Gidoomal & another v National Environment Management Authority (NEMA) & 10 others (Environment and Land Petition 47 of 2021) [2026] KEELC 944 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered Mombasa authorities to pay KShs 25 million and restore a degraded dumpsite for violating the constitutional right to a clean environment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Amended Petition by the 1st & 2nd Petitioners meets the threshold for Constitution Petitions
- 2.Whether the Constitution Petition has any merit and, if affirmative, if the parties were entitled to the reliefs sought
- 3.Who will bear the Cost of the suit
Key legal issues
#Whether the Petition meets the constitutional threshold notwithstanding the doctrine of constitutional avoidance
The Petition raises genuine constitutional questions under Articles 42 and 70; constitutional avoidance does not apply where a violation or threat to the right to a clean and healthy environment is alleged, even where the dispute arises from private land.
The court accepted that environmental rights under Article 42 are enforceable by any person, not only those directly affected, and can be invoked even where violation is merely threatened. Relying on Rabera and ACRAG, it found environmental degradation on private land raises constitutional questions. The allegations implicated the State's positive obligations under Article 69(1), the Petitioners' Article 42 rights, and public officers' duties under Article 70(2)(b), taking the matter beyond a mere trespass dispute.
Whether the ELC has jurisdiction over the constitutional environmental claim
The ELC has original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act to hear constitutional environmental claims; the existence of alternative statutory forums does not oust that jurisdiction.
The court relied on Section 13 of the Environment and Land Court Act, Ken Kasing'a, Paolo Di Maria and the Supreme Court's decision in Nicholus v Attorney General, which reaffirmed that the ELC has original jurisdiction over environmental management disputes including constitutional violations, and that the NET and other tribunals cannot determine constitutional questions. The doctrine of exhaustion does not bar constitutional claims where the statutory forum cannot grant the relief sought.
Whether the Petitioners' right to a clean and healthy environment was violated
Yes. The 1st, 2nd, 3rd & 4th Respondents failed in their constitutional duty, and the dumping of waste and unplanned structures on the suit property violated the Petitioners' right to a clean and healthy environment.
The court found the Petitioners were the registered owners of Plot Nos. MSA/Block/IX/49 & 50. Photographs and the court's own site visit of 6th October 2022 confirmed heaps of dumping, stagnant water, and over 200 squatters. None of the Respondents or Interested Parties demonstrated how they acquired ownership or occupation rights. NEMA and the County Government did not deny the presence of the dumpsite. Financial constraints are no excuse for failure to perform environmental duties.
Liability of public authorities and remedies
NEMA and the County Government, having failed to enforce environmental standards or act on complaints, are jointly liable, and declarations, mandatory injunctions, restoration orders and compensation are merited.
The court apportioned duties: the County Government bears devolved responsibility for refuse removal and solid waste management under the Fourth Schedule; NEMA regulates waste disposal and issues restoration orders under EMCA; KURA is responsible for road reserves and pedestrian pathways. Relying on the Uhuru-Owino and EPZA Supreme Court decisions and the polluter-pays principle, the court held public authorities jointly liable with private actors and granted declarations, mandatory injunctions and compensation.
Costs
Costs follow the event; the Petitioners succeeded and were to receive costs (though the final order inconsistently states each party to bear their own costs).
Applying Section 27(1) of the Civil Procedure Act and Rule 26 of the Mutunga Rules, the court noted costs follow the event and that the Petitioners had succeeded on a preponderance of probabilities, holding at paragraph 139 that costs would be borne by the 1st & 2nd Respondents and Interested Parties jointly and severally. However, the final disposition states each party to bear their own costs — an internal contradiction.
Legal principles established
#- The doctrine of constitutional avoidance does not apply where a petition alleges a violation or threat to a fundamental right, particularly the right to a clean and healthy environment.
- Environmental degradation, whether on public or private land, can raise constitutional issues under Article 42 and is enforceable by any person even where a violation is merely threatened.
- The ELC has original jurisdiction over constitutional environmental claims, and alternative statutory mechanisms do not oust that jurisdiction.
- An applicant under Article 70 need not demonstrate personal loss or injury to obtain redress.
- Respondents, being custodians of environmental management, cannot abdicate their duties; financial constraints are no excuse.
Court orders
#- 1.Judgement entered in favour of the Petitioners in its entirety
- 2.A declaration that the 1st, 2nd, 3rd & 4th Respondents' act of abdicating their responsibility contravenes Article 42 of the Constitution of Kenya, 2010
- 3.A declaration that the violation of Article 42 by the 1st, 2nd, 3rd & 4th Respondents resulted in a denial of the right to a clean and healthy environment to the Petitioners and residents of Mombasa County
- 4.Compensation to the Petitioners under Article 70(1), 2(c) as read with Article 3 and Article 23(3)(a) and (e) of the Constitution
- 5.A sum of Kenya Shillings Twenty Five Million (Kshs. 25,000,000/-) payable jointly and severally by the 1st and 2nd Respondents pursuant to Article 23(3)(b) and (e) as read with Section 13(7) of EMCA 1999
- 6.A mandatory injunction compelling the 1st and 2nd Respondents to restore the degraded dumpsite and to stop any further dumping on Plot Nos. MSA/Block/IX/49 and 50
- 7.An order pursuant to Sections 152A, B, D & E of the Land Act directing the 3rd Respondent (KURA) and all the Interested Parties to remove all containers illegally placed on the Petitioners' boundary wall encroaching the pedestrian pathway within 90 days
- 8.Upon failure to comply, the Petitioner to proceed with peaceful and lawful eviction but at the costs of the 1st and 2nd Respondents and the Interested Parties
- 9.The County Commander of Mombasa and the OCS Central Police Station Mombasa to ensure full compliance and strict adherence of the Court Order
- 10.Each party to bear their costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution of Kenya, 2010 read with Article 162(2)(b) and Section 13 of the Environment and Land Court Act, No. 19 of 2011
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That a declaration that in breach of the above the Petitioners have a right for redress for orders of injunction and compensation amounting to a sum of Kenya Shillings Twenty Five Million (Kshs. 25,000,000/-)
That a mandatory injunction do hereby issue compelling the 1st and 2nd Respondents to restore the degraded dumpsite and to stop any further dumping from taking place on Plot nos. MSA/Block/IX/49 and 50.
That each party to bear their costs.
The doctrine of constitutional avoidance does not apply where the Petition alleges a violation or threat to a fundamental right, particularly one as expansive and public-facing as the right to a clean and healthy environment.
The Court finds that the 1st, 2nd, 3rd & 4th Respondents have failed to eliminate the process and activities that cause pollution in the suit property
Financial constraints are not a valid excuse
Issues in the judgment
#Internal contradiction on compensation quantum: the judgment recites that the earlier judgment of 26th July 2023 awarded Kshs. 10,000,000, but the present disposition awards Kshs. 25,000,000 without expressly setting aside or reconciling the prior award.
Internal contradiction on costs: paragraph 139 states costs are payable by the Respondents and Interested Parties jointly and severally, but the final order states each party to bear their own costs.
The Amended Petition date is given inconsistently as 10th November 2022 and 10th May 2022.
The case number is not clearly stated; the judgment variously refers to the matter as 'Draft Pet 46 of 2021' and the site visit report refers to 'ELC. No. 3'.
The suit property plot number is inconsistently rendered (MSA/BLOCK/IX/49 and 50 in the pleadings but MN/Block IX/49 & 50 in the site visit report).
The judgment contains an incomplete sentence in the introductory paragraphs, garbled before the Petitioners' names.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gidoomal & another v National Environment Management Authority (NEMA) & 10 others (Environment and Land Petition 47 of 2021) [2026] KEELC 944 (KLR)", Case Analysis (2026). Draft Pet. No. 46 of 2021 (referred to in the judgment as Draft Pet 46 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/944/eng@2026-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.