Peter K. Waweru (applicant) and Republic (respondent) País/Territorio Kenya Tipo de la corte Nacional - corte superior Fecha Mar 2, 2006 Fuente UNEP, InforMEA Nombre del tribunal High Court of Kenya at Nairobi Juez Nyamu, J., G.Ibrahim, M.Emukule, A. Número de referencia Misc. Civil Application No. 118 of 2004 Idioma Inglés Materia Desechos y sustancias peligrosas, Agua, Medio ambiente gen. Palabra clave Principio de cautela Residuos sólidos Cuenca/área de captación/cuenca colectora Alcantarillado Gestión de desechos Efluente de aguas residuales/vertido Principio contaminador-pagador Terrenos públicos Uso sostenible Infracciones/sanciones Eliminación de desechos Aguas subterráneas Resumen The Applicants and the interested parties were charged with the twin offences of (a) discharging raw sewage into a public water source contrary to Section 118 (e) of the Public Health Act and (b) failure to comply with the statutory notice from the public health authority contrary to Section 120 (1) of the said Public Health Act. The Applicant and the interested parties are owners of residential cum commercial buildings. Every building has a septic tank for the disposal of its solid waste. The Public Health Officer established that most plot owners had connected underground pipes to their septic tanks to act as overflow outlets, discharging liquid waste into the open environment and flowing down-stream into the river. The Applicant was given a three months notice to abate and prevent a recurrence of the nuisance arising from discharging water into open drain and to remove the said pipes. At the expiry of the notice the Applicant and 22 other plot owners were charged for Nuisance at the Magistrates Court. They were charged directly without serving them previously with a summons to appear before the Court of the Magistrate. Section 120 (I) of the Public Health Act provides that the magistrate shall require the respective persons to appear before his court before charging them. Thus the Applicant made a Constitutional Reference from the Magistrates Court (the subordinate court) to the High Court, alleging that the Applicant’s fundamental rights and freedom of the individual, protected by the Kenyan Constitution, had been violated by his prosecution. The High Court found that the required notice in respect of waste water, provided in the Public Health Act Cap. 242, was not given and the summons to show cause were not issued. Besides that it held that the selection of 23 accused plot owners out of about 100 plot owners was discriminatory. It therefore squashed the charges against the applicant. The court then analyzed a number of universal principles of environmental law as part of customary law, which needed to be recognized by Kenyan courts: It analyzed the right of life in its attachment to the environment (section 71 Kenyan Constitution, Stockholm Declaration, Rio Declaration), the entitlement to a clean and healthy environment (section 3 Environment Coordination and Management Act (ECMA)), the principle of sustainable development (section 3 ECMA, Rio Declaration), the precautionary principle (section 3 ECMA, Rio Declaration), the polluter pays principle (section 3 ECMA, Rio Declaration), the principle of public trust (not spelt out in ECMA) and the principle of intergenerational equity. The court interpreted these principles in connection with the mentioned international declarations and explained how they had to be applied in national law. The court concluded its analysis by declaring that the Government was under a statutory duty to establish treatment works and held that no further development in the township should be undertaken without satisfying all environmental requirements. Texto completo COU-143909E.pdf