High Court of Kenya at Nairobi
Peter K. Waweru and Others
The Kenyan Government
Peter Waweru and others owned plots of land in Kiserian Township, where they constructed buildings for various purposes which were duly approved by health and other governmental authorities. In 2004, a local health officer investigated public complaints and concerns from the Ministries of Agriculture, Health, Environment and National Resources as well as the President. The investigation revealed the release of untreated waste into open channels and the environment. The pollution originated from numerous plot owners who, during construction, had connected pipes to their septic tanks, releasing overflow into the open environment.
Despite the issuance of stop orders and statutory notices to the responsible residents, some complied while others remained defiant, accusing the Public Health Staff of corruption. When the three-month notice period lapsed, Waweru and twenty-two others were charged with nuisance at the Magistrates Court.
The Court dismissed the State’s case against Waweru and others on procedural grounds, citing the government’s failure to satisfy the notice requirement of the Public Health Act. Consequently, the charges were deemed invalid as failing to adhere to due process. Squashing the charges and proceedings, the Court also prohibited similar charges in the future. Additionally, it deemed the selection of the twenty-three residents discriminatory as representing only a fraction of those culpable for the untreated waste disposal. Rather than placing the burden on plot owners, the Court assigned responsibility to the Olkejuado County Council and Water Services Board, emphasizing the imperatives of sustainable development and compliance with environmental and health standards.
Despite dismissing the charges on procedural grounds, the High Court scrutinized Kenya’s Environmental Coordination and Management Act (ECMA) and international legal environmental principles. Stressing the relevance of these principles, enshrined in Section 3 of the ECMA and international law, the Court highlighted the right to a healthy environment, sustainable development, precautionary measures, the polluter pays principle and intergenerational equity. While the petitioning plot owners achieved success in having the charges dismissed, the Court underscored the ongoing responsibility of the petitioners to address the pollution on their plots.