Waweru v Kenya [Kenya, High Court.]

• Jurisdiction: Kenya
• Date: 02 March 2006
• Court: High Court (Kenya)

Kenya, High Court.

(Nyamu, Ibrahim and Anyara Emukule JJ)

Waweru

and

Republic of Kenya

Environment Pollution Disposal of waste matter Township development Discharge of sewage into River Kiserian Public Health Act Water Act 2002 Responsibility for sewage treatment works Section 3 of Environment Management and Co-ordination Act 1999 Right to a clean environment Relevant universal principles Sustainable development Precautionary principle Polluter pays principle Public trust Intergenerational equity principle Whether township development ecologically sustainable Requirement of solutions to avert serious environmental damage

Human rights Right to life Section 71 of Constitution of Kenya Right to life in environmental context International environmental instruments Right to clean environment Section 3 of Environment Management and Co-ordination Act 1999 Balance of rights Economic benefits of development Rights of Kiserian town developers Rights of downstream users of Kiserian River Rights of future generations Sustainable development

Relationship of international law and municipal law Customary international law Section 3 of Environment Management and Co-ordination Act 1999 Universal principles Sustainable development Precautionary principle Polluter pays principle Public trust Rio Declaration on Environment and Development 1992 The law of Kenya

Summary: The facts:The applicant and interested parties, plot owners in the Kiserian Township, were charged with offences under Sections 118(1)(e) and 120(1) of the Public Health Act;1 that of discharging raw sewage into a public water source and the environment, and failing to comply with a statutory notice respectively.

The applicant brought a constitutional reference pursuant to Rule 3 of the Constitution of Kenya (Protection of Fundamental Rights and Freedom of the

Individual) Practice and Procedure Rules 2001. He sought orders inter alia that the criminal proceedings violated his constitutional rights since responsibility for sewerage rested with the County Council under the Constitution of Kenya

Held:The charges were quashed and criminal proceedings terminated. The Ministry of Water and the County Council were ordered to construct and maintain sewage treatment works.

(1) Due process had not been followed under the Public Health Act. Since all owners had built septic tanks and the real issue was the disposal of waste matter, it was arbitrary and oppressive as well as discriminatory to charge the applicant and interested parties with the discharge of sewage. Under the Public Health Act and the Water Act 2002, sewage treatment works were the responsibility of the County Council and the Ministry of Water, via the appropriate Water Services Board (pp. 31415).

(2) The precautionary measures taken in identifying the problem and charging the offenders were to be continued but with adherence to due process, whether in enforcing the Public Health Act, Water Act 2002 or the Environment Management and Co-ordination Act 1999 (EMCA). That the Kiserian Township was located on a water table, the structural developments had been approved by the relevant authorities and sewage was being discharged into the Kiserian River, gave rise to serious environmental concerns. While Section 3 of EMCA provided the right to a clean environment, raw sewage threatened the lives of downstream users, including livestock, and pollution of the water table (pp. 31617).

(3) It was necessary to consider the law of sustainable development. The right to life, guaranteed under Section 71 of the Constitution, could be threatened by harm to the environment. The right to a clean environment was inherent to all creatures, including man. Courts were to take cognizance of the universal principles set out in Section 3 of the EMCA, which constituted part of customary international law. Directly relevant were sustainable development, the precautionary principle, polluter pays principle and public trust (pp. 31719).

(4) In order to achieve sustainable development, environmental protection was to constitute an integral part of the development process according to the Rio Declaration on Environment and Development 1992. The Rio Declaration also adopted the precautionary principle, the internalization of environmental costs and the polluter pays principle. Development was to meet the needs of the present without compromising the ability of future generations to meet their needs. The Government and its agencies were under a public trust to manage natural resources in a way that maintained a proper balance between the economic benefits of development and the need of a clean environment (pp. 31923).

(5) In environmental law, life encompassed the wider dictionary definition of activity of living. Any development threatening life was not sustainable. That life and environment were inseparable was evident from the most important international environmental instruments: Principle 1 of the 1972 Stockholm Declaration, Article 24 of the African Charter on Human and Peoples' Rights and Principle 1 of the Rio Declaration. Orders were intended to secure the right to life in the environmental context (pp. 3212).

(6) Since the Government, through its relevant Ministries, was obliged to approve sustainable development only, any further development had to satisfy all environmental and health requirements and be approved by the National Environmental Management Authority. The authorities were to pay for the cost of environmental restoration; future development costs should include treatment works. All owners were required to have septic tanks or acceptable alternatives. Short- and long-term solutions were required to avert serious environmental damage. The intergenerational equity or environmental justice principle obliged the present generation to preserve or enhance health, diversity and productivity for future generations (pp. 3237).

The following is the text of the judgment of the Court:

The Applicants and the Interested Parties were charged with the twin offences of (i) discharging raw sewage into a public water source and the environment contrary to Section 118(1)(e) of the Public Health Act (Chapter 242, Laws of Kenya), and (ii) failure to comply with the statutory notice from the public health authority contrary to Section 120(1) of the said Public Health Act.

Section 118(1) of the Public Health Act sets out what acts are deemed to be nuisances liable to be dealt with in the manner provided in Part (II) (Sanitation and Housing) of the Act. Section 118(1)(e) deems to be a nuisance

And Section 119 of the said Act empowers a medical officer of health if satisfied of the existence of a nuisance to serve a notice on the author of the nuisance or the occupier or owner of the dwelling or premises on which the nuisance arises or continues requiring him to remove it within the time specified in the notice and to execute such work and do such things as may be necessary for that purpose, and if the medical officer of health thinks it desirable (but not otherwise) specifying any work to be executed to prevent a recurrence of the said nuisance.

Section 120(1) of the said Public Health Act provides that if the person on whom a notice to remove a nuisance has been served as aforesaid fails to comply with any of the requirements thereof within the time specified, the medical officer of health shall cause a complaint relating to such nuisance to be made before a magistrate and such magistrate shall thereupon issue a summons requiring the person on whom the notice was served to appear before his court.

The procedure is firstly that the Public Health Officer makes a complaint to the magistrate, and secondly that the magistrate issues a summons requiring the person upon whom a notice was served under Section 120 to appear before him, that is, the magistrate.

From the various attachments to the application, the Applicant was not served with a summons to appear before the magistrate. Instead he was charged directly. So he applied pursuant to Rule 3 of the Constitution of Kenya (Protection of Fundamental Rights and Freedom of the Individual) Practice and Procedure Rules, 2001 (LN 133 of 2001), for leave to make a Constitutional Reference from the Court of the Magistrate (the subordinate court) to this court, alleging that the Applicant's fundamental rights and freedoms of the individual had been violated by his prosecution. The subordinate court granted the Applicant's application to bring this constitutional reference.

So, following such leave, by an Application brought by way of an Originating Summons dated 20 February 2004 (the Application) one Peter K. Waweru (the Applicant), who claimed to be injured and prejudiced in that his rights and freedoms under the relevant law had been or were likely to be contravened sought and prayed for the Orders following

• 1. That the entire proceedings in Criminal Case No 6398 of 2003, consolidated with Criminal Case No 6399 of 2003, Kibera, be declared a nullity for violation of the Applicant's...