Rules and guidelines governing sustainable harvesting of sand

John Muthui & 19 others v County Government of Kitui & 7 others [2020] eKLR

ELC Petition No. E06 of 2020

Environment and Land Court at Machakos

O A Angote, J

November 27, 2020

Reported by Chelimo Eunice

Jurisdiction – jurisdiction of the Environment and Land Court - jurisdiction of the National Environmental Tribunal (NET) - jurisdiction of the Environment and Land Court vis-à-vis jurisdiction of the National Environmental Tribunal (NET) – whether the Environment and Land Court had the unlimited jurisdiction to resolve disputes relating to land and the environment – whether the Environment and Land Court had jurisdiction to resolve a dispute alleging infringement of constitutional right to a clean and healthy environment – Constitution of Kenya, 2010, articles 129, 162 and 165.

Civil Practice and Procedure – institution of court proceedings – locus standi – locus standi to institute court proceedings claiming infringement of a right or fundamental freedom in the Bill of Rights – claim alleging infringement of constitutional right to a clean and healthy environment – who had the locus standi to commence proceedings for the enforcement of the right to a clean and healthy environment – whether it was necessary for a litigant to demonstrate personal interest or to have suffered loss or injury in order to institute a suit relating to the protection of the environment – reliefs that courts could grant on claims of infringement of constitutional right to a clean and healthy environment - Constitution of Kenya, 2010, articles 22, 42 and 70; Environmental Management and Co-ordination Act, section 3.

Environmental Law – environmental disputes – principles guiding courts when resolving environmental disputes – sustainable development, intergenerational equity and precautionary principle – meaning of sustainable development – elements comprising the principle of sustainable development - principle of intergenerational equity – meaning of intergenerational equity – what informed the development of the principle of intergenerational equity – difference between intra-generational equity and inter-generation - precautionary principle – meaning of precautionary principle - what informed the development of the precautionary principle - Constitution of Kenya, 2010, article 69; Environment and Land Court Act, section 18; Environmental Management and Co-ordination Act, section 3(5); Rio Declaration on Environment and Development, principle 15.

Environmental Law – protection of environment - laws meant to protect the environment – rules and guidelines governing sustainable sand harvesting – the National Sand Harvesting Guidelines of 2007 – purpose of the National Sand Harvesting Guidelines – requirement for every county where sand harvesting activities took place to establish a Technical Sand Harvesting Committee – mandate of the Technical Sand Harvesting Committee – where relevant authorities failed provide evidence to show that the National Sand Harvesting Guidelines had been complied – whether in the circumstances, sand harvesting was being carried out in a sustainable manner - National Sand Harvesting Guidelines, 2007.

Civil Practice and Procedure – constitutional petitions – rules governing constitutional petitions – whether Civil Practice and Procedure Rules, 2010 applied to constitutional petitions - whether a petitioner was required to give notice to the affected parties before filing a representative constitutional petition -  Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 4.

Constitutional Law – rights and fundabr mental freedoms – right to a clean and healthy environment – components of the right to a clean and healthy environment - Constitution of Kenya, 2010, articles 42, 69 and 70.

Brief facts

The petitioners filed an application seeking conservatory orders to restrain the respondents from licensing or allowing exploitation of resources more particularly sand harvesting from a river known as Tiva River (the river) until hearing and determination of the petition. They brought the suit on their own behalf and on behalf of the residents of Kitui County and beyond, who in one way or the other depended on, used and derived benefits from the river. They argued that the 1^st to 6^th respondents had permitted, allowed, licensed and let the 7^th and 8^th respondents and other persons under the umbrella of the 8^th respondent to harvest sand from the river without following the regulations laid down by the 4^th respondent for such activities and that as a result, the environment in and around the river had been degraded causing the river to dry up and as a consequence, put the lives of the petitioners and those of their future generations into uncertainty.

In opposing, the 1^st and 2^nd respondents’ averred, among others, that that the petition and the application were brought prematurely before the court, that the petition ought to have been filed in the National Environmental Tribunal (the NET), that the petitioners had no capacity to institute the suit; that the harvesting and excavation of sand from the river was controlled, that there were in place strict laws governing and regulating sustainable use of the said resource and that the harvesting of sand by the 7^th and 8^th respondents was limited to internal use within the County Government of Kitui and local consumption only and that the Constitution allowed for sustainable exploitation of natural resource.

Issues

1. Whether the Environment and Land Court had unlimited jurisdiction to resolve disputes relating to land and the environment.
2. Whether the Environment and Land Court had jurisdiction to resolve a dispute alleging infringement of the constitutional right to a clean and healthy environment.
3. Who had the locus standi to commence proceedings for the enforcement of the right to a clean and healthy environment?
4. Whether it was necessary for a litigant to demonstrate personal interest or to have suffered loss or injury in order to institute a suit relating to the protection of the environment.
5. What reliefs could be granted by courts on claims of infringement of the constitutional right to a clean and healthy environment?
6. What principles guided courts when resolving environmental disputes?
7. What elements comprised the principle of sustainable development?
8. What was the meaning and purpose of the principle of intergenerational equity?
9. What was the meaning and purpose of precautionary principle?
10. Whether a petitioner was required to give notice to the affected parties before filing a representative constitutional petition.
11. What were the components of the right to a clean and healthy environment?
12. Which rules and guidelines governed sustainable sand harvesting?
13. Whether failure to comply with the National Sand Harvesting Guidelines implied that sand harvesting was being carried out in a sustainable manner.

 Held

1. The requirement that a court or tribunal could only deal with a dispute in respect of which it had the requisite jurisdiction could not be overemphasized. The Environment and Land Court’s (ELC) jurisdiction emanated from the provisions of article 162(2) (b) of the Constitution and section 13 of the Environment and Land Court Act (ELC Act).  Parliament enacted the ELC Act in compliance with the provisions of article 162(3). Article 165(5) of the Constitution divested the High Court the jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated under article 162(2) of the Constitution.
2. The reading of the Constitution and the ELC Act showed that it was the ELC that had the unlimited jurisdiction to resolve disputes relating to land and the environment. However, the ELC’s jurisdiction was subject to the jurisdiction donated to the subordinate court and tribunals by statutes, whose decisions were appealable to the ELC. One such tribunal was the National Environmental Tribunal (NET). The jurisdiction of NET, which was a creature of the Environmental Management and Co-ordination Act (EMCA) was found at section 129 of EMCA.
3. The petitioners were not appealing against the decision of the National Environment Management Authority (4^th respondent) either in issuing a licence or otherwise in respect of the harvesting of sand from the river by the respondents. Also, in view of the prayers sought in the petition, which were confined to the alleged infringement of the petitioners’ rights, NET did not have the requisite jurisdiction to deal with the petition. ELC had the jurisdiction to deal with the issues raised in the petition and the application.
4. Article 22(1) of the Constitution guaranteed the right of every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened. That meant that every person had a right of ensuring that their rights in relation to the environment were not violated or threatened by way of litigation. The Constitution gave any person alleging infringement of a right to a clean and healthy environment recognized and protected under article 42 of the Constitution, the right to apply to the court for redress, in addition to any other legal remedies that were available in respect to the same matter.
5. Courts were empowered to make any order, or give any directions, it considered appropriate to prevent, stop or discontinue any act or omission that was harmful to the environment, to compel any public officer to take measures to prevent or discontinue any act or omission that was harmful to the environment or to provide compensation for any victim of a violation of the right to a clean and healthy environment. Article 70 of the Constitution granted any person the right to commence proceedings for the enforcement of the right to a clean and healthy environment.
6. One needed not to have a personal interest or suffered any injury before filing a petition alleging the infringement of the right to a clean and healthy environment. Article 70 of the Constitution and section 3(4) of the EMCA permitted any person to institute a suit relating to the protection of the environment without the necessity of demonstrating personal loss or injury. Litigation aimed at protecting the environment could not be shackled by the narrow application of the locus standi rule, both under the Constitution and statute, and in principle.
7. The principle behind the law permitting any person to institute a suit relating to the protection of the environment without the necessity of demonstrating personal loss or injury was because the protection of the environment was not only for the benefit of the present generation, but also for the future generation. The preamble to the Constitution recognized the importance of protecting the environment for the benefit of the future generation.
8. Section 18 of ELC Act and section 3(5) of EMCA provided that the ELC ought to be guided by the principle of intergenerational equity while resolving environmental disputes. The quality of life for the future generation depended on the present generation’s decisions. The need for change in human development for them to lead happy lives had been debated for decades.
9. The idea that members of the present generation held the earth in trust for the future generations informed the development of the principle of intergenerational equity. Therefore, any person could move the court with a view of protecting the environment, not only for his benefit, but for the benefit of the future generations. It was for that reason that in principle, the locus standi to file suits challenging the violation of the right to a clean and healthy environment was given to all and sundry.
10. The petitioners, whether they hailed from Kitui County or not, and whether the harvesting of the sand from the river affected them directly or not, had the locus to prosecute the petition which was premised on the ground that the respondents had infringed on their right to a clean and healthy environment.  That right was applicable not only to them, but also the future generations. The petitioners had the requisite locus standi.
11. Constitutional petitions were governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules). Rule 4 of the Mutunga Rules allowed a petitioner to file a suit on his behalf and on behalf of a class of persons or in the public interest for infringement of right or fundamental freedom provided for in the Constitution. Such a petitioner was not required to give a notice to the affected parties before filing the petition. The petitioners herein were acting on their own behalf, and in the public interest of the people of Kitui County.
12. Article 42 of the Constitution provided that every person had the right and was entitled to a clean and healthy environment. That right included the right to have the environment protected for the benefit of the present and future generations through legislative and other measures particularly those contemplated in article 69 of the Constitution. The right extended to having the obligations relating to the environment under article 70 of the Constitution fulfilled. It was bestowed on every person and had been considered to be essential for the existence of mankind.
13. Unlike the other rights in the Bill of Rights which were guaranteed for enjoyment by individuals during their lifetime, the right to a clean and healthy environment was an entitlement of present and future generations and it was to be enjoyed by every person with the obligation to conserve and protect the environment. It had three components, the right itself, the right to have unrestricted access to the courts to seek redress where a person alleged that the right had been infringed or was threatened and the right to have the court make any order or give any directions it considered appropriate to either prevent or discontinue the act harmful to the environment. The court could also compel any public officer to take measures to prevent or discontinue the act that was harmful to the environment or award compensation to any victim of a violation of the right to a clean and healthy environment.
14. The Constitution under article 69 obligated all persons to protect and ensure a clean and healthy environment, which included but was not limited to elimination of processes and activities that were likely to endanger the environment as well as establish systems of environmental impact assessment and environmental audit and monitoring of the environment. Article 69 (1) (a) of the Constitution demanded the state, to which the 1^st to 5^th respondents belonged, to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources and equitable sharing of the accruing benefits. Article 69(1)(d) of the Constitution required the state to encourage public participation in the management, protection and conservation of the environment.
15. Rivers all over the world were under immense pressure due to various kinds of anthropogenic activities, among them indiscriminate extraction of sand and gravel which was disastrous as the activity threatened the river ecosystem. Sand harvesting activities affected the environment by causing land degradation, loss of agricultural lands, low availability of water and poor quality of water in the affected rivers. Bed degradation of rivers due to sand harvesting undermined bridge support, and would change the morphology of a river, which constituted aquatic habitat. The loss of that ecosystem affected the environment in many and far reaching ways. To address the issue of sustainable harvesting of sand, the 4^th respondent had come up with the National Sand Harvesting Guidelines of 2007 (the Guidelines).
16. Under the Guidelines, the Technical Sand Harvesting Committee (TSHC) was supposed to be established by every county where sand harvesting activities took place. TSHC had been given the mandate to ensure that sand dams gabions were constructed in designated sand harvesting sites, lorries  were using designated access roads  only to sand  harvesting sites and designated sand harvesting sites were rehabilitated appropriately by Riparian Resource Management Association (RRMA), County Council (County Governments) and approved dealers under close monitoring and supervision by the TSHC in compliance with EMCA.
17. The Guidelines restricted sand harvesting to riverbeds with no harvesting allowed on river banks in order to prevent the widening of rivers. No person was allowed to harvest sand from any area not designated as a sand harvesting site by the TSHC and the site had to have an environmental management plan to guide in the rehabilitation of the sites. In addition, harvesting of sand was not to exceed six (6) feet in depth, designated sand collection sites ought to be at least 50 meters from the riverbanks or dyke and harvesting of sand was to be done concurrently with the restoration of areas previously harvested.
18. Sand harvesting was to be strictly open-cast harvesting.  In case of underground tunneling or extraction of sand, appropriate technology was to be used to safeguard human safety, and river sand harvesting had to be done in a way that ensured that adequate reserve of the sand was retained to ensure water retention. Sand harvesting was not allowed on river banks and within 100 meters of either side of physical infrastructure including bridges, roads, railway line and dyke. Any person who sold sand would be required to issue a receipt to the purchaser and keep records of such for periodic inspection by the relevant authorities.
19. The respondents did not provide to the court any evidence to show that the Guidelines had been complied with in respect to the harvesting of sand from the river or at all. There was no evidence to show that the 1^st respondent had put in place a TSHC which was responsible for the proper and sustainable management of sand harvesting within the county.
20. In the absence of a TSHC as required under the Guidelines, and in the absence of any evidence to show compliance with all the Guidelines, or a law passed by the 3^rd respondent to regulate sand harvesting, the court found that the harvesting of sand in the river was not, prima facie, being exploited and utilized in a sustainable manner, contrary to the provision of article 69 (1) (a) of the Constitution. Although the respondents argued that the harvesting of the sand from the river was for the development of the county, and that the local community had immensely benefited from the said harvest, they ought to be aware that environmental considerations had to be at the center stage of all developments.
21. Sustainable development was one of the national values and principles of governance in the Constitution that bound all state organs, state officers, public officers and all persons. Sustainable was development that met the needs of the present without compromising the ability of future generations to meet their own needs. Essentially, sustainable development sought to address intra-generational equity, that was equity among the present generation and inter-generation equity, that was equity between generations. Sustainable development reaffirmed the need for both development and environmental protection, and neither could be neglected at the expense of the other.
22. The four (4) recurring elements that comprised the principle of sustainable development were;

1. the need to preserve natural resources for the benefit of future generations (the principle of intergenerational equity).
2. exploiting natural resources in a manner which was sustainable, prudent, rational, wise or appropriate (the principle of sustainable use).
3. the equitable use of natural resources.
4. the need to ensure that environmental considerations were integrated into economic and other development plans, programmes and projects (the principle of integration).

23. The principle of sustainable development sought to limit environmental damage arising from anthropogenic activities and lessen the depletion of natural resources and pollution of the environment. It was a principle with a normative value, demanding a balance between development and environmental protection, and as a principle of reconciliation in the context of conflicting human rights, that was the right to development and the right to protecting the environment.
24. Sustainable use of natural resources was recognized under article 69 of the Constitution, where the state, including the 1^st respondent, was obliged to ensure sustainable exploitation of sand in the river. The sustainable harvesting of sand from the river could only be accomplished if the guidelines were complied with fully, and legislation was passed by the 3^rd respondent in compliance with article 42 of the Constitution.
25. Although the 1^st respondent had stated that it had published a Gazette Notice banning the transportation of sand outside the county, the said Gazette Notice did not create any offence that was punishable in court. It did not amount to a law or a regulation to regulate how sand was to be harvested by the local community.
26. Criminal enforcement of environmental law was necessary to protect the integrity of the regulatory system, prevent harm to the environment and to punish the violators. It was for that reason that article 42 of the Constitution obligated the state, including the 1^st respondent, to protect the right to a clean and healthy environment through legislative measures, which the 1^st and 3^rd respondents had not done.
27. Although the respondents argued that they had been relying on an environmental impact assessment report (report) that was prepared by the 7^th and 8^th respondents, the report was never submitted to the 4^th respondent for approval pursuant to the provisions of sections 58 of EMCA. According to the second schedule of EMCA, the report was supposed to be submitted to the 4^th respondent for all activities involving sand harvesting, where after, a license was issued. The respondents had not complied with the law. Where the procedures for the protection of the environment were not followed, then an assumption would be drawn that the right to a clean and healthy environment was under threat.
28. When determining environmental issues, the court was guided by certain principles, one of them being the precautionary principle. The principle was based on principle 15 of the Rio Declaration on Environment and Development, which Kenya was a signatory. The principle implied that where there were threats of serious or irreversible damage, lack of full scientific certainty ought not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Central to the precautionary principle was the element of anticipation, reflecting a need for effective environmental measures to be based upon actions which take a longer-term approach. The principle evolved to meet the evidentiary difficulty caused by the fact that information required to prove a proposition would be in the hands of the party causing or threatening the damage to the environment.
29. Waiting for scientific proof regarding the impact of sand harvesting on the river could result in irreversible damage to the environment and in human suffering. The short term economic stagnation that would result due to the conservatory orders of the court did not outweigh the environmental imperatives of the river.
30. The respondents had the responsibility of abiding by the guidelines and EMCA, and enacting a law or regulations to ensure that there was sustainable exploitation of sand from the river.
31. The respondents had failed, prima facie, to comply with the laws and guidelines pertaining to harvesting of sand from the river. The 3^rd respondent had also failed to pass laws and regulations which would criminalize the exploitation of sand from the river in an unsustainable manner. That being so, the petitioners had established a prima facie case with chances of success.

Application allowed.

Orders

1. Conservatory orders issued retraining the respondents either by themselves or through their agents, servants, employees, proxies or any other person from licensing, permitting, allowing or in any other way exploiting resources more particularly sand harvesting from Tiva River in areas or sites near Ndumoni, Tanganyika, Nyanyaa and Tiva in Kitui County until hearing and determination of the petition.
2. The costs of the application ordered to be met by the 1^st respondent.