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Rodgers Muema Nzioka v. Tiomin Kenya Ltd

Pays/Territoire
Kenya
Type de cour
Autres
Date
Sep 21, 2001
Source
UNEP, InforMEA
Nom du tribunal
High Court of Kenya at Mombasa
Juge
Hayanga
Numéro de référence
Civil Case No. 97 of 2001
Langue
Anglais
Sujet
Ressources minérales
Mot clé
EIA Droit d'agir en justice Droit à un environnement propre/sain
Résumé
The plaintiffs in this case sought an injunction to restrain a mining company from carrying out acts of titanium mining in Kwale District. They acted on behalf of other plaintiffs who were mere ordinary rural farming inhabitants of the area of Kwale now designated for mining. They stated that when titanium was discovered there the mining company promised a reasonable compensation to land owners on giving their land and that the inhabitants would be relocated to some other place. The plaintiffs were not opposed to the mining but they were concerned that the excavation of titanium was likely to trigger multifarious environmental and health problems and they wanted their environment and health to be secure. They also wanted the Mining Company to give them reasonable compensation and to settle them in a new place. The Defendant said that with regard to the ill effects of titanium there was no evidence that harmful effects had been so far experienced. The court emphasized that according to the law every person in Kenya was entitled to a clean and healthy environment. This entitlement included the access by any person in Kenya to the various public constituent parts of the environment including water, atmosphere, soil, vegetation, climate, fish and wildlife. Anybody who was entitled to these elements had a right to prosecute his cause in court. The court did therefore not support the argument of the mining company that some of the plaintiffs did not have sufficient entitlement to bring the case to court or that they had no title deeds. The plaintiffs did not need to show that they had a right or interest in the property environment or land alleged to be invaded. Furthermore, the court dealt with the requirement of the Environmental Impact Assessment. It emphasized that without delivery of these studies any project that affected environment like the present mining project could not be assessed. Without these assessments the project was against the principle of sustainable development. Sustainable principle in the law of environment meant not having less economic development, or preserving environment at all cost but what was that decisions throughout society were taken with proper regard to their environmental impact. The court then analyzed the polluter pays principle and the principle of sustainable development. It stressed that the court was to be guided by principles of public participation, cultural and social principles and principles of international co-operation, principles of intergenerational and intragenerational equity, polluter pays principle and precautionary principles. It was of the view that the proponent had not taken into account any environmental factors. The court was also concerned about the failure of decision makers to take environmental factors into account. As for balance of convenience it was admitted that environmental degradation was not necessarily individual concern or loss but public loss so in a matter of this kind the convenience not only of the parties to the suit, but also of the public at large was to be considered. If the injunction was not issued it meant that any form of feared degradation, danger to health and pollution would be caused to the detriment of the population, whereas if the court did not refuse injunction only the investor would be kept at bay but life would continue for the population safely without risk. Therefore the court granted the injunction.
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