"The application of this principle to existing activities precludes cessation of the business
or process because of its environmental impact. The definition and interpretation of the
phrase is therefore important in determining the extent of the obligation to remedy and
the consequent degree of pollution permitted in a particular situation. "On consideration of these principles in an environmental case it is not advisable exclusively to
apply simply the old principles of injunction because whereas activity may be objectionable and
ought to be stopped by injunction yet applying the principle in the statute of best practicable
means, it would be still a defence under the Law of Environment that the defendant has done
what he can practically do to prevent and or reduce the nuisance or pollution and may still
continue with the activity in a manner not resulting in cessation of the objectionable activities-
because of its environmental impact.
In my judgement I would say that the breaches of Environmental statute should be looked at
without exclusive trappings of equity in applying the law of injunction under Environmental
Management and Co-ordination Act No.8 of 1999 but to apply them with close adherence to what
the Statute Law prescribes. Section 3 prescribes general principles of application by the court in
adjudicating over this kind of case. First the court is given wide discretion to make such orders by
issuing such writs or give such directions as it may deem appropriate including an order to restore
the degraded environment.
In normal traditional consideration for injunction the Giela Vs Cassman Brown & Co. Ltd.
(1978) EA 358 one has to prove that his legal rights has been unlawfully invaded. Here he does
not need to show all that, because under the EMC such person whose rights would be prejudiced,
under Section 3 of Act 8 of 1999
“Anyone shall have the capacity to bring an action notwithstanding that such a person
cannot show that the defendants acts or omission has caused or is likely to cause him any
personal loss or injury provided that such action is not frivolous or vexatious, or is not an
abuse of courts process."That is a departure from the application of Giella Vs Cassman Brown because here he may not
be having any material legal right."
Here the court is to be guided by principles of public participation, cultural and social principles
and principles of international co-operation, principles of intergenerational and intragenerational
equity, Polluter pays principle and precautionary principles.
Environmental Impact Assessment report is a requirement of law under Section 58 of EMC and is
important. The establishment of any undertaking or works that interrupts nature in any way
always possesses certain inevitable forms of impact on its surrounding so it is by studying the
report when it is possible to assess their effect and therefore determine whether the project should
be determined, allowed or stopped or be raised. The purpose of E.I.A. is to enable resolution to be
made on known facts regarding environmental consequences.
In USA the Supreme Court there has adopted the approach, which what is to be proved is mere
breach of the statute. In the case of ATCHISON TOPEKA & SANTA FE SAIL WAY CO. V.
CALLAWAY 392 F. Supp. 610 (DDC 1974) 420 US 908, 95 Sup ct 826 (1975).
The court has approved granting of an injunction without a balancing of the equities in order to
give effect to declared policy of Congress embodied in legislation.
And in the case in the United States District Court for the District of Columbia Civil Action No.
75 – 1040 Sierra Club National Audibon Society: Friends of the Earth Inc. International