Microsoft Word - Casebook on Environmental law

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL CASE NO. 97 OF 2001

RODGERS MUEMA NZIOKA & 2 OTHERS............... PLAINTIFF
VERSUS
TIOMIN KENYA LIMITED.................................... DEFENDANT

BEFORE: THE HON. JUDGE MR. A.I. HAYANGA

Civil Procedure: Temporary injunctions, what amounts to a balance of convenience in a
public interest matter.
Environmental Law: Whether the project at had carried out any Environmental Impact
Assessment. – Environmental Management Coordination Act no. 8 of
1999 S.2, 3, 11, 58,138.
Mining Act Cap 306 -Land Control Act Cap 302 S.22 and 26.

The plaintiffs in this case filed an application by way of chamber summons with two main
prayers first that;

1. an injunction is issued to restrain the defendants from carrying out acts of mining in any
   part of land in Kwale district;


2. That it should be declared that the mining being carried out is illegal.

They also argued that the excavation of Titanium was likely to trigger multifarious environmental
and health problems as provided by research and that they had also not submitted appropriate
Environmental Impact Assessment plans nor a license.

HELD:

1. When deciding on environmental cases, court has to take into consideration failure of the
   decision makers to take environmental factors into account.


2. As for balance of convenience, it is admitted that environmental degradation is not
   necessarily an individual concern, but a public loss and thus any form of feared
   degradation and pollution will be caused to the detriment of the population.


3. Costs should be paid by the respondents to the applicants.

Injunction granted