Automated Summary
Key Facts
The petitioners, including the African Centre for Rights and Governance (ACRAG) and three individuals, filed a constitutional petition on 31 October 2012 against Naivasha Municipal Council. They sought a declaration that the Council violated their rights under Article 42 of the Kenyan Constitution (right to a clean and healthy environment) by operating a dumpsite on Naivasha/Maraigushu Block 11/4 (Karai). The petitioners requested mandatory and prohibitory injunctions to relocate and restore the dumpsite, an environmental restoration order, and costs. The Council opposed the petition on 2 October 2013, arguing the application was incompetent and would cause injustice. The court allowed the petitioners' application for public notice on 23 July 2013, citing no prejudice to the respondent and applying principles from the Rose Florence Wanjiru case. The ruling was delivered on 14 November 2014, affirming the petitioners' right to public interest litigation under Articles 22 and 23 of the Constitution and Section 19 of the Sixth Schedule.
Issues
- The petitioners sought a prohibitory injunction to restrain the respondent and their agents from continuing to dump refuse on the suit property, which is designated as Block 11/4 (Karai) in Naivasha.
- A mandatory injunction was requested to compel the respondent to relocate the dumpsite on Naivasha/Maraigushu Block 11/4 (Karai) to another location and to restore the affected site to its original condition.
- The petitioners sought a declaration that the respondent violated their rights under Article 42 of the Constitution of Kenya 2010, which guarantees the right to a clean and healthy environment due to the Naivasha/Maraigushu Block 11/4 (Karai) dumpsite operations.
- An environmental restoration order was requested to ensure the rehabilitation of the Naivasha/Maraigushu Block 11/4 (Karai) dumpsite following its relocation.
- The court addressed whether public interest litigation could proceed under Article 22(1) and (2)(c) of the Constitution of Kenya 2010, which permits any person acting in the public interest to institute court proceedings. This included evaluating the application to publish the petition in a national newspaper to invite public participation, referencing statutes like the Environmental Management and Co-ordination Act 1999 and procedural rules such as the Mutunga Rules.
Holdings
The court allowed the Petitioners' Notice of Motion dated 23rd July, 2013, granting permission to publish the notice in a national newspaper to invite interested parties to join the petition. The court determined that there was no prejudice to the respondent and that the application was in the public interest. Costs were awarded in the cause.
Remedies
- The court orders that costs shall be in the cause, meaning cost allocation will be determined based on the outcome of the proceedings.
- The court grants the petitioners' application to publish notice of their petition in a daily newspaper of wide national circulation, allowing interested parties to apply to be joined in the case. This remedy facilitates public participation in the litigation.
Legal Principles
The court applied Article 22(2)(c) of the Constitution of Kenya 2010, which permits public interest litigation, and Rule 5(d) of the Mutunga Rules, granting courts authority to add necessary parties to achieve justice. These principles were pivotal in allowing the petitioners to seek public involvement in the case.
Precedent Name
- Rose Florence Wanjiru v Standard Chartered Bank of Kenya Limited & 2 others
- Wangari Maathai cases
Cited Statute
- Environmental Management and Co-ordination Act 1999
- Constitution of Kenya 2010
- Constitution of Kenya (protection of rights and fundamental freedom) practise and procedure Rules 2013
- Civil Procedure Rules 2010
Judge Name
L N WAITHAKA
Passage Text
- Article 22 (1) provides; "Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened."
- Section III (2) [of the Environmental Management and Co-ordination Act] provides; "It shall not be necessary for a plaintiff... to show that he has a right or interest in the property... alleged to have been or likely to be harmed"
- Rule 3 (4) provides: "The Court in exercise of its jurisdiction under these rules shall facilitate the just, expeditious, proportionate and affordable resolution of all cases."