroaching person(s) would have to be relocated to areas designated for trading activities, which measures would have helped resolve the complaints and obviated these proceedings. 11. The 3rd respondent opposes the petition through a response dated 17.3.2025. The 3rd respondent admits that its mandate stems from Articles 6 and 186(1) read together with Section 8 of the Act, THE 4th Schedule of the Constitution, and the County Government Act. 12. The 3rd respondent as regards County Planning and development avers that there is no material evidence produced to show that the alleged occupiers and or developers,the subject of this petition have made development applications to the 3rd respondent and obtained development permission thereof. 13. The 3rd respondent admits that its officials indeed visited the site to confirm the development and occupation of kiosks/vibandas erected on the road, road reserve or public land, whose findings was to the that there were no developments/application or permits issued for the same by the 3rd respondent. 14. The 3rd respondents avers that the said developers/occupiers of the suit property have not responded to the enforcement notices that were served or issued by its office. 1. The 3rd respondents avers that though it was in the process of undertaking an enforcement process to remove the said illegal structures and to stop the non-compliant businesses, unfortunately it was prevented by the pre-mature filing of this petition in court, just when the 3rd respondent was in the process of effecting the said enforcement notices. 2. The 3rd respondent avers that the activities and or actions of the developers and occupiers of the of the said properties have not been authorized and or sanctioned by any of its acts, neither has it at any given time given any permits or approvals to the said developers or occupies of the kiosks. 3. The petition was canvassed by way of written submissions. The petitioner relies on written submissions dated 30.10.2025 isolating three issues for the court’s determination.It is submitted that the actions and omissions of the respondents constitutes a violation of the petitioner’s constitutional rights under Article (1) (1) (2), 3(1), 10,22,24,40,42(a) and (b),43,47,50,69 and 70 of the Constitution. 4. The petitioner submits that the Supreme Law of the land, binds upon all persons and state organs, while imposing a duty to respect, uphold and defend it, including public authorities, such as the respondents whose continued inaction in the face of blatant environmental degradation, illegal dumping and obstruction of public infrastructure undermines the rule of law, the national values and principles of good governance, as set out in Article 10 of the Constitution including sustainable development. 5. The petitioner submits that by failing to act and resolve the issues affecting it, the respondents have abdicated their constitutional duty, and allowed the erosion of public trust in governance. 6. The petitioner submits that under Article 40 of the Constitution, its right to enjoyment of, use and occupation of the subject properties have been infringed by the failure to remove illegal structures erected on or around its go-downs, which acts amount to constructive deprivation and interference with its peaceful enjoyment of the properties. Reliance is placed on **Isaac Gathugu Wanjohi & Another – vs- Attorney General & others (2012(eKLR on the proposition** that Article 40 of the Constitution must be read as a whole and in the context of Article 10 of the Constitution on National Policies and principle of governance which enables human rights. 7. The petitioner submits that the blockage of the sewer system and the unregulated construction activities as pleaded have created unsanitary and hazardous conditions contrary to Article 42 of the Constitution. 8. The petitioner submits that the 1st respondent as the environmental regulator with statutory duties under Sections 9,58 and 69 of EMCA to prevent environmental degradation is guilty of dereliction of duty and violation of its constitutional rights by failing to act in the face of an ongoing pollution and encroachment. 1. The petitioners submits that the 2nd respondent under the Kenya Roads Act, 207 has an obligation to ensure that road reserves are kept clear and properly maintained. 2. Equally the petitioner submits that the 3rd responsibility under the Physical Act and Land use Planning Act 2019 and the Public Health Act has obligation to control and maintain sanitation and therefore, the failure by the two institutions to remove the alleged structures and unlock the sewer line constitute administrative inaction contrary to Article 47 of the Constitution. 3. The Petitioner submits that the interested party despite reports and complaints by the petitioner has failed to provide adequate security or enforcement support to prevent further encroachment and vandalism of the property. 4. The petitioner submits that the said inactions by the Interested Party perpetuates the violation pleaded and reflects non-compliance with Article 244(c) of the Constitution which mandates it to comply with constitution standards of human rights and freedoms. 5. The Petitioners submitted that the respondents have also failed to discharge their mandate and duties under Section 3,9,87,88,90,143,144 and 145 of the EMCA, by ensuring the general supervision over environmental matters, prohibition and regulation of the discharge of waste and pollution of the environment, issuing and enforcing improvement and restoration orders against persons or entities polluting the environment, and lastly by failing to apply the aforesaid provisions despite the clear environmental degradation and public health risks affecting it. Reliance is placed on **Moffat Kamau & others – vs – Aelous Kenya Limited & others (2016) eKLR** as cited in **Ken Kasinga – vs- Daniel Kiplagat Kirui & others (2025)eKLR.** 1. The petitioner urged the court to find that the relief prayed for are merited in the circumstances. 2. The 1st respondent relies on written submissions dated 28.6.2026 isolating these issues for the court’s determination.It is submitted that the petitioner has failed to establish that the alleged acts of omission of the 1st respondent constitutes a violation of its constitutional rights under the cited constitutional provisions and also in the enabling legislation. 3. The 1st respondent submits that the petition has not been pleaded with precision and supported with a demonstration over any specific conduct as distinct for that of a test of the respondents regarding the infringement of any of the cited rights. 4. The 1st respondent submits that there is no evidence to the casual connection between the 1st respondent’s acts or omissions and the alleged havoc suffered. 5. The 1st respondent submits that the petition fails to meet the threshold articulated in **Anarita Karimi Njeru – vs- Republic (1979) KLR 154**. 6. The 1st respondent submits that the Constitution has allocated distinct responsibilities to different levels of governments and their agencies. In this case, it is submitted that while, the right to clean and healthy environment under Article 42 of the Constitution, being a positive right, imposes obligations on the State as a whole, the enforcements aspect requires the identification of a specific organ, with both the constitutional and statutory duty to act in relation to a particular grievance. 7. Relying on **NEMA & Another – vs- KM (Minor suing through mother and best friend(SKS) and 17 others (2023 KECA 775,** the 1st respondent submits that the State’s liability is not diffuse but arises only where a specific obligation has been violated by a particular state organ and a causal link is established. 8. The 1st respondent ,relying on the cited case law submits that a finding of liability against it could NOT be made simply because environmental harm has occurred, without the petitioner demonstrating that the 1st respondent has breached a specific duty whose breach caused the resultant harm. 9. The 1st respondent submits that as gravamen of the petitioner’s complaint concerns the failure to prevent the illegal dumping, encroachment and sewer blockages on Toto the subject property which matters, fall squarely within the devolved functions of the 3rd respondents under Paragraph 2 as part II of the 4th Schedule of the Constitution, assigning the County the function of County Health services, refuse removal, control, refuse dumps, and solid waste disposal, and noise, air pollution control and other public nuisances, as also captured in Section 5 (k) of the County Government Act as read together with Articles 186 of the Constitution, 10. Further the 1st respondent submits that under the Sustainable Waste Management Act Cap 387 C ,County Governments are placed at the center of waste management implementation which entails regulation of waste categorization, collection, transportation, treatment, disposal, licensing and enforcement. 11. The 1st respondent submits that the Act also empowers the County Government to directly collect waste, regulate private actors, designate disposal sites and prohibit non-compliant operations. 12. The 1st respondent submits that the management and sewerage and drainage within the County is core function of the County Government under both the Physical and Land Use Planning Act and the Public Health Act, otherwise as role stets Section 9 of the EMCA is one of general supervision, coordination, policy oversight and does not include the day-to day removal of waste or unblocking of sewers. 13. The 1st respondent submits that in this instance, upon receiving the petitioner’s complaints through a letter dated 14.12.2014, it informed the petitioner to seek the intervention of the 3rd responded hence discharging its supervisory obligation by directing the complainant to the appropriate local agency. 14. The 1st respondent urges the court to be guided by the case law of **Obuli & others – versus – NEMA & others (2026) KEELC 1103 (KLR)** where the court drew the distinction between the mandate and obligation of the authority and that of the County Government. 15. The 1st respondent submits that given the clear distinction of its mandate, in any instance it could not have interfered with the mandate of the 3rd respondent unless, the latter was completely unable to discharge their mandate, which evidence of inability in this matter is lacking to have warranted its intervention. Reliance is placed in **Gichu – vs- Obuya Otieno Ritzan t/a Bamburi** **County High School & others (2023) KEELC 19222 (KLR)**. 16. In view of the foregoing, the 1st respondent urges the court to find that the petitioner has not established with precision or on a balance of probabilities how the authority actions or omissions constitute a violation of any of the petitioner’s constitutional rights, on matters failing under the rights responsibility of the 2nd and 3rd respondents 1. The 1st respondent submits that the contention by the petitioner on failure to discharge its mandate under Sections 3,9,87-90,108-111 and 143-145 of the EMCA is not substantiated. 2. The 1st respondent submits that EMCA creates a multi-agency framework for environmental management with the authority occupying the pivotal role of general supervision and coordination over all matters relating to the environment, which role does not confer upon it an exclusive or primary responsibility for the direct enforcement of every environmental standard in every locality. 3. The 1st respondent submits that the Act has designated specific functions to various lead agencies including the 3rd respondent with the 1st respondent’s role being to harmonize or oversee their activities but not to oust them. 4. The 1st respondent submits that in the circumstances obtaining in this matter, there is no evidence of where the authority failed to take a specific step that was legally required to be taken, or which if it was taken will have prevented or remedied the alleged harm. On the contrary the 1st respondent submits that it never ignored the petitioner’s complaint and but instead directed the petitioner to channel it to the constitutional and the statutory mandated entity, the 3rd respondent over waste disposal and maintenance of sewerage infrastructure. 5. The 1st respondent submits that the petitioner in this matter has failed to establish the requisite linkage between any omission by the authority and the environmental harm complained of.If any thing the 1st respondent submit that to the contrary as per the pleadings, they show that any thing committed or that took place arose as a result of third party activities and the failure of the 3rd respondent to enforce the by-laws and maintain public infrastructure, which responsibility, the 1st respondent could not assume or be liable of the operational failures of other lead agencies. 6. The 1st respondent in view of the foregoing urges the court to find that the reliefs sought by the petitioner are not available against the authority for lack of any constitutional or statutory rights infringements, attributed to the authority, or for acts which fall elsewhere and not under the statutory mandate in law to enforce, undertake or execute. 7. The 2nd respondent and the interested party rely on written submissions dated 26.1.2025, isolating two issues, for the court determination. 8. The 2nd respondent submits that the Constitution of Kenya under Article 186(1) as read together with the 4th Schedule has assigned responsibilities for county roads, streets and access roads as falling within the mandate of County Governments. In line with the assignment ,it is submitted that the constitutional allocation of functions was operationalized through legal notice No. 2 of 2016, and vested their management. County roads in County governments while limiting the mandate to KURA to national urban trunk roads. 9. The 2nd respondent submits that as deposed in the replying affidavit of Engineer Kivanguli, the subject road known as Road (C) does not fall under its docket for it is not classified as an urban trunk road, but instead falls under the mandate of the 3rd respondent. Therefore, the 3rd respondent submits that it cannot be compelled to act outside its statutory powers. Reliance is placed on **Daniel Ingutuia Aluvaala & Another – vs- Council of Legal Education & Another (2017) KEHC 2775 (KLR).** 10. The 2nd respondent submits that without jurisdiction it would not assume powers, on mandate of falling outside its responsibilities which would have amounted to acting ultra vires. 11. The 2nd respondent submits the petition is defective as it fails to meet the threshold in **Anarita Karimi Njeru – vs- Republic (1979) KEHC(KLR)** for making only generalized allegations of breach of constitutional rights. Reliance is also placed on **Matemu –vs- Trusted Society of Human Rights Alliance & Others (2023) KECA 445(KLR).** 12. The 2nd respondent submits that the petitioner also failed to issue a mandatory pre-action notice produced as annexture marked (RS-2b) upon it before filing the petition, which would have affected it as public entity an opportunity to address the grievances before being subjected to litigation. 13. The 2nd respondent submits that statutory notices are mandatory prerequisites and not mere procedural niceties capable of being disregarded, rendering the petition procedurally incompetent. 14. The 3rd respondent relies on written submissions dated 26.6.2026, isolating from issues for as court’s determination. It is submitted that though Constitutional Articles NO.40,42,43,47,69 and 70 are cited, the petitioner has failed to set out with a reasonable degree of precision what is complained of and the manner of infringement as held in **Anarita Karimi Njeru – vs Republic (1979) eKLR.** 15. The 3rd respondent submits that the petitioner has not demonstrated how the title to the land was being infringed otherwise the allegations of inconvenience or reduced enjoyment of property alone does not amount to a violation of Article 40 of the Constitution. 16. The 3rd respondent submits that even though Article 42 of the Constitution guarantees a right to clean and healthy environment, it does not impose strict liability on public authorities. In this matter, the 3rd respondent submits that the petitioner has failed to demonstrate that the alleged environmental degradation was caused or sanctioned by the 3rd respondent either by ignoring the complaints or failing to act, or or neglecting to invoke its statutory enforcement mechanisms of enforcement, or for lack of an administrative decision or action, triggering the acts of environmental degradation or affecting the petitioner. 1. The 3rd respondent submits that environmental rights claims under under Article 69 and 70 of the Constitution require scientific or expert evidence and in this case, there is no E.I.A, the NEMA compliance report or pollution analysis presented before court to support the petition. 2. The 3rd respondent submits that other than broad allegations, the petitioner failed to show which acts or omissions of the 3rd respondent caused the alleged violation, supported by expert reports and environmental impact assessment, violation reports, or police report. 3. On *locus standi,* as 3rd respondent submits that the petitioner has availed no documentary evidence by way of a certificate of title or lease, grant, allotment letter, official search or conveyance instrument in relation to L.R Nos.209/9704,209/9707,209,9709 and 209/9708, as a sign of ownership or prove of a legal recognizable legal interest in the suit property to be entitled to claim a breach for property rights and to be entitled to the reliefs sought. 4. The 3rd respondent submits that whereas the petitioner admits that Road C boards it, the alleged land, roads are public, whose ownership of land adjoining a road, confers no ownership, control or enforcement authority over them to the adjoining land owner. Reliance is placed on **Kenya National Highways Authority – vs- Shalien Masood Mughal & others (2017) eKLR on** the proposition that an adjoining land owner has no proprietary interest in a road reserve and cannot claim rights over public infrastructure. 5. In this case it is submitted that the petitioner lacks *locus standi* to control, manage, erect and or seek restoration orders over road (which remains public land). 6. The 3rd respondent submits that the petitioner being a company acts through is agents and in this case, there is no board resolution by the board of Directors authorizing the institution of this case or giving mandate to a person to act on its behalf. Reliance is placed on ***Bugurere Coffee Growers Ltd – vs- Sebaduka & Another (1970) EA 147, Dr. Udo Ueing & Another NRB HCC No.195 of 2016 as cited in Airways Ltd – vs- Bowen & Another (1985).*** 7. The 3rd respondent submits that there is no evidence that it abdicated its statutory duty otherwise it made a site visit on the locus in quo confirming the absence of development permissions, issued enforcement notices dated 4.4.2024 pursuant to PLUPA and initiated an enforcement operation to remove the illegal structures, which was interrupted by the filing of this petition, making it to exercise restraint due to an active litigation. 8. The 3rd respondent submits that the petitioner is therefore not justified to be granted the reliefs sought for lack of substantiation of the alleged violation or interference of the constitutional rights based, or based on an actionable wrong justifying the award of damages on top of the other reliefs.Reliance is placed on **Hardy Residents Association & Another (**Suing through its officials **– vs- Ng’ang’a (2024) eKLR** as cited in **Jogoo Kimakia Bus Services Ltd – vs – Electrocom International Ltd (1992) eKLR.** 9. The court has carefully gone through the pleadings, written submissions and the law The issues calling for the court’s determination are: 10. If the petitioner has met the criteria for a constitutional petition 11. If the petitioner is guilty of non exhaustion doctrine. 12. if the petitioner has proved breach of any constitutional rights and freedoms to be entitled to the reliefs sort. 13. What is the order as to costs. 14. A party seeking for constitutional reliefs by way of a constitutional petition must meet the requirements of both procedural and substantive law governing constitutional petitions. 15. These requirements include interalia Article 22 and 23 of the Constitution and the Constitution of Kenya (protection of rights and fundamental freedom (practice and procedure rule 2013).The respondents attach the petition on locus standi,lack of precision and disclosure of a cause of action, on-exhaustion doctrine, lack of evidence to sustain it and lastly for not raising constitutional issues or questions. 16. In **CCK & Others vs Royal Media Services and others (2014) eKLR** the court said that although Article 22 (1) of the Constitution of Kenya gives every person the right to institute proceedings claiming that fundamental freedoms, rights has been denied, violated, infringed and threatened, a party invoking that article must show the right said to be infringed as well as the basis of his grievance. The court reaffirmed the principle in **Anarita Karimi Njeru vs Republic (1979) KLR 154** of the necessity of a link between the aggrieved party, the provision of the constitution alleged to have been contravened and the manifestation of the contravention of infringement. The court said that such a principle plays a positive role as a foundation of conviction and good faith in engaging the constitutional process of dispute resolution. 17. In **Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 Others (2013) eKLR,** the court stated that a party approaching the court for constitutional relief must articulate with a reasonable specificity, the complaint being raised, the provision said to be infringed and the manner of infringement. 18. The court emphasized that the precision is essential to enable both the court and the opposing party to understand the exact nature of the case being advanced. Vague and generalization allegations are therefore insufficient to invoke the courts constitutional jurisdiction. 19. In **Ali Juma Mwakaneno and 71 others vs Regisrar of titles, Mombasa & 7 Others (2026) KECA 296(KLR) (20th February 2026) (Judgment),** the court emphasized that a foundational requirement in constitutional litigation is that a petition must be framed with clarity and precision and that a petitioner must particularize how the conduct of the respondent resulted in the violation of the specific constitutional article and by whom. 20. The court said a petitioner must not only site the constitutional provision but also show how the factual allegation satisfied the constitutional standards to require to justify such reliefs. The court said that petitioners must connect its elements of constitutional provisions with a level of clarity and specificity the exact constitutional right infringed, the specific act or omission complained of the particular respondent responsible for the violation and the manner in which the alleged violation occurred. 21. As to burden of proof in **Gwer & Others vs Kenya Medical Research Institute (KEMRI) & 3 Others KESC (2020) 66 (KLR) (Civil CIV) (10 January 2020 (Judgment)** The court underscored the principle that the burden of proof lies with a party alleging the constitutional breach. In **Wamwere & Others vs Attorney General (2023) KESC 66 (KLR)** the court said that the petitioner bears the burden to prove his/her claim by adducing sufficient evidence to proof his claim of infringement or substantiate his allegation. 22. In **Mutinda vs National Assembly & others Petition E006 of 2025 (2026) KESC 56 KLR (17th July 2026) (Judgement),** the court said that the burden on the appellant to proof on a balance of probabilities that the financing agreements entered into were discriminatory after specifically proving the discriminatory nature of the same. 23. Article 22 (2) (c) of the Constitution states that a petitioner may bring a petition individually or in addition to acting in their own interest or in public interest. An applicant must also exhaust alternative dispute mechanisms. 24. In **Base Titanium Limited vs Kiswili (2026) KESE (34) KLR (1st May 2026) (Judgment),t**he issue before Dena L J was whether the petitioners had failed to exhaust the mandatory internal dispute resolution mechanism under EMCA to grant the court jurisdiction to hear the matter. 25. The court said that jurisdiction is not trifling matter but the very foundation upon which all judicial proceedings must firmly stand, in the absence in which a court is duty bound to lay down its tools. The court said that the applicant must demonstrate that the issues in dispute involves a constitutional question. 26. In **William Odhiambo Ramogi and 3 Others vs Attorney General & Others (2020) eKLR**,the court said that where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the contained constitutional violation are not those boot straps or framed in a constitutional language as a pretext to gain entry to the court, the court is not bound by the doctrine of exhaustion, for the question of enforcement of fundamental rights and freedom can only be determined by the high court. 27. In the **Abidha vs Attorney General & Other, National Environmental Complaint Committee & 5 Others (Interested Parties) petition E007 of 2023 (2023) KESC 113 (KLR)**, the court said that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional reliefs which is contingent upon the adequacy of an existing alternative mechanism of redress. 28. In **Mbaazi Avenue Residents Association & Another vs Metricon Home Nairobi Company Limited & 2 Others (2026) KESC 30 KLR (31st March 2026 Ruling**), the court said to determine whether or not there is jurisdiction the court must interrogate its record to ascertain the constitutional issues raised. 29. The 2nd respondent pleads that it had not been notified of the alleged complaints. The 3rd respondent also says that it had issued notices after the complaints ,whose enforcement was stopped by the filing of this matter. On the other hand the 1st respondent states that it had washed its hands off the matter when it referred the complainant to the 3rd respondent. The 1st respondent pleads lack of mandate in law to enforce breach of the right to clean and healthy environment otherwise other lead agencies such as the 3rd respondent are the ones liable. 30. Here therefore is a case where none of the respondents are taking responsibility but blaming the other only to come to court and claim the petition is premature and could have been avoided . 31. The doctrine of exhaustion has been said not to be taken as a blanket bar to prevent litigants from pursuing constitutional petitions for alleged breach of rights and freedoms, where alternative statutory remedies or procedures are available. 32. In **Albert Chaurembo Mumba vs Morris Munyao Others (2019) KESC 83 KLR,** the court said that in Benson Ambuti Andega & 2 Others vs Kiboss Distrillers limited & 5 others (2020) (KESC) 36 (KLR) where the court said that when the question of appropriateness of a forum between the court and a statutory dispute mechanism arises, the right of access to court should not be impeded or stifled in a manner to frustrate the enforcement to a fundamental right and freedom. 33. Therefore court have said that the efficiency and the specificity that the alternative dispute resolution offers has to be considered in their capability to oust the jurisdiction of the court to handle the appellant claim solely on the basis of the exhaustion doctrine. 34. Applying the foregoing case to the instant case, the petitioner is described as a company incorporated in Kenya as per the supporting affidavit is sworn by Rahin Samji a Director. He has not attached a board resolution binding or authorizing him to represent the petitioner. The petitioner is alleged to own the suit property as per annexures of ownership of land bordering a border road, whose encroachment boarding a boarder Road C,whose encroachment and blockage by a unknown invaders/developers/occupiers is threatened with environmental degradation, loss and damage. 35. The complaint letter dated 21.10.2022 by the E.I.A expert sets out the particulars of the petitioner’s land. The demand letter dated 9.1.2024 relates to illegal dumping, trespass to public land ,illegal power and water connectivity and insecurity. 36. The EIA report gives out the relationship between the petitioner ,subject land and the environment surrounding it which is threatened with pollution. In **Spir Bank Limited vs Land Registrar & 2 others (2019) KECA 530 (KLR) t**he court said that only an authorized can institute proceedings on behalf of a cooperation. 37. The 3rd respondent has attacked the capacity of the petition to bring the claim.Article 260 of the Constitution defines a person to include a company whether incorporated or unincorporated. Articles 50 and 258 of the Constitution of Kenya allows a person to institute proceedings. The petition seeks to enforce the right to clean and healthy enviroment.That right in my view is not contingent upon ownership of a specific parcel of land. 38. The question of interest either vested on contingent in the subject matter to be said to be lacking by the respondents to entitle the petition to bring the petition was not clearly explained. Does it therefore mean that only land owners can move to court to enforce such right .Ido not think so .The framers of the constitution and God himself ordained environmental rights to be enjoyed by all and sundry. 39. From the evidence tendered the nexus between the petitioner, the public road, the neighborhood and the impugned activities injuries to the environment is defined and clear. The respondents do not deny the proximity of the petition in the neighborhood and the complaints that it made .Site visits and notices to remedy the situation due to the complaint established that the complaint was not idle, premature or academic. The court finds the capacity of the petitioner falls squarely under the definition of a petitioner under the parameters of articles 22, 50, and 258 and 260 of the Constitution as well as the Mutunga rules which are the anchor. See **Kenya National Commission on Human Rights vs Attorney General and Independent Electoral Boundaries Commission (Interested Parties) (2020).** 40. As to precision and specificity the respondents were able ot file and serve comprehensive responses to the petition without seeking for better particulars .By and large the court finds the petition meets the format, in Rules 4 and 10 of the Mutunga rules and the ingredients set out in **Communications Commission of Kenya & Others vs Royal Media Services Limited and Others (2014) eKLR**. 41. Coming to non exhaustion doctrine, Article 159 (2) of the Constitution of Kenya related to Alternative Dispute Resolution mechanisms as held in **William Ramogi and Ohtes vs Attorney General & others (2020) eKLR and in speaker of National Assembly vs Njenga Karume (1993).** The doctrine of exhaustion seeks to ensure that a party is first of all diligent in protecting his own interest within the mechanisms available outside court. Courts must also be the last forum and not the first court of call whenever a storm brews as held in **Jeffrey Muthiga Kabira & Others vs Samuel Munga Henry (2015) eKLR.** 42. Exceptional circumstances may also allow a party to move to court directly if those who exercise statutory mandate fail to act reasonably or abdicate responsibility as held in **Fleur Investment Limited vs Commissioner of Domestic Taxes and Another (2018 eKLR**. 43. The petitioner raises issues of alleged breach, infringement or threat to environmental rights by those whose statutory and constitutional responsibility is to enforce,protect,promote and uphold those rights to clean and healthy environment. The petitioner subjected itself to those alternative forums who failed to act at all leading to any alleged pollution. 44. In **EPZ & Others vs NEMA & Others Petitioner No. E021 OF 2023** the court said that Article 42 of the Constitution on the right to clean and healthy environment includes the rights to have an environment protected for present and future generations. 45. Section 3 (1) of the EMCA provides as follows: ***“every person in Kenya is entitled to a clean and healthy environment in accordance with the constitution and relevant laws and has a duty to safeguard and enhance the environment.”*** 1. Section 33 of EMCA provides that where the right to a clean and healthy environment has been or is been or is threatened to be denied, violated or infringed, a person may on his behalf or on behalf of a group or a class of persons, members of an association or in the public interest apply to court for redress. 2. Article 42 of the Constitution provides that every person has the right to clean and healthy environment which includes the right to have the environment protected for registrations and other measures, particularly those contemplated in article 69 of the Constitution. 3. Article 70 (1) of the Constitution permits such a person to apply to court for redress in addition to any other legal remedies that are available in respect to the same matters. From the reading of the foregoing provision there is no requirement that a person seeking the intervention of the court to establish that he / she is directly affected and or has suffered any harm. 4. In this petition, the petitioner has pleaded on the nexus between its parcels of land and the impugned acts of pollution on an adjoining land. The demand letter by the Environmental Impact Assessment expert dated 21.10.2022 captures the likely negative impact on the petitioner and the neighbours.It captures the petitioner’s legal ventures as relates in the environmental management planning and summary project reports (SPR) referenced NEMA/NRB/SPR/5/2/1480 that was received on 19.10.2022,by the 1st respondent. 5. The follow up letter to NEMA dated 23.2.2023 that was also received on 23.2.2023 captures the coordinates of the petitioner’s properties as proximate to its alleged illegal activities on the disputed land parcels, including the harm posed to its establishment. Another letter was also received by NEMA on 20.4.2023. The particulars of the petitioner and the other complainant are captured on the said letter form the time the said letters were written. 6. Until the formal read letter was written to the respondents,it is apparent that no action had been taken until 4.1.2024 when the 3rd respondent issued a statutory notice under Public Health act cap 242, the Energy Act, the Physical and Land Use Planning Act 2019 and the Water act, the Nairobi City County laws and the EMCA Act. 7. In the said notice, the 3rd respondent blames the notified persons of recycling of materials on a road reserve, dumping of recyclables on footpaths and drainage and improper storage of recycled materials loading and unloading or recyclable on the road causing obstruction. The notice allegedly given was for the illegal occupants to relocate frm there and take the permitted businesses to a suitable site. The 14 days were to expire on 18.1.2024 or thereafter. This petition was filed close to 3 months after the said notices had expired. 8. With no precipitate actions forthcoming from the respondents, it cannot therefore be true that the respondents generally and in particular the 3rd respondent, were unable to act because of the filing of the petition, otherwise after the statutory notices expired there is no evidence that the 1st and 3rd respondents had executed any of their statutory mandates after their notices were defied. Additionally, through the said letters and the EIA expert report, the petitioner had defined its proximity,capacity,impacts ,loss, damage and the locality on the ground in relation to the impugned harmful activities. To this extent the court is satisfied that the petition in relation to the environmental matters fall within the parameters regarding the capacity to use of land as held in **National Environmental Tribunal vs Overlook Management Limited & Others (2019) eKLR.** 9. Coming to whether the petitioner is owed any constitutional and statutory obligations by the 1st and 3rd respondent, Article 69 of the Constitution provides that the state is obligated inter alia to conduct EIAs and eliminate environmentally hazardous activities. This constitutional directives are operationalized through specific statutory requirements and regulations falling to be enforced by the 1st respondent. 10. Under the Sustainable Waste Management Act 2022, county governments are required to have a sustainable waste management registration to provide for management of waste. Section 18 therefore requires the 3rd respondent to have a waste management plan as part of its approved intergovernmental management development plan. 11. Section 106 AA and 107 (2) OF the county government act, provides that county planning must involve public participation in coming up with such an intergovernmental waste management plan as a basis for all budgeting and spending in a county. 12. The respondents generally have pleaded that they have not abdicated the constitutional and statutory mandate to be blamed for violating any of the constitutional rights to clean and healthy environment. 13. The 1st and 3rd respondents in allege that the petitioner has not demonstrated any acts of omission or commission or conduct of dereliction of duty for them to be held liable by this court. 14. Paragraph 2 of the part 2 of the 4th schedule to the Constitution provides that refuse removal, refuse dumps solid waste disposal, control of air and waste pollution and other public nuisance are county functions. 15. Section 5 (2) of the County Government Act as read together with article 186 of the constitution relate to county functions. The Sustainable Waste Management Act regulates waste collection, transportation, treatment, disposal, licensing and enforcement. The county is also empowered to directly correct waste, regulate private action, redesignate disposal sites and prohibit non -compliance operation. The management of sewage and drained system within a county is a core function within the county government under the Physical and Land Use Planning Act and the Public Health Act. EMCA grants NEMA the general powers of supervision coordination and policy oversight over environmental matters. The key roles of the 1st and 3rd respondents were reiterated in **Oburi and Others vs NEMA & Others (2026) (KEELC) 1103 KLR and in Joseph Mureithi Gichu vs Obuya Otieno Ritzau t/a Bamburi Community High School and 3 others (2023) KEELC 1922 KLR.** 16. The petitioner blames the 1st respondent for failing to apply sections 3, 9, 87, 90, 108-111 and 143-145 of the EMCA despite clear environmental degradation and public health risks affecting it as raised in the letters and the supporting documents in the affidavit before court. Reliance is placed on **Moffat Kamau & Others vs Aelus (K) Limited (Supra)**. 17. The 1st respondent invokes the doctrine that its role includes the constitution in general supervision and coordination of land agencies with no primary responsibilities for the direct enforcement of every environmental standards in every locality. The 1st respondent pleads that after referring the petitioner letters dated 14.12.2024, it discharged its mandate by directing the petitioner to the 3rd respondent which has the mandate to address waste disposal on the parcel the subject of this petition as pleaded in paragraphs 10-12 in the replying affidavit. 18. In **Elizabeth Kurer Heier & another vs county governed nof Kilifi & Others COA No. 672 of 2018,** the court observed that pollution and control of other public nuisances under part 2 clause 3 of the fourth schedule of the constitution is a county function and that under section 3 of EMCA the court may compel a public officer to take measures to prevent or discontinue any act or omission deleterious of the environment or its restoration. 19. Section 9 (2) of EMCA provides that NEMA can coordinate environmental management activities being undertaken by lead agencies and integrate environmental consideration into development plans, programs to prefect the improvement of the quality of life in Kenya. The court in **Elizabeth Kurer Heir (Supra)** found that there were complaints of loud noise made against the 4th and 5th respondents, and that the 1st and 2nd respondents had failed to comply with their constitutional mandate to control the noise emission which was also a violation of applicant’s rights. 20. In Minister of Environmental Affairs vs trustees for the Time being of the ground trust and others (2025) (2ASCA) 43 (2025) (4) SCA 11.4.2025) the court emphasized that a human right based approach is not only about accountably of individual but also about institutional role of ensuring that both standards and the principles of human rights are integrated in policy making as well as day to day running of organization. The court cited with approval government of the **Republic South Africa vs Grootboom (2000) 11 BCLR 1196** that mere registration is not enough since the state is obliged to act to achieve the intended result. The court also cited **Mazibuko & Others vs city of Johannesburg and others (2009) to ACC13** that the concept of progressive realization of protected rights recognizes that policies formulated by the state need to be reviewed and revised to ensure that the realization of socio and economic rights is progressively achieved. 21. in **Malindi Residents Development Group & Another Vs County Government of Kilifi and Others (2026) KEELC 3835 KLR (20.5.2026) (JUDGMENT),t**he court emphasized that the right to general satisfactory environmental as guaranteed under article 26 of the applicant charter on human and people’s rights imposes clear obligations upon a state to take measures to prevent pollution and ensure sustainable development. 22. The court said that county government are responsible for waste management and for ensuring safe environment. The court held that the existence of the uncontrolled dumpsite and pollution caused by improper waste management clearly violates the petitioner right, to clean and healthy environment and the right to highest attainable standards of health clean and safe water and reasonable sanitation standards. The court cited **Waweru vs Republic (2006) KECHC 3202 (KLR)** that the right to life maybe threatened by many things including the environment. 23. In **EPZ & Others vs NEMA (2024) KESC 75 (KLR)** ,the court held that under article 69 of the constitution EMA has statutory duties under EMCA to safeguard the environment including the enforcement capability under section 117 by ordering immediate closure of any establishment polluting the environment or by undertaking to implement any remedial measures that an environment inspector may direct under section 108 – 116 thereof. 24. The court said that under section 141 & 142 of the act it is an offence to fail to manage hazardous waste and materials polluting the environment. The court held that despite the huge mandate NEMA has failed and was negligent in the conduct of its duties, which assisted metal refinery in breaching the law instead of holding them accountable. 25. On the casual link between the actions of NEMA and damage suffered by the appellant, the court said that there was no doubt that NEMA acts and inaction provided the casual link between the metal refinery negligence and injury occasion to the appellant. The court said NEMA had on numerous occasion the opportunity to avert the discharge from the factory but clearly faulted, leading to unwarranted suffering occasioned to the Owino Uhuru Villagers. The court held that NEMA bore a greater responsibility for either being passive or reactive among other actors in relation to the pollution. 26. The court held that the state and its organs and agencies can be responsible even to actions of private persons and that the provisions of Article 42, 69 and 90 of the Constitution relates to both an individual and collective dimensions. 27. The court said that under Section 115 – 120 of the Public Health Act the NEMA had an obligation to have metal refinery remove any nuisance but it failed to do the same. 28. It is not disputed that NEMA has both,inqusitorial, investigative,advisorial,supervisory,stoppage, and prosecutorial powers. In this petition, while it is admitted that the petitioner lodged a complaint with NEMA there is no evidence other than referring the complainant to the 3rd respondent, that NEMA used all the other available methods to execute its statutory mandate to curb the pollution .to stop the polluter ,or the proponent of a dumping site .There is no evidence that nema sought to ensure the polluters or occupiers must carry out an EIA to be issued with a license by NEMA under section 58 of EMCA. 29. A dumping site cannot be operational without a EIA licence as was held in **Hali conflict quarries and 4 others vs county government of Machakos (KPLC) (IP) (2020) eKLR.** The court also said that the county government of Machakos had constitutional mandate on refuse removal, refuse dumps and solid waste disposal hence the identification and operation of waste disposal site was within its mandate. 30. The court also held that unless section 87 (4) of EMCA guidelines of issuance of a license for waste disposal are not including the security of the site by way of a fence and a gate managed by a county government official section 87 makes it illegal to operate a dump site without a license from NEMA under regulation 10 of the environmental management and coordination waste management regulations 2006 ,which the court found are within the enforcement of the 1st respondent. 31. Operation of an unlicensed disposal dump site next the petitioners land and on a road reserve endangers both the petitioner and members of the public and constitute a criminal offence under section 87 (5) of EMCA. Section 9 (1) of the sustainable waste management act 2022 provides that county government shall be responsible for implementing the devolved functions of waste management including to establish waste management infrastructure, management, development and maintenance of designated disposal site and registration of waste service providers. 32. In **Kindiki vs Christian Foundation Fellowship Church Mpakone 2024 KEELC 606 3 (KLR)** the court held that Article 21 of the constitution mandate states, organization such as the respondent hearing to observe, respect, protect, promote and fulfil the bill of rights and safeguard the rights of all citizens. The court said that a duty bearer who has derelicted its constitutional duties especially a state organ under article 19, 20 & 21 of the constitution is estopped in law from invoking the non exhaustion doctrine when an aggrieved party involved article 2022 (2) and 24 of the constitution to enforce those rights and freedoms, since the state is a duty bearer on matters human rights. 33. The court cited with approval **Odando & Another vs NEMA (2021) KEELC 2235 KLR**,that pollution is defined under EMCA as any divert to indirect alteration of the physical, natural, chemical, biological or radioactive properties of any part of the environment by the discharge, emission, disposal of waste so as to affect any beneficial use adversely to cause a condition that is hazardous or potentially hazardous to public safety. 34. Under Article 69 (1) of the Constitution the 1st, 2nd & 3rd respondent are obligated to eliminate any activity or process likely to endanger the environment. The 1st respondent under section 9 (1) of EMCA bears the primary responsibility in preventing pollution or activity endanger the environment. The 1st respondent is not only an investigator but also a prosecutor of all those who are alleged to have threatened, breached and or violated environmental rights. The 1st respondent offers both technical and coordination roles in environmental matters as held in **Martin Osano Rabera & Another vs Municipal County of Nakuru (2018) eKLR.** 35. As part of National Government, NEMA has statutory obligations under Article 169 (1) of the Constitution to take,collect,investigate,act and inquire on receipt of complaints or evidence of threatened breach or violation of the constitutional right to clean and healthy environment. In this petition NEMA was presented with an EIA report, which it acknowledged receipt of but did nothing. The 1st and 3rd respondents before this court said nothing about that report. In **Kiboss Distributors Limited vs Benson Ambuti Ndega & Others (2020) eKLR**,the court observed that pollution is primarily proved by imperial technical and scientist evidence and not through a lawyers opinion testimony and disposition. 36. The petitioner claim in the petition is on both pollution and a nuisance. As held in J**ohn Chamia Nganga vs Attorney General & Another (2019) eKLR** and **in Orbit Chemicals Industries vs Professor David M Ndetei (2021) Eklr**,nuisance is an act or omission that interferes, distract or annoys a person’s rights in connect with land, caused when the acts of bringing or producing by a person’s actions on his land are not confined to the land but escape from his land causing interferance with the neighbors use or enjoyment of their land. 37. Section 3 (3) (b) and part iii of EMCA is clear that it is not necessary for the petitioner under the Act to show a right or interest in the property, or land alleged to have been or likely to be harmed see **John Mutunga Waititu vs China Wu yi (K Co Limited) (2018) eKLR.** 38. That notwithstanding the nexus between the petitioner, the parcel numbers and the public land alleged to be a dumpsite or occupied by the polluters have been disclosed in the petition and supported through evidence. The 2nd and 3rd respondents have admitted and confirmed conducting a site visit and thereby establishing the nexus between the complaints, the petitioner as the complainant, the offensive activities and the locus in quo. See **Africa Centre for Rights and Governance and Others vs Municipal council of Naivasha (2017) (eKLR**). 39. From the evidence tendered and the law the 1st, 2nd and 3rd respondents have immense statutory powers, duty, roles and responsibilities as lead agencies to safeguard the environment and protect, promote and uphold the bill of right. In this particular complaints by the petitioners the respondents individually and collectively had the opportunity to discharge those statutory duties to at the very least investigate, inquire, stop, prevent and arrest the threat to or breach of the rights to clean and healthy environment. Good faith, failure to perform and deliberate abandonment of official responsibility is what amounts to dereliction of duties. 40. From the replying affidavit and the submissions by the respondents the court is invited to hold and find that the conduct of the 1st and 3rd respondents in handling the petitioner’s complaints did not infringe the fundamental rights and freedoms of the petitioner in any manner generally and in particular that Article 42 of the Constitution only imposes obligation on the state, whose enforcement is the 3rd respondent are not NEMA. 41. In **Attorney General Vs Okoiti and Others Civil Appeal E416 of 2021 (2025) KECA 309 KLR 21.4.2025 (Judgment),** the court took the view that in interpreting a constitutional provision, containing a fundamental right or one created towards the realization of a constitutional aright the court should adopt a dynamic, liberal, progressive and a flexible approach keeping in view the people of kenya, the socio, economic, political and cultural values, to extend the benefit of the same to the possible maximum. 42. The primary purpose of a constitutional remedy is to vindicate a guaranteed right and to prevent or detest future infringement as was held in **Gitobu Imanyara & Others vs Attorney (2016) EKLR.** 43. **Article 70 (2 &3) of the Constitution** says that an applicant to an alleged breach of the right to clean and healthy environment need not demonstrate any personal incurred loss or suffered injuries. 44. Article 22 of the Constitution grants petitioner rights to move the court in person or in the interest of a group, class of persons, in association or in public interest. The petitioner as alluded above has disclosed a staTUS and nexus with the environment with which the surroundings are under alleged threat of infringement, breach or exposure to pollution or nuisance. There can be right without a remedy. The duty to safeguard and eliminate, deter, or prevent process or activities likely to endanger the environment under Article 69 (1) of the Constitution and section 3, 5, 9, 71, and 142 of the EMCA reposes with both 1st and 3rd respondents as was held in **Martin Osano Rabera & Another vs Municipal Council of Nakuru (2018) eKLR.** 45. The petitioner has displayed complaint letters dated 25.9.2023 and 9.1.2024 attached as annexure marked RS2(a) 2(b) in which it was seeking for the restoration of the environment in the area adjacent to its plot. The petitioner deposes that the 3rd respondent has in law an obligation to remove the refuse, regulate, control and manage the dump solid waste and so is the 1st respondent to issue nema licenses and to stop such harmful activities to the environment 46. . The petitioner relies on a copy of an Environmental assessment report dated 19.7.2023 marked as annexure RS (4) which it caused to be undertaken on its own investigation following failure by the 1st,2nd and 3rd respondents to act. The report shows there has been wanton pollution, destruction of land and blockage of waste paths and sewage leading to fragrant environmental degradation. Photographs to that effect has been attached to as an annexure marked RS (5). 47. The petitioner avers that garbage has been illegally been dumped on the road adjacent to its plot now leading to obstruction of the road and gates to road C in industrial area Nairobi County contrary to section 87,88 and 89 of EMCA. The 2nd respondent is blamed for abdicating its responsible to making the road which is said to have degenerated less than two years after its reconstruction under section 10 of the Kenya Roads Act. The 2nd respondent is silent on this other than alleging that this is part of Kenyans problems which this court cannot solve through litigation. It is a sad day for Kenya when public entities show such kind of attitude for dereliction of statutory duties. 48. The petitioner avers that out of all these acts of neglect by the respondents it has suffered loss of business and tenants have terminated their leases as per letter attached as RS 7 (S) and 7 (B) to the supporting affidavit. Expert report fall under section 97 (1) of the evidence act expert reports can only be challenged through viral report. 49. In **Kiboss Distillers Limited vs Benson Ambuti** the court said that pollution is primarily proved through empirical technical and scientific evidence and not through a layman’s opinion. Mere assertions by the respondents to challenge, contradict or vitiate an expert report relied upon by the petitioner is not enough. Expert opinions are admissible as held in **Stephen Kinini Wangondu vs the Ark Limited (2016) KEHC 3449 (KLR)** to prove the facts underlying the opinion. In **Rutere and 11 others vs Reynolds Construction Company (NIG) Limited (2024) KEELC 5369 KLR the Court cited NEMA & Another vs KM (Minor) Supra** that under Article 69 of the constitution, NEMA can employ systems on suit on environmental impact assessment, environmental audits and environmental monitoring as a means of being more proactive than being reactive as a preventive measure designed to reduce or eliminate the risk of environmental damage. 50. Regulation 17 of EMCA waste management regulations 2016 provides that no person can engage in an activity that is likely to generate hazardous waste without a valid EIA license. The petitioner has proved its closeness to the dumpsite where the impugned activities are taking place. The respondents have equally admitted that fact generally and in particular the 2ndand 3rd respondents who visited the locus in quo. So the respondents are estopped in law from denying that the petitioner is likely or directly proximate to the alleged pollutant or nuisance. See **Mohamed Ali Baadi & Others vs Attorney General & Others (2018) eKLR**. 51. The court therefore finds that the petitioner has not only proved to be a land owner, user, occupier or neighbor in the subject matter of the petition but also suffered environmental loss and damage. The cited constitutional and statutory provisions above by the petitioner indicate that the respondents hold collective duties to respect, protect and uphold the petitioners rights to clean and healthy environment by effecting systematic laws, policies, institutional and governance system at their disposal. 52. Whether there is breach of right to clean and healthy environment , harm or degradation of the environment is a question of fact to be proved through evidence as held in **Kiboss Distillers vs Ambuti Andega & Others (2020) eKLR**. The causal link between the leading to the alleged pollution is captured in the EIA report before this court. The failure by NEMA and the county government as well as the 2nd respondent to take remedial measures despite receipt of the complaint letters and the EIA report corroborate the petitioner’s case that the 1st and 3rd respondents despite the constitutional and statutory ro.es ,duties, responsibilities and power left it to suffer the risk, loss and damage by the pollution. 53. Section 108 of EMCA gives NEMA powers to take action to prevent the continuation or cause of pollution, restore land, prevent any cause of environmental hazard and to cease any action causing or contributing to pollution or an environmental hazard. There is no evidence that the 3rd respondent issued a restoration order under section 109 of the EMCA. 54. In the **Elisabeth Kurer Heier and Another vs County Government of Kilifi and 4 Others (2020) eKLR** the court held that the neglect or failure by both NEMA and county government to exercise their statutory mandate under both the constitution and EMCA, despite numerous complaint to curb the nuisance felt the court with no option but to declare the right of the resident failing to take any or sufficient precaution ally measures against causing or preventing nuisance thereby defiling causing the enviroemt unfit for habitation as residential or agricultural use, thereby interfering with quiet enjoyment of life 55. Interference with the environment and acts of nuisance attracts damages payable by the defaulter as held in **Orbit Chemical Industry vs Professor David M. Ndetei (2021) eKLR and in Chebii & Others vs SBI International Holdings (K) and another (20243) KEELC 329 eKLR**. 56. In **Adrian Kamotho Njenga vs Council of Governors the court** held that the right to a clean and healthy environment is an entitlement of present and future generations. In **Moffat Kamau and 9 Others vs Aelous Kenya Limited and 9 Others 2016 eKLR** the court said that where the procedure for the protection of the environment are not followed then assumption may be drawn that the right to clean and healthy environment is under threat. The court further in **Halai Concrete and Others vs County Government of Machakos ELC PET No. 19 of 2022** held that precautionary principle is applicable where there were threats of serious or irreversible damage not withstanding lack of a scientific uncertainty in order to comply with co-effective preventive measures of environmental degradation. 57. The petitioner has produced an EIA report as a guide to the court in making an informed decision as was held in **Samuel Muniu Mugo vs County Government of Nyandarua (2018) eKLR**. Right to life has been said to include the right to enjoyment of pollution 3 environment, protection and preservation of the environment. Reducing, eradicating and or preventing adverse effect on the environment to the neighborhood occupants is what the petitioner had asked the respondent to do which they failed, neglected, or overlooked leading to the filing of this petition. 58. Upholding, enforcing and finding the right to clean and healthy environment as duties or responsibilities which are binding on the respondents , who knew or ought to have known used or employed the statutory, institution at their disposal to uphold respect and be mindful of the petitioners right as immediate neighbors of the subject area is what the court must and now upholds. 59. The upshot is I find the petition proved to the required standard the court grants prayers number (a) (b), (d) (e) and (f).The prayer for general damages is granted to the extent of Kshs. 1 million to be paid by the 1st, 2nd and 3rd respondents jointly and severally. Costs of the petition to the petitioner. **DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY, 2026** **HON. JUSTICE C.K NZILI** **JUDGE** **In the presence of:** Court Assistant: Julius Njeru for the Petitioner Ms Kivina for the 2nd Respondent Interested Party Present Ms Kaburia for the 1st Respondent Ms Karanja for the 3rd Respondent.