By Sam Alfan.
It is big win for British Press limited after the Environment court quashed an order requiring it demolish a section of its property for allegedly encroaching on Ngong River.
The company has a reason to celebrate after the court ruled that it had nit encroached on riparian land.
In a notice last year, the Ministry of Interior issued an order directing the company to demolish sections of its property in Industrial Area, on claims of encroaching in riparian land.
But the Environment and Land court ruled that the suit property Land Reference No. 209/18655 (Grant No. I.R 101466/4) situate along Enterprise Road, Industrial Area, Nairobi County, including the boundary wall, buildings, printing press, packaging facilities constructed thereon and compound do not form or is not part of the riparian reserve of the Ngong River.
Justice Anne Omollo said the notice by the government on May 2, 2024 threatened to violate the firm’s right to protection of their property under Article 40 of the Constitution and therefore illegal, null and void.
“An order of Certiorari be and is hereby issued to remove into this Court for purposes of being quashed Interioy’s Public Security (Vacation or Mandatory) Orders dated/issued on 2 May 2024 as relates to the British Press ltd,” ruled the court.
The court issued a permanent order blocking the government or its agents from
breaking, demolishing or evicting the company from the land.
Justice Omollo further issued orders compelling National Environment Management Authority (Nema), Nairobi City County and Ministry of Environment and Forestry to remove the waste dumped in the Ngong River or along the river-bank adjacent to the British Press’s suit Property.
The cleanup should be carried out within four months from the date of the judgement.
The three institutions were also compelled to ensure that no waste is dumped in the Ngong River or along the river-bank adjacent to the firm’s property.
The court said there was evidence of prolonged dumping by third parties and regulatory inaction by multiple agencies.
The court added that environmental protection is a shared constitutional obligation under Articles 42 and 69.
“While the Court is cautious not to usurp statutory mandates, it is empowered to issue structural and supervisory orders to ensure compliance with constitutional duties,” said the judge.
The Judge held that the illegal dumpsite would endanger the environment (the Petitioner included) and which requires action to be taken.
The court said Article 70 of the Constitution, gives authority to any person to take out proceedings where their right to a clean and healthy environment is infringed and or is likely to be violated.
“This Court is empowered to grant appropriate reliefs, including declarations,
orders of certiorari, and injunctive relief. Given the findings above, British Press ltd is entitled to declaratory orders affirming that its property does not form part of the riparian reserve and that the impugned Public Security Orders are unconstitutional
and void,” said Judge.
The company said the suit property was lawfully created by the amalgamation of several parcels following approval by the former Nairobi City Council in 2005.
This is reflected in the Deed Plans of 2006 and 2008, said the firm.
The firm submitted that the plans consistently show the river boundary on the northern edge of the Ngong River, and the validity of its title has never been challenged.
The company stated that it obtained all necessary development approvals, including building approvals (2004 and 2006) and an EIA Licence (No. 0000200) issued in 2005.
None of these approvals have been revoked, added the company.
British Press ltd said that after completing its developments, unknown third parties began illegally dumping excavated soil along the Ngong River bank bordering the Suit Property.
The firm said it repeatedly notified the defunct Nairobi City Council, and later Nairobi City County and NEMA, that the dumping was obstructing the river’s natural flow.
However, none of the authorities took any remedial action. Between 2009 and 2012, the dumping escalated into a large, illegal dumpsite extending toward it’s boundary wall.
British Press ltd stated that it submitted an Initial Environmental Audit in 2009, which NEMA found satisfactory.
However, their numerous written complaints from 2008 to 2018 to NEMA and County officials did not result in any intervention.
In July 2019, British Press ltd requested verification of the riparian reserve from WRA, which confirmed in its 20 September 2019 report that the Suit Property borders the Ngong River.
The report noted that the opposite riverbank was being used for illegal solid waste dumping, which had pushed the river towards the firm’s side, and that erosion was evident on both banks.
NEMA acknowledged receiving several reports from the company about illegal waste dumping along the Ngong River and confirmed that such incidents were always formally acknowledged.
However, the regulatir said waste management is a devolved function.
NEMA said it forwarded the complaints to the Nairobi City County, whose mandate includes the designation, management, and decommissioning of dumpsites.
NEMA asserted that although it licenses British Press ltd , the responsibility for managing dumpsites and regulating water resources lies primarily with Nairobi City County and Water Resources Authority.
Therefore, those agencies, are best placed to address the issues arising from the Interior Ministry’s orders of NEMA May 2024.
Nairobi County on its part stated that it has consistently taken reasonable measures to discharge its duties, including enforcement actions, clean-ups, and public awareness campaigns, despite resource constraints.
The county government denied any involvement in or condonation of illegal dumping along the Ngong River.
It contended that British Press ltd neither established the County’s responsibility nor provided actionable, site-specific intelligence in its past correspondence to facilitate sustained enforcement.
Nairobi County further explained that illegal dumping along the Ngong River is a longstanding problem driven by unidentified third parties and criminal cartels,occurring sporadically and often at night, which complicates enforcement.
Given the multi-agency nature of environmental protection, the County argues that it cannot bear sole responsibility where national agencies such as NEMA and the Water Resources Authority also have jurisdiction.
The devolved unit expressed its willingness to collaborate with all stakeholders through joint inspections and mitigation plans.
Please follow and like us:
