Environmental Adjudication in Kenya: A reflection on the jurisdiction of the Environment and Land Court.

A presentation made at the Symposium on Environmental Adjudication in the 21st

Century held in Auckland New Zealand on 11th April 2017Justice Samson Okong’o

Introduction At Independence from Britain in 1963 Kenya lacked

comprehensive legislative frame work for environmentalregulation.

People resorted to common law of torts; nuisance, trespass,negligence and strict liability

There were also sectoral pieces of legislation on areas such as,water, Agriculture, mining, forestry, wildlife and factories.

This state of affairs posed challenges for the country. Lack of coordinated approach to environmental regulation and

management. Duty of enforcing environmental obligations placed on state

employees. Reluctance to act. Court’s restrictive approach to the rule on legal standing. Entry of EMCA in 1999 heralded a new era. Promulgation of the Constitution 2010 Right to clean and healthy environment placed in the Bill of

Rights Rule of standing relaxed

Sources of Law

Section 3 of the Judicature Actrequires courts to apply:I. The Constitution;II. Subject thereto, other written

lawsIII. The common lawIV. Doctrines of equityV. Customary law( subject to

conditions)Section 3 of Judicature Actcreated a hierarchy of sources oflaws.

The Place of International Law

Article 2 of the Constitution dealswith Supremacy of the ConstitutionArticle 2(5) of the Constitutionprovides that the general rules ofinternational law shall form part ofthe laws of KenyaArticle 2 (6) of the Constitutionprovides that any treaty or conventionratified by Kenya shall form part ofthe laws of Kenya under thisConstitutionInternational law is subject to theConstitution and the local statutes.

Principles of International Law

S. 3(5) of EMCA incorporates general principles into Kenya Law. S. 18 of ELC Act too.Requirement apply principles of Sustainable development. Also a

key aspect of governance vide article 10. elements include, as per EMCA & E& L Ct Act.

the principle of public participation in development of policies, plans and processes for the management of the environment;

the cultural and social principles traditionally applied by any community in Kenya for the management of the environment and natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law;

the principle of international co-operation in the management of environmental resources shared by two or more countries;

the principle of inter-generational equity;the polluter-pays-principles; andthe precautionary principle.

The Hierarchy of Courts in Kenya:

Following the promulgation of the Constitution of Kenya, 2010 (“Constitution”), the Kenyan judiciary has the Magistrate’s Courts and the tribunals at the lower end, the High Court, the Employment and Labour Relations Court(ELRC )and the Environment and Land Court(ELC )are in the middle followed by the Court of Appeal and the Supreme Court at the top. The High Court, the ELRC and the ELC are of equal status and together with the Court of Appeal and the Supreme Court, are superior courts.

The policy considerations which informed the decision to establish the Environment and Land Court (ELC):

Land is a key factor of production. Land occupies a special place in the hearts of Kenyans. Land remains the single most explosive issue. Due to the checkered history of land tenure in Kenya, land has become a source of unending conflicts in the country. Lack of sound policies on land management and administration, has led to perennial squatter problem, human wildlife conflicts, deforestation, land degradation, destruction of marine eco-systems, un-planned developments, encroachments on, riparian land, road reserves and wayleaves just to name a few.

When an opportunity presented itself to Kenyans to review the independence constitution, land reforms was high on the agenda. One area that was identified for reform was land legislation and land disputes resolution mechanisms. This is how the idea of setting up a court that deals mainly with environment and land disputes was mooted.

Land use and tenure have a relationship with environmental sustainability. Under Article 10 of the Constitution, sustainable development is a national value. Article 60(1) of the Constitution provides that land in Kenya shall be held, used and managed in sustainable manner. Kenya is a signatory to several conventions and treaties on environmental protection and conservation. UNEP has its seat in Kenya. There is a global trend to establish specialized Environmental Courts and tribunals. Kenya did not want to be left behind. The establishment of the ELC to act as a watchdog over Kenya’s commitment to sustainable development and environmental rule of law. This is how “the environment” found its way to the court which was meant to deal mainly with land disputes.

The constitution and jurisdiction of the Environment and Land Court (ELC):The ELC was established by the Environment and Land Court Act, No. 19 of 2011 (“the ELC Act”). The ELC is comprised of a Presiding Judge who is elected by the Judges of the court and such number of Judges as may be determined by the Kenyan Judicial Service Commission. Currently ELC has 34 judges sitting in 22 court stations across the country.

The Constitution empowered Parliament to establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land and to determine its jurisdiction and functions. The words “status of the High Court” has been judicially interpreted in our courts. The court stated that the word “courts with the status of the High Court” in Article 162 (2) of the Constitution meant;“…a court of the same standing as the High Court and the persons or judges appointed to those courts as persons of the same social or professional standing as persons appointed to the High Court.” Being of the same status as the High Court does not therefore mean that the ELC can be treated as the High Court and vice versa.

Jurisdiction of the ELC flows from the Constitution and the ELC Act. ELC has no jurisdiction in respect of matters falling within the jurisdiction of the High Court and vice versa. The jurisdiction of the ELC is restricted to disputes relating to environment and the use and occupation of, and the title to land. The jurisdiction of the court is set out in Section 13 of the ELC Act.The ELC Act gives the court original and appellate jurisdiction. Under Section 13(2) of the Act, the court has jurisdiction to hear and determine disputes;

(a) relating to environment planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.

(b) relating to compulsory acquisition of land.

(c) relating to land administration and management.

(d) relating to public, private and community Land, contracts, choses in action or other instruments granting enforceable interests in land and

(e) any other dispute relating to environment and land

“…..applications for redress of a denial, violation, or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution”.

Under section 13(4) of the Act; The Court the court appellate jurisdiction over the decisions of subordinate courts and local tribunals in respect of matters falling under its jurisdiction.

Under section 13(3) of the ELC Act, the court has jurisdiction to hear and determine;

The reliefs which the court can grant:Section 13 (7) of the Act sets out the reliefs which the court can grant which include;

injunctions

prerogative orders

award of damages

compensation

specific performance

restitution

declaration

costs

Emerging jurisdictional questions;

ELC is a new court. The following are some of the issues which have arisen since its establishment;

Whether the ELC has jurisdiction to entertain matters falling within the jurisdiction of the High Court and vice versa?

Whether the court has supervisory jurisdiction over the subordinate courts and tribunals?

Whether the court can entertain applications for judicial review?

Whether the court has criminal jurisdiction?

Whether the court has jurisdiction to interpret the Constitution?

Whether the Magistrate’s courts have jurisdiction to hear and determine disputes falling under the jurisdiction of the court?

Whether the court has jurisdiction on matters which raise cross-cutting issues?.

The jurisdictional conflicts pitting the ELC, High Court and the Magistrates’ Courts.In the year 2015 Kenyan Parliament passed the Statute Law (Miscellaneous Amendments) Act and the Magistrates’ Courts Act which introduced various amendments to the ELC Act. The amendments empowered the Chief Justice to transfer judges from the High Court and the ELRC to the ELC and vice versa. The said amendments also gave the Magistrates’ Courts jurisdiction to hear and determine environment and land disputes..

The amendments were necessitated by some of the challenges facing the court at the time namely;The parameters of the courts jurisdiction. The position of the Magistrates’ Courts in the structure of the court. The shortage of judges. Attempt to address shortage of judges by bringing in Magistrates’ Courts to deal with minor disputes and transferring judges of other courts to the court.

What influenced the amendments

The amendments were challenged in the High Court. In a judgment which was delivered by a three (3) judge bench of the High Court on 11th November 2016, the court found the provisions of the ELC Act and the Magistrates’ Courts Act, 2015 which provided for the transfer of judges across the three superior courts of equal status and conferred jurisdiction upon the Magistrates’ Court to hear environment and land disputes unconstitutional and quashed the same. The decision caused uproar. The environment and land disputes hitherto heard at the Magistrates Courts came to abrupt halt. Everybody rushed to transfer their cases to the ELC which was already clogged. The decision is the subject of an appeal to the Court of Appeal and the orders of the court have been stayed.

Contest over the amendments:

Prior to this decision of the High Court, the Court of Appeal had held that the High Court, the ELC and the ELRC are of equal of status but separate and distinct as concerns their jurisdiction. The court observed that; • The qualifications for the appointment of the High Court judges, ELC Judges

and ELRC judges and their jurisdiction as set out in the constitution and the statutes that established the two latter courts are different.

• Equality in status of the three courts is not synonymous with jurisdiction.

• ELC and ELRC were intended to be autonomous, distinct and independent of the High Court.

• Judges appointed to the ELC and ELRC do not have jurisdiction to sit in courts other than the court in which they were specifically appointed.

• The law envisaged that ELC and ELRC judges should be different from the judges of the High Court in terms of experience and qualifications.

This has also raised some challenges. In one case where ELC court was faced with a dispute raising partly company law issues and issues concerning title to land, the court held it had jurisdiction because the case couldn’t be severed.In another case where the High Court was faced with a similar situation in which the dispute concerned alleged breach of contract and title to land. The court developed a test to be applied when faced with a dispute raising mixed issues which can be dealt with by any of the three courts. It referred to it as “Pre-dominant purpose test”.

The court here proposed in my view a pre-dominant cause of action test in what has been referred to as “mixed grill,” cases.

The jurisdiction of the court on disputes raising cross-cutting issues

Jurisdiction of the ELC to entertain constitutional petitions, supervise the Magistrates’ Courts and tribunals and to grant remedies of judicial review;

The court has both original and appellate jurisdiction.

Neither the Constitution nor the ELC Act has placed any limitation on the ELC on matters falling within its jurisdiction.

ELC has jurisdiction to entertain all disputes falling within its jurisdiction brought in whatever form.

There are a number of occasions when the jurisdiction of the ELC to entertain constitutional petitions and applications for judicial review has been challenged.

Jurisdiction of the ELC in relation to criminal cases;

Neither the Constitution nor the Act has conferred the ELC with jurisdiction to preside over criminal cases. There has been argument that since the ELC is a specialized court which was established to deal exclusively with disputes relating to the environment and land; it would be best suited to determine criminal cases relating to environment and land.

Jurisprudence emerging from the ELC;

ELC is a new court. It will celebrate its 5th year of existence in November this year. The normal lifespan of a case in the superior court in Kenya is between 3 to 10 years. A big percentage of the cases which were filed in the ELC upon its establishment are still pending determination. Most of the decisions which have emerged from the court so far are on applications for interim relief. The jurisprudence is of evolving nature.

The court is not handling as many environmental cases as was expected. Most of the cases concern land. The main contributing factor is lack of interest on the part of the public on issues concerning environmental conservation.

ELC is expected to develop rich jurisprudence to enable Kenyans realize the rights to clean and healthy environment conferred by Article 42 of the Constitution and social economic rights such as a right to clean and safe water, and a right to reasonable standards of sanitation which are conferred by Article 43 of the Constitution. The court is also expected to give meaning to environmental obligations and duties imposed on the government and the public under the Constitution and EMCA. In reviewing the jurisprudence coming from the court, I would focus on, access to justice, capacity to sue, implementation of environmental obligations a rising from international law, application of the principles of environmental law and the forms of remedies being awarded by the court in no particular order.

In the case of Fadhila S. Ali & 2 Others vs. National Housing Corporation & Another, the court held that a rule in the Kenyan Civil Procedure Rules that required furnishing of security or filing in court undertaking as to damages before interim injunction is granted by the court was not applicable in cases for the enforcement of a right to a clean and healthy environment.

The court in declining to make an order for the plaintiffs to provide undertaking as to damages held that, the plaintiffs had sufficient interest to justify their seeking to enforce the rights conferred by the Constitution and EMCA and could not be prevented from doing so by a condition for provision of undertaking as to damages. The court held further that, to require the provision of undertaking as to damages or other security contemplated under Order 40 of the Civil Procedure Rules would unduly hamper the right of access to justice in that if the injunction was refused because the plaintiffs could not give undertaking as to damages, they would be compelled to undergo what might turn out to be an unclean and unhealthy environment for the period of trial before their rights could be enforced by a final order and that such scenario would render the constitutional protection under the Bill of Rights illusory and of no meaningful effect.

In the case of Republic vs. Lake Victoria Water Services Board & Another, the applicants filed an application for judicial review seeking an order to prohibit the respondent from undertaking a water supply and sanitation project which entailed the abstraction of large quantities of water from a river located in the area where the applicants resided and pumping the same through large pipes to a town in the neighborhood whose residents suffered acute water shortage.In its decision , the court held that in the exercise of its jurisdiction, it was to be guided by among others, the principles of sustainable development. The court stated further that for sustainable development to be realized there was a need to balance economic development and environmental sustainability. The court made a finding that the project was being undertaken illegally in that EIA had not been undertaken but instead of permanently stopping the project which the court found would be beneficial to the public if undertaken in a lawful manner, it gave the respondents time to carry out the EIA and to comply with other provisions of the law and stopped the project until the respondents had fully complied.

In the case of, The County Government of Migori vs. The Registered Trustees of Catholic Diocese of Homa Bay & Others, the petitioner brought a constitutional petition to challenge irregular allocation of public land. The respondents challenged the petition on among other grounds; the petitioner’s lack of standing to bring the action. In its decision , the court held that Article 22 (1) of the Constitution gives every person a right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied violated, infringed or is threatened and that the Constitution has given legal standing not only to a person who has direct interest in the right or fundamental freedom said to be denied, violated, infringed or threatened to move the court for relief but also to other persons who may be acting among others in the interest of others or in the public interest and that in the enforcement of Bill of Rights, the hitherto strict rule of locus standi has been relaxed to give the public enhanced access to justice.

The other case of interest is the case of Friends of Lake Turkana Trust vs. The AG & Others. This case arose out of a memorandum of understanding which the government of Kenya entered into with the government of Ethiopia for the purchase of electricity from Gibe III dam as well as the grid connection between Ethiopia and Kenya. The Gibe III dam is being built on River Omo which flows from Ethiopia into Lake Turkana in Kenya. The petitioner’s case was that the government of Kenya had violated the constitutional rights of the communities around Lake Turkana by entering into the said memorandum of understanding with Ethiopia whose effect would endanger the environment around Lake Turkana without having conducted an environmental impact assessment. The government’s response was that it had no control over the construction of Gibe III dam which was being undertaken by the Government of Ethiopia within the territory of Ethiopia which is outside the jurisdiction of the court. The government argued that although the construction of Gibe III dam could pose environmental challenges for Lake Turkana, the court was not the proper forum for their resolution as it had no jurisdiction to rule on the actions of the government of Ethiopia.

The court held that the parties before it were all Kenyan entities and that the subject matter concerned alleged violation of the Petitioners fundamental rights under the Constitution of Kenya. The court held that the fact that the alleged violations arose in a trans-boundary context did not, on its own, operate to limit access to the court’s jurisdiction. The court granted the Petitioner an order of mandamus directed at the government of Kenya to make available information on the power purchase agreements it had entered into with the government of Ethiopia. The court also made an order directing the government of Kenya to take steps to ensure that natural resources around Lake Turkana are sustainably managed, utilized and conserved in any engagement it enters with the government of Ethiopia. As concerns the obligation to undertake an environmental impact assessment study of the project, the court stated that this would involve the government of Ethiopia and Kenyan courts were not the appropriate forum to determine what obligations existed in this regard.

In the case of Patrick Kamotho Githinji & 4 others vs. Resjos Enterprises Ltd. & 4 others, the petitioners moved the court to stop the construction of a road next to their residence on the grounds that the works were being undertaken illegally without EIA have been undertaken and in a manner which was not environmentally friendly. The petitioners accused the respondents of indiscriminately cutting down trees which were providing shed and fresh air to the residents. The respondents were also accused of failing to come up with ways of arresting the dust which was being generated from the construction site which was said to have caused ailments of various kinds to the petitioners. In its ruling, the court accepted the petitioners’ contention that the respondents had indeed violated their right to clean and healthy environment. The court agreed with the respondents however that, the petitioners had not submitted scientific proof that the ailments which were allegedly being suffered by them were as a result of the road project. The court held that in the circumstances of the case, it was appropriate to apply the precautionary principle which is also referred to as “In dubio pro natura”. The court stated that, in cases of doubt, matters should be resolved in a way most likely to favour the protection and conservation of the environment. In its final order, the court stopped the construction of the road in question until the EIA was undertaken and the petitioners concerns addressed to the satisfaction of the court.

The milestones, challenges and the future;

The ELC is the only court in East and Central Africa specializing in land and environmental disputes. The court has enhanced access to justice in its area of specialization. It has reduced the period which the land and environment cases used to take before being heard. The number of public interest litigation on environmental issues has increased. The court has enhanced environmental rule of law.

A number of challenges facing the court have already been mentioned. The number of ELC judges currently stands at 34. About 65% of all civil cases in the Kenyan Courts concern land. The judges cannot cope with the workload. The jurisdiction of the court should be relooked at . Disputes concerning title to land should be taken back to the High Court. The other challenge concerns lack of expertise and experience both at the bench and the bar particularly on environmental law. The court has also had infrastructural challenges which has impeded its expansion. Last but not least is what I would describe as “institutional tough wars” pitting the ELC and other superior courts. As a young court, ELC has had to fight for its space among the superior courts. In general, the future looks bright for the court. The court has been well received and is delivering on its constitutional mandate.

The issue of the jurisdiction of the ELC is still fluid. It is hoped that the Supreme Court of Kenya being the highest Court in the Land would lay it to rest soon.

Thank you.