Mwaniki & 2 others v Gicheha & 3 others [2006] KEHC 12 (KLR)

Mwaniki & 2 others vGicheha & 3 others

High Court, at Nairobi June 9, 2006

Aluoch J

Civil Case No 313 of 2000

Locus standi- right to a clean and healthy environment – whether

complainants who are not land owners have a right to commence action

in the High Court to enforce their rights – provision of section 3(3) of the

Environmental Management and Coordination Act, 1999.

The plaintiffs filed a suit against the defendant seeking a permanent

injunction to restrain the defendants from constructing or continuing to

construct a slaughter house in the parcel of land known as Plot No. Zone

6 within Limuru Township. Their case was grounded on the fact that the

construction was in contravention of the law specially particularly 58 and

75 of the Environmental Management and Co-ordination Act, 1999, as

they had neither sought nor obtained a license to discharge effluent, nor

had they undertaken an environmental impact assessment. They also

complained that the failure to comply with these statutory provisions was

likely to cause injury to them and was a violation of the plaintiff’s basic

right to a clean and healthy environment.

In their evidence, which was not challenged due to the non-attendance by

the defendants, it was stated that the slaughter house was bound to affect

negatively the lives of the people neighbouring it when it starts to operate

as it was close to their homes and the smell and affluent would be too

much for them to bear. This was in light of the fact that no sewage had

been built for the disposal of waste from the slaughter house. In any event,

there was a probability that diseases may be spread to their families. The

plaintiffs attempts to notify the National Environmental Management

Authority of their conduct had not been heeded.

The defendants, in their defence, stated that the slaughter house was being

constructed to international standards and with specific regard to waste

disposal and in accordance with all relevant provisions of the law and

council by laws.

Held:

1. The defendants were likely to contravene the provisions of section 75

of the Environmental Management and Co-ordination Act, 1999, as

they had not made any provisions for disposal of effluent discharge,

yet their butchery was almost ready for use.

2. The plaintiffs, though not the owners of the land in dispute, nevertheless

had the authority to sue, such authority being derived from section 3

(3) of the Environmental Management and Co-ordination Act, 1999,

which states if a person alleges that the entitlement under subsection

(1) to a (clean and healthy environment) has been, or is likely to be

contravened in relation to him, then without prejudice to any other action

with respect to the same matter which is lawfully available, that person

may apply to the High Court for redress and the High Court may make

such orders, issue such writs or give directions as it may deem

appropriate, to prevent, stop, or discontinue any act or omission

deleterious to the environment.

Application allowed.

Cases

No cases referred to.

Statutes

1. Environmental Management and Co-ordination Act (No 8 of 1999)

sections 3(3); 58; 75

2. Public Health Act (cap 242)

3. Physical Planning Act 1996 (Act No 6 of 1996)

June 9, 2006, Aluoch Jdelivered the following Judgment.

The 3 plaintiffs, namely Peter Kinuthia Mwaniki, Thomas Njoroge Kamau

and Jackson Keya Gathu, sued the 4 defendants namely Peter Njuguna

Gicheha, James Matara Chege, James Chogi Thotho and Limuru Butchers

Union, jointly and severally, seeking

“a permanent injunction to restrain the defendants, their

agents and servants from constructing or continuing to

construct a slaughter house in the parcel of l and known

as Plot No Zone 6 within Limuru Township. The

plaintiffs also prayed for costs of the suit”.

The plaintiff’s suit is grounded on the fact that the defendants have

contravened the law in that their act of building a slaughter-house in the

neighbourhood,

“is in contravention of sections 58 and 75 of the

Environmental Management and Co-ordination Act, as

they have neither sought and/or obtained a license to

discharge effluent, nor have they undertaken an

environmental impact assessment, or obtained an

environmental impact assessment license...”

The plaintiff claimed further in para 14 of the plaint,

“Further, the plaintiffs aver that in failing to comply

with the above stated environmental statutory

provisions, the defendants acts are likely to cause injury

to the plaintiffs and is a violation of the plaintiffs basic

right to a clean and healthy environment”.

The defendants denied the plaintiff’s claim in the defence and at para 8

thereof stated,

“Further, the defendant state that the Environmental

Management and Co-ordination Act does not apply

retrospectively, but in any event the defendants have

not breached any of its provisions”.

Together with the filing of the suit, the plaintiff’s also moved the court

for an injunction order to stop the construction of the slaughter house.

However, their application was dismissed on 21st March, 2000, when the

court found that the defendants had spent more than Kshs 3,000,000/=

for the project, and the plaintiffs had not provided security for costs, to

warrant the grant of the injunction order sought.

The plaintiffs and their witnesses were present in court for the hearing of

this suit on 16. 5.2006, but not the defendants or their lawyer who had

been served with a hearing notice. The affidavit of service was in the

court file. No explanation was given why neither the defendants nor the

lawyer was in court. In the circumstances, I proceeded with the hearing

of the suit, and recorded the evidence of all the 3 plaintiffs plus their

witnesses.

They all confirmed that the slaughter house is almost completed, but no

work has started in it.

The complaint in their evidence was that the slaughter house will affect

peoples lives negatively when it starts to operate. That there will be blood

flowing from there which will obviously mix with sand and mud and spill

onto their homes and farm land. All the 3 said that the slaughter house is

very close to their homes. That they all share a fence with the slaughter

house which also borders a church and children’s home.

The 1st plaintiff complained that the smell and affluent from the slaughter

house will be too much for him as his house is very close to the slaughter

house.

He produced as exhibits in court, the letters of complaint which he wrote

to Limuru Municipal Council, NEMA, the Ministry of Environment and

the Ministry of Livestock and the then Njonjo Commission on Land, which

was the only body which replied to his letters of complaint.

The 1st plaintiff produced 3 photos showing the proximity of the slaughter

house to its neighbours, such as his home and the Children’s home and

the church. The 1st plaintiff asked the court to stop the defendants from

starting the slaughter animals in the building already constructed and is

near completion, and stop them from completing it.

The 2nd plaintiff too, testified that the slaughter house will be a nuisance

when the slaughter of animals start. That the foul smell from the slaughter

house will affect him and his family, and being a farmer, his home will be

affected as the cattle for slaughter will be walking past his home to the

slaughter house. He was concerned with the fact that such animals will

drop ticks around his farm and this is likely to bring diseases to his family.

He testified further that no sewage has been built for disposal of waste

from the slaughter house. He confirmed the evidence of the 1st plaintiff

that they have been writing letters to various authorities including NEMA

to stop the construction of the slaughter house, but to no avail.

The 3rd defendant lives about 500 meters from the slaughter house, which

is on the east side and his home is on the western side.

He complained that the wind will be blowing the smell and dirt from the

slaughter house to his home and the church as well as the Children’s

home. He feared that the operations of the slaughter house might start

soon, as the building is completed and is currently being painted, ready to

start work. He confirmed that there is no sewage disposal system built

together with the slaughter house, as such, he lamented that the dirty water

from the slaughter house will flow onto his farm as well as those of other

neighbours, and the cemetery on the lower side. He also lamented that

the dirty water will damage his crops, that is why he together with other

neighbours are trying to stop the operations of the slaughter house.

Joseph Mburu Waiganjo lives in Limuru, and is also an immediate

neighbour with the 4th defendant, the Limuru Butchery Union. He too,

like the other complainants share a fence with the slaughter house, and

his fear is that since he lives on the lower side of the land which slopes to

his side (home), the affluent from the slaughter house including the run

off likely to flow from the slaughter-house will be washed to his farm

land, and because he is a farmer, he fears that pests like ticks from cattle

coming for slaughter will find their way to his animals and infect them.

The witness confirmed that it is the first, second and third defendants

who are directing the construction of the slaughter house, as they are

members of the 4th defendant. He also confirmed that the slaughter house

borders the public cemetery, which the residents use for burial. That it

also borders St Anthony’s Women and Children Home as well as St. Francis

of Assissi Church. He fears that the slaughter house will produce foul

smell, and further, that his children might be traumatized by the slaughter

of animals and the blood flowing from the slaughter house as no drainage

system for waste has been provided by the defendants.

The witness confirmed that their complaint to NEMA was not responded

to, not even the one to the Limuru Municipality, whom they asked to stop

the construction of the slaughter house in the neighbourhood.

The photos produced in court as exhibits were shown to him and from

them he identified the slaughter house. The photo 4(b) shows St. Anthony

Women Centre, which is separated from the slaughter-house only by a

road. In photo 4(a) is a cemetery which shares the same fence with the

slaughter house. The witnesses’s home is just behind the slaughter house.

All the witnesses referred to the minutes of a meeting produced as Ex 3 a

meeting of Limuru Municipality where they were all represented by a

Catholic father from St. Francis Catholic church, their neighbour.

According to the minutes, the meeting resolved that the building of the

slaughter house should not continue, but the defendants did not head this

as they just continued with the construction.

The witness prayed the court not to allow the slaughter house to start

operations, because it poses

“a huge danger to him and his family and the

neighbours, and indeed the community living around

it. That the danger posed is pollution...”

It was this witness who signed the letter of complaint written on behalf of

the plaintiffs and the neighbours on 6. 2.2006 to the Director General of

NEMA. The complaint was that when the District Environmental

Committee came to inspect the slaughter house, the community living

around including the plaintiffs were not allowed in the inspection tour, so

they did not give their views.

That subsequently the community asked for an environmental assessment

report, but this too was denied. The Director General of NEMA did not

respond to the letter, and the neighbours therefore feel desparate and

helpless in this matter, and that is why they are turning to the court to stop

the slaughter house from beginning its operations.

Finally was a witness from Limuru Municipal Council, Councilor Peter

Njuguna Mwangi of Limuru Central Ward.

He is aware of the presence of the slaughter house built in Kamirithu

ward, which neighbours his ward. He is also aware of the complaints of

the plaintiffs and several other neighbours.

He confirmed that as per the records of the council, the slaughter house

has been built on a plot which was earmarked for a cemetery, so the same

was not allocated to anybody.

That the council expected Limuru Butchers Union, the 4th defendant to

present building plans to the council for approval, but this was not done.

Councilor Peter Njuguna Mwangi knows the first 3 defendants who are

members of Limuru Butchers Union, and who have built the slaughter

house, however, he did not know who authorized the building of the

slaughter house in that plot.

He testified further that normally, building plans would first be presented

to the District Health Officer, the District Physician Planning Officer for

approval. He is the Chairman of the Land repossession committee, which

deals with irregularly and illegally acquired plots. He confirmed that

according to the council records, the plot where the slaughter house is

built was reserved for a cemetery and must have been acquired illegally.

He recalled sometime in 2000, when the 4th defendant, the Limuru Butchers

Union and St Francis Catholic church came to the council, having a dispute

over this matter because the Union wanted to build a slaughter house and

the church protested. The council held an informal meeting at which the

Union (4th defendant) was asked to produce evidence of ownership of the

plot, but they were unable to do so, and the council directed them not to

undertake any construction on the plot as it was a cemetery. The Union

defied and started construction which is almost completed by now.

The witness was present at the meeting held by the council on 14. 7.2005.

This was a meeting of the Ordinary Works Town Planning and Housing

Committee. The meeting deliberated on the slaughter house which was

already under construction, and resolved that the Union should pull down

and demolish the slaughter house as they had failed to produced documents

of ownership. The witness produced as exhibit 6 the deliberation of that

meeting which he attended. The Butchers Union defied the council

resolution and continued with the construction.

After the meeting on 14. 7.2005, the matter was put before the full council

meeting in March, 2006. The decision of the committee that the Butchers

Union stops construction and pulls down the slaughter house was accepted

by the full council.

The witness was aware of the meeting of 29. 9.99, whose minutes were

produced as Exh.3 in court. This was a liason committee meeting chaired

by the District Commissioner Kiambu. It was deliberating on the issue of

the slaughter house. It was attended by 3 council members and a catholic

father from the neighbouring St. Francis Church. One of the resolutions

reached at that meeting was that Limuru Butchers Union should stop the

construction of the slaughter house, since they had no document of

ownership.

The councilor confirmed that the slaughter house is an illegal structure

which the council would have pulled down had it not been for the meeting

of 28. 7.2005, chaired by the DC Kiambu who wanted both Limuru

Butchers Union and the Catholic Church to come to some arrangement

on the way forward and gave them time to discuss the matter further.

The DC’s meeting nevertheless resolved that an “impact assessment” be

undertaken by the District Environmental Committee, comprising all

departmental heads in Limuru Municipality.

The records at the council show that the “impact assessment”, was done

but the report has never been tabled before the full council. Also the

community living around the slaughter house were not involved,, so they

complained to the Director General of NEMA, who did not respond to

their complaints.

According to the witness, the decision of the council still stands that the

slaughter house should be pulled down, as the Union has never produced

to the council authentic evidence to show that it was allocated this plot by

the Commissioner of Lands.

The defendant’s filed a defence to this suit on 30th August, 2001. It is

dated 17th August, 2001. Para 7 thereof the defendants stated,

“The defendants deny the contents of para 13 and state

that the slaughter house is being constructed to

International Standards and with specific regard to

water, waste disposal and in accordance with all relevant

provisions of the law and council by-laws”.

I had already outlined the contents of para 8 earlier in this judgment.

Counsel for the plaintiff filed written submissions at his request to the

court. He summarized his client’s case, from the oral evidence adduced

and on the law, he submitted that, apart from the provisions of the Public

Health Act, cap 242, Laws of Kenya, and the Physical Planning Act cap

286, Laws of Kenya which the witnesses said had not been complied

with by the defendants, the advocate also submitted that Section 3 of the

Environmental and Management and Coordination Act, 1999, had been

breached. The section provides,

“Every person in Kenya is entitled to a clean and healthy

environment and has the duty to safeguard and enhance

the environment”.

The advocate also drew the court’s attention to section 58 and 75 of the

Act, which deal with assessment license and license to discharge effluents

respectively, as the witnesses testified that the defendants have not

complied with the requirements of these sections of the Law.

As I stated earlier in this judgment, neither the defendants nor their lawyer

appeared in court, though they had been served. Because of this, the

evidence of the 3 plaintiffs and their witnesses was not challenged, so I

accepted it as true.

I also examined the exhibits produced by the witnesses which show that

the dispute between the plaintiffs and other members of Kihingo

Community in Limuru Municipality and the defendants over construction

of a slaughter house started quite sometime back and in 1999, the District

Commissioner, Kiambu intervened, when he chaired a meeting of the

Limuru Municipal Council Physical Planning Liason Committee in his

office on 29. 9.99. All heads of departments in the Municipality, including

the Mayor and Town Clerk as well as the Father in Charge of the Catholic

church, were present. The main agenda of the meeting was given as,

“to resolve the conflict between the Limuru Catholic

Church and the Limuru Butchers Union on the proposed

slaughter house”

and as evidence already given in court shows, the Limuru Butchers Union

was ordered

“to stop forthwith with effect from 29. 9.1999 any further

construction of the proposed slaughter house... until they

obtain a letter of allotment from the Commissioner of

Lands, and also submit for approval their building plans

as required under the Physical Planning Act from

Kiambu County Council and other relevant

authorities...”

Evidence on record has shown that the defendants defied all directions

and continued with the construction of the butchery which is almost

completed as at the date of the hearing of this suit.

Turning to the defence filed, and particularly at paragraphs 7 and 8 which

I outlined in this judgment, I find that no evidence was adduced in court

to show that the

“slaughter house was being constructed to International

Standards, with specific regard to water, waste

disposal....”.

I reject this defence, going by the evidence on record which shows that

no system of waste disposal has been provided by the defendants. I also

reject the defence in para 8 because I believe the plaitniffs’ evidence which

shows that the defendant breached the relevant provisions of the

Environmental Management and Coordination Act, 1999, especially

sections 58 of the application for an Environment Impact Assessment

License, which the defendants did not and still do not have.

As the defendants have not made any provisions for disposal of effluent

discharge, yet their butchery is almost ready for use, I find that they are

likely to contravene the provisions of Section 75 of the Act.

Though the matter of “locus” was not raised in the defence or the issues

filed in court, I nevertheless feel that I must refer to it, and say that the

plaintiffs, though not the owners of the land in dispute, nevertheless have

the authority to sue, such authority being derived from Section 3(3) of the

Environmental Management and Co-ordination Act, 1999 which states,

“If a person alleges that the entitlement under subsection

(1) (to a clean and healthy environment) has been, or is

likely to be contravened in relation to him, then without

prejudice to any other action with respect to the same

matter which is lawfully available, that person may

apply to the High Court for redress and the High Court

make orders, issues such writs or give directions as it

may deem appropriate,

(a) “to prevent, stop or discontinue any act or omission

deleterious to the environment”,

In this case I am satisfied that the plaintiffs have locus to file this suit in

the High Court because their entitlement to a clean and healthy

environment is “likely to be contravened” if the defendants who are

members of the Limuru Butchers Union, start their operations of the

slaughter of animals in the butchery they have built and in defiance of all

directions to stop the construction of a butchery whose operations will

breach the provision of the Act.

For this reason I proceed to grant as was prayed “a permanent injunction

order to restrain the defendant, their agents, and servants from continuing

to construct a slaughter house in the parcel of land k known as Plot No

Zone 6, within Limuru Township”

Though the building is near competition the plaintiffs did not pray for an

order for its demolition, that is why I have not gone that far. The suit was

filed in the year 2000, before the construction of the butchery started.

Litigation has taken sometime and the building is now near completion,

so the threat of the butchery beginning its operations of slaughtering of

animals is real. In order to preserve a “clean and healthy environment”,

in this locality, as spelt out in the Act, I grant a further injunction order to

restrain the defendants, their agents and or servants from commencing

the slaughter of animals in the building they have been constructing and

are about to complete.

Finally, I direct that this judgment be forwarded to the Director General

of NEMA, as the evidence on record showed that the plaintiffs cried out

to him for help as late as February, this year (2006) by writing to him

personally and drawing to his attention their plight of a possible

environmental pollution likely to be caused by the defendants who had

disobeyed orders from all quarters, to stop the construction of the butchery.

The situation was made difficult for the plaintiffs when the District

Environmental Committee excluded them from the visit to the site, and

also refused to listen to their complaints, and yet purported to prepare a

report which would have led to the issuance of an Environmental Impact

Assessment license, though according to the Act, this should have preceded

the project.

I also award the plaintiffs the costs of this suit.