ENVIRONMENTAL LAW

LSG201-C002-0068/2021

ENVIRONMENTAL LAW ASSIGNMENT

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 21.03.2024

Legal Opinion on Noise Pollution, Air Pollution and Water Pollution Damage in Mitini
village in Kwetu County in the Republic of Kenya

Background

A local investor by the name Simba, bought land to construct a school. The land is part of
Tajiri forest which boarders Mitini village in Kwetu County, in the Republic of Kenya. Three
months ago, residents of Mitini village were woken up by loud noise from an old excavator,
which had commenced road construction leading to the site. Road construction has taken
longer than expected as the old excavator keeps breaking down and or emitting dark smoke.

Approximately ten acres of vegetation has been cleared at the site, to pave way for
construction of the school and also excavators have been removing large materials from the
site and transporting material excavated from the road and construction site to an open field
near Mitini shopping Centre. Residents were informed that the same will be removed as soon
as a nearby land fill, which is under construction, is completed.

A construction worker at the site confided in one of the community leaders in Mitini village,
that the sanitary facilities at the construction site are insufficient. As such, waste from mobile
toilets is dumped into a nearby stream. Again, motor oil from the old construction machinery
is dumped in the same river thus causing the people living downstream to no longer use the
water in their households, for crops or even for livestock. Yet, agriculture is their mainstay.

These activities have also affected the health of many residents of Mitini village as there have
been complaints of respiratory and hearing problems due to the massive amounts of dust and
noise emanating from the project. Moreover, they have to travel for long distances to fetch
water for domestic use and for animals.

The foregoing background thus gives rise to the need for a careful consideration of several
substantive legal issues that gravitate on the ultimate question of securing appropriate
remedies for the victims of water pollution, noise and air pollution damage in Mitini Village.

Issues for Consideration

The following issues can be framed for consideration:

i). Whether there was an infringement of the rights of the people of Mitini to clean
and a healthy environment.
ii). What is the locus standi for the people of Mitini in instituting a suit against the
ongoing construction.
iii).What are the air, water, noise quality standards as enshrined in the EMCA?
iv). What would be the nature of remedies available for the people of Mitini

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Analysis

(a)Whether there was an infringement of the rights of the people of Mitini to clean and
a healthy environment

Article 42 of the Constitution of Kenya read together Section 3(1) of the Environment
Management and Coordination Act explicitly recognizes the right to a clean environment
with. Under Article 42 of the Constitution every person has the right to a clean and healthy
environment, which includes the right;
(a) to have the environment protected for the benefit of present and future generations
through legislative and other measures, particularly those contemplated in Article 69
(b) to have obligations relating to the environment fulfilled under Article 70

Preamble of the Constitution recognizes the need to respect the environment which is a
common heritage and calls for its sustenance for the benefit of future generations.
Article 2 (6) and 2(5) recognizes treaties and general principles of international law as part
of our laws. This incorporates different environmental treaties and principles into our legal
system.

(b)Locus standi

Under Article 22, Article 70(1), (2) and (3) of the Constitution read together with Section
3(3) of the EMCA recognizes a person’s right to seek redress if his or her right to clean
energy has been infringed. Thus Article 70(1) of the Constitution states that if a person
alleges that a right to a clean and healthy environment recognized and protected under Article
42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person
may apply to a court for redress in addition to any other legal remedies that are available in
respect to the same matter. Article 70(2) On application under clause (1), the court may make
any order, or give any directions, it considers appropriate such as;
(a) to prevent, stop or discontinue any act or omission that is harmful to the environment
(b) to compel any public officer to take measures to prevent or discontinue any act or
omission that is harmful to the environment
(c) to provide compensation for any victim of a violation of the right to a clean and healthy
environment.
Article 70(3) an applicant does not have to demonstrate that any person has incurred loss or
suffered injury.
Under Section 3(3) of EMCA, if a person alleges that the entitlement conferred under
subsection (1) has been, is being 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 such directions as it may deem appropriate to
(a) prevent, stop or discontinue any act or omission deleterious to the environment;
(b) compel any public officer to take measures to prevent or discontinue any act or omission
deleterious to the environment;

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(c) require that any on-going activity be subjected to an environment audit in accordance with
the provisions of this Act;
(d) compel the persons responsible for the environmental degradation to restore the degraded
environment as far as practicable to its immediate condition prior to the damage; and
(e) provide compensation for any victim of pollution and the cost of beneficial uses lost as a
result of an act of pollution and other losses that are connected with or incidental to the
foregoing.

Under subsection (4) A person proceeding under subsection (3) of this section shall have the
capacity to bring an action notwithstanding that such a person cannot show that the
defendant’s act or omission has caused or is likely to cause him any personal loss or injury
provided that such action—
(a) is not frivolous or vexatious; or
(b) is not an abuse of the court process.

Any person from Mitini can file a class action suit on behalf of the fellow members at the
Environment and Land Court established by s. 4 of the Environment and Land Court Act,
2011 pursuant to article 162 of the Constitution which has the status of the High Court.The
Court has original and appellate jurisdiction to hear and determine all disputes in accordance
with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law
applicable in Kenya relating to environment and land .The Court has jurisdiction to hear
cases relating to violation of environmental bill of rights.
The Court in Wangari Maathai [1989] eKLR upheld that everyone has the right
to clean, fresh air. Damages were awarded in cases where the right was violated
and was also stated that any person can bring a suit against anyone who has
damaged the environment or is reasonably likely to damage the environment.

(iii). What would be the nature of remedies available for the people of Mitini
Environmental Restoration Order
Section 108 of the EMCA, NEMA has the authority to issue restoration orders which;
(a) Requires the person on whom it is served to restore the environment as near as it may be
to the state in which it was before the taking of the action which is the subject of the order;
(b) prevent the person on whom it is served from taking any action which would or is
reasonably likely to cause harm to the environment;
(c) award compensation to be paid by the person on whom it is served to other persons whose
environment or livelihood has been harmed by the action which is the subject of the order;
(d) levy a charge on the person on whom it is served which in the opinion of the Authority
represents a reasonable estimate of the costs of any action taken by an authorized person or
organization to restore the environment to the state in which it was before the taking of the
action
which is the subject of the order.
The person whom it is served may be required to;
(a) take such action as will prevent the commencement or continuation or cause of pollution;
(b) restore land, including the replacement of soil, the replanting of trees and other flora and
the restoration as far as may be, of outstanding geological, archaeological or historical

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features of the land or the area contiguous to the land or sea as may be specified in the
particular order;
(c) take such action to prevent the commencement or continuation or cause of environmental
hazard;
(d) cease to take any action which is causing or may contribute to causing pollution or an
environmental hazard;
remove or alleviate any injury to land or the environment or to the amenities of the area;
(f) prevent damage to the land or the environment, aquifers beneath the land and flora and
fauna in, on or under or about the land or sea specified in the order or land or the environment
contiguous to the land or sea specified in the order;
(g) remove any waste or refuse deposited on the land or sea specified in the order and dispose
of the same in accordance with the provisions of the order;
(h) pay any compensation specified in the order.

Environmental restoration orders may also be issued by a court of competent jurisdiction

“against a person who has harmed, is harming or is reasonably likely to harm the
environment.

(iv). What are the air, water, noise quality standards as enshrined in the EMCA and
if clearing of the forest is permitted?
In the case of Jyoti hardware limited Vs National Environment Management Authority
[2018] Upon site visit the Tribunal noted that there was a lot of waste from illegal dumping
and also flowing from the informal settlements along the river bank. The Nairobi County
Government is responsible for ensuring that waste is dumped only at designated waste areas.
The dumping along the river side contributes to the river’s pollution. NEMA has a role under
EMCA to ensure that such pollution does not take place and to compel parties including the
County Government to do their part under the various coercive mechanisms in EMCA to
ensure compliance.
The illegal clearing of 10 acres of the Tajiri Forest is prohibited by Section 34 of
the Forest Conservation and Management Act 2016 (which prohibits
deforestation without a permit), constitutes a violation. According to Peter K.
Waweru V Republic (2006), eKLR the destructive encroachment of the gazetted
forest is punishable and also states that destroying forests without a permit
destroys ecosystems and warrants prosecution. Residents can file complaints
with the Kenya Forest Service to get an investigation done and stop further
degradation. You can also get replanting or conservation easements from the
project owner.

Water Pollution is prohibited by Sections 42,68 and 142 EMCA. Water pollution
is a crime under Section 144. NEMA can accept affidavits and inspection reports
from residents as proof of contamination, according to Sections 108-120. NEMA
can then seal the site, impose fines, and order remediation by the Act. Owners
can be sued under negligence and common law nuisance claims for damages.
Water regulations state that it is illegal for waste from construction sites,
sanitary facilities, or motor oil to be dumped into water sources. Residents can

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file a complaint with the Water Resources Authority (WRA) or NEMA to get an
order to stop the pollution.

Air Pollution Construction dust that exceeds the limit could violate Regulation
7(Air Quality Regulations). Non-compliance with Section 110 is an offense. Air
pollution can be a violation of the pollution prevention regulations if the dust
levels exceed the permitted limit. Residents can contact NEMA to test air quality
and take action if pollution is excessive. The Environmental Management and
Coordination Regulations 2014 (Air Quality Regulations), limit dust
emissions. It is possible to test for excessive construction dust to determine if
Regulation 7 has been violated. In violation of Section 144, it is a crime to fail
to comply.

Pollution of streams, on which residents depend violated their right to clean and
safe water. The contractor can be sued to ensure that the effluents discharged at
the streams have been removed and the residents have access to safe drinking
water. Further residents of Mitini’s right to health have been infringed as they
have respiratory problems and hearing issues caused by construction noise or
dust thus the residents can file a lawsuit and seek damages to cover the medical
costs incurred and any other compensation as may be preferred by the court.

CONCLUSION
The environmental violations of the project violate the rights to a clean and
healthy environment for the people of Mitini.
Residents of Mitini can file complaint suing the contractor and owner with
NEMA for violations to be stopped, to obtain restoration orders, removal of
effluents and financial compensation under the environmental laws. The NEMA
can be contacted by Mitini villagers to request air quality tests. NEMA can order
the contractor to reduce emissions if they detect excessive levels and if they do
not comply EMCA could charge them with violating the air regulations.
Residents may submit affidavits, inspection reports under EMCA Sections 108 to
120 to prove water contamination. NEMA can then issue remediation orders, seal
off a dump site, or impose penalties on offenders. NEMA can issue
environmental restoration orders to enforce the development and redevelopment
of degraded areas under Section 108 of EMCA.
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