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ELCPartially AllowedMalindi ELC Petition dated 4th February 2022 (number not stated in judgment)· [2026] KEELC 3835 (KLR)

Malindi Residents Development Group & another v County Government of Kilifi & 4 others (Environment and Land Petition 6 of 2022) [2026] KEELC 3835 (KLR)

Environment and Land Court of Kenya
26 May 2026
25,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~102 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered Kilifi County and NEMA to fix Malindi's dumpsite and pay residents Kshs 150 million.

What this practically means

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Executive summary

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This is a first-instance constitutional petition by two registered Malindi residents' associations, joined by six interested parties, against the County Government of Kilifi, two County Executive Committee members, the Malindi Municipality Board and NEMA, over failed solid waste management and the continued unlicensed operation of the Mayungu dumpsite. The court framed twelve issues including res judicata, Article 69 obligations, Articles 42, 43 and 46 rights, Article 35 access to information, and remedies. It held the petition was not res judicata of Abdalla & 2 Others [2023] KEELC 19898 (KLR), a private land-claim suit by different parties, though it adopted that judgment's structural orders. The respondents' replying affidavits were found to consist largely of admissions and mitigation; the court found breaches of Articles 69(1)(d) and (g), violations of Articles 42, 43(1)(b) and 46(1)(a)-(c), and Article 35 information violations. NEMA was held liable for failing to deploy all its enforcement powers, including prosecution. The court declined to declare the 2nd and 3rd respondents unfit for public office (they were not sued personally) and rejected the special bank account remedy as contrary to Article 207 on county revenue funds. It awarded the petitioners Kshs 120,000,000 jointly and severally against the 1st–4th respondents and Kshs 30,000,000 against NEMA, ordered compliance with the Abdalla orders (prohibitory and mandatory injunctions, restoration order, relocation of the dumpsite, 120-day compliance with a report), awarded costs against the respondents, and interest at court rates.

Key legal issues

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01

Res judicata

Holding

The petition is not res judicata of Abdalla & 2 Others because the parties and subject matter differ: the earlier suit was a private claim by land title holders, while this is a public-interest petition by residents' associations

Reasoning

The court applied the five conditions for res judicata from Lotta v Tanaki and the Supreme Court's distinction between class actions and representative suits in Export Processing Zone Authority. The Abdalla plaintiffs agitated private proprietary rights and obtained damages personal to them; the petitioners here are registered residents' associations vindicating public environmental rights. Common subject matter (the dumpsite) does not suffice where parties, title and relief differ.

p. 22
02

Breach of Article 69 obligations and Articles 42 and 43 rights

Holding

The 1st–4th respondents breached Article 69 and violated the rights to a clean and healthy environment (Article 42) and reasonable standards of sanitation (Article 43(1)(b)) by operating an unlicensed, uncontrolled dumpsite near residential areas and a sensitive coastal zone

Reasoning

The respondents' replying affidavits comprised admissions and mitigation; they did not controvert the ongoing dumping, burning or absence of a licence. The court drew on Waweru v Republic (right to clean environment linked to right to life) and the Abdalla findings on proximity to the Malindi–Ungwana Bay fishery, and took judicial notice of the health risks of unregulated dumpsites, holding the mere operation of the site inconsistent with Article 43(1)(b).

p. 24
03

Liability of NEMA (5th respondent)

Holding

NEMA is liable for failing to use all enforcement measures available under EMCA, including prosecution, to curb the pollution, despite issuing visits, directives and audits

Reasoning

Following the Supreme Court in Export Processing Zone Authority, where NEMA was found a main actor despite its regulatory role, the court held that entreaties and directives unaccompanied by serious enforcement such as prosecution left NEMA's defence with an Achilles heel. Its concession that it is not a service-delivery agency did not absolve it of its supervisory and enforcement mandate under sections 117 and 108–116 of EMCA.

p. 30
04

Article 35 access to information

Holding

The 1st–4th respondents violated the petitioners' Article 35 rights by failing to respond to requests for information on waste management and by not publicising information on acquisition of land for a dumpsite

Reasoning

Applying Okiya Omtatah Okoiti and Nairobi Law Monthly v Kengen, the court found the petitioners had first pursued the appropriate mechanisms through letters and emails. The burden then shifted to the respondents to justify non-disclosure; their replying affidavits contained no correspondence showing the requests were honoured or that sufficient reasons for non-disclosure existed.

p. 34
05

Consumer rights under Article 46

Holding

The respondents' failure to provide an efficient waste management system despite collecting levies violated the residents' consumer rights to services of reasonable quality, information, and protection of health, safety and economic interests

Reasoning

The court reasoned that waste management is a paid public service, so substandard delivery infringes Article 46(1)(a)-(c), and that pollution's economic impact (medical expenses, loss of business, decreased property value) engages protection of economic interests. The admissions by the respondents of minimal remedial action supported the finding.

p. 28
06

Quantum of compensation

Holding

Compensatory damages of Kshs 120,000,000 jointly and severally against the 1st–4th respondents and Kshs 30,000,000 against NEMA were sufficient for the range of violations proved

Reasoning

Guided by the Supreme Court's broader constitutional approach in Export Processing Zone Authority (nature of violation, duration, impact, deterrence) and comparable awards in Abdalla (Kshs 50M), Namanyi (Kshs 25.8M), Musa (Kshs 20.6M) and Owino-Uhuru (Kshs 1.3B affirmed), the court balanced deterrence against the reality that compensation would be paid from the same funds needed for service delivery.

p. 43

Legal principles established

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  • Residents' associations may bring constitutional environmental petitions in the public interest under Articles 22(1) and 258, and such petitions are distinct from private land-claim litigation by different parties, so they are not res judicata of an earlier suit by landowners over the same dumpsite
  • A state organ charged with environmental oversight is liable where it fails to deploy all enforcement measures available to it, including prosecution, to curb pollution
  • An applicant under Article 70 need not prove loss or injury to obtain redress for violation of environmental rights, and lack of strict empirical proof does not bar exemplary or punitive damages where the violations are admitted
  • All own-source revenue collected by a county government must be paid into the County Revenue Fund under Article 207, so a court cannot order such revenue to be withheld in a private account

Court orders

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  1. 1.Declaration that the respondents' acts and omissions regarding developing and maintaining a safe solid waste management system in Malindi and failure to prevent burning of solid waste breach Article 69(1)(d) and (g) obligations
  2. 2.Declaration that the respondents' acts and omissions violate the right to highest attainable standard of health under Article 43(1)(b) and the right to a clean and healthy environment under Article 42(a) and (b)
  3. 3.Declaration that the respondents' acts and omissions violated the right to solid waste disposal services of reasonable quality under Article 46(1)(b)
  4. 4.Declaration that the respondents violated the petitioners' right to information under Article 46(1)(b)
  5. 5.Declaration that the 1st and 4th respondents violated the right to protection of health, safety and economic interest under Article 46(1)(c)
  6. 6.Declaration that the 2nd and 3rd respondents contravened or threatened violation of Article 35(1)(a) and (b) rights of access to information
  7. 7.Total compliance by the 1st and 5th respondents (including the present 2nd, 3rd and 4th respondents in so far as responsible) with the orders issued by Makori J in Abdalla & 2 others v County Government of Kilifi & 2 Others (Land Case 283 of 2016) [2023] KEELC 19898 (KLR) under limbs (c) to (f) inclusive and (j), i.e. prohibitory injunction against dumping, mandatory injunction to relocate the dumpsite, Environmental Restoration Order, mandatory injunction on the 2nd defendant, and compliance within 120 days with a Compliance Report
  8. 8.Award of Kshs 120,000,000 in compensatory damages to the 1st and 2nd petitioners against the 1st–4th respondents jointly and severally
  9. 9.Award of Kshs 30,000,000 in compensatory damages against the 5th respondent
  10. 10.Costs of the petition to be borne by the respondents
  11. 11.Interest at court rates on the compensation and costs awarded until settled in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 2(5), 2(6), 10, 19, 20, 21, 22, 23, 24, 28, 35, 42, 43, 46, 69, 70, 159(1), 162(2)(b), 176, 186, 201, 207, 258, 260; Fourth Schedule Part 2
  • Environmental Management and Coordination Act, 1999 (EMCA)Sections 2, 3(5), 58, 87, 96, 97, 103 (referenced), 108–116, 117, 120(1) & 3(h) (County Governments Act cross), 141, 142
  • Kilifi County Solid Waste Management Act, 2019Sections 5, 6, 30
  • Sustainable Waste Management Act, 2022 (Cap 387C)Sections 8(1), 9
  • County Governments ActSections 93, 94, 95, 96, 120(1) and 3(h), 131
  • Public Health ActSection 116
  • Environmental Management and Co-ordination (Waste Management) Regulations, 2006Regulation 17
  • Environmental (Impact Assessment and Audit) Regulations, 2003Second Schedule
  • Urban Areas and Cities Act No 13 of 2011Sections 11, 13
  • Environment and Land Court Act No 19 of 2011Section 18(a); Part 3
  • Civil Procedure Act (Cap 21)Section 27 proviso
  • Access to Information ActSection 6
  • Stockholm Declaration of the United Nations Conference on the Human Environment, 1972Principle 1
  • Rio Declaration, 1992Principle 10
  • Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998 (Aarhus Convention)definition of environmental information

Cases cited (28)

  • Abdalla & 2 Others v County Government of Kilifi & 2 Others (Land Case 283 of 2016)
    [2023] KEELC 19898 (KLR)
  • Lotta vs Tanaki
    [2003] 2 EA 556
  • Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others
    [2024] KESC 75 (KLR)
  • Anarita Karimi Njeru v Republic
    1976-1980 KLR 1272
  • Mumo Matemu v Trusted Society for Human Rights Alliance & 5 Others
    [2013] eKLR
  • Martin Osano Rabera & Another v Municipal Council of Nakuru & 2 others
    [2018] eKLR
  • The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (Communication No 155/96)
  • Adrian Kamotho Njenga v Council of Governors & 3 others
    [2020] eKLR
  • Waweru v Republic (Miscellaneous Civil Application 118 of 2004)
    [2006] KEHC 3202 (KLR)
  • Okiya Omtatah Okoiti v Attorney General, High Court Petition 58 of 2014
  • Nairobi Law Monthly & Another vs Kengen
    eKLR 2013
  • Martin Wanyonyi CEO Center for Human Rights Organization and Another v County Government of Bungoma And 2 Others
    2019 KEELC 486 KLR
  • Odando and Another v National Environment Management Authority and 3 Others
    2023 KEELC 21
  • Kipsiwo Community Self-Help Group v Attorney General and Six Others
    2013 KEELC 63 KLR
  • African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha
    [2017] eKLR
  • Citizens Against Violence (CAVI) & 14 others v Attorney General & 3 others
    [2023] KEHC 17591 (KLR)
  • Watamu Association v Tara Wood & 3 Others (Malindi ELCPET No E003 of 2023)
  • Rhoda S. Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR
  • Mikidadi v Khaigan and Another
    [2004] eKLR 496
  • Namanyi & 4 others v Nairobi County Government & another
    [2026] KEELC 1158 (KLR)
  • Musa & Another v Kenya Railways Corporation & 2 Others (Constitutional Petition E020 of 2021)
    (2022) KEELC 2524 (KLR)
  • Musembi & 13 others v Moi Educational Centre Co Ltd & 3 others, SC Petition No 2 of 2018
    [2021] KESC 50 (KLR)
  • CMM (Suing as next friend of CWM) & 6 others v Standard Media Group & 4 Others
    [2023] KESC 68 (KLR)
  • Wamwere & 2 others v Attorney General, SC Petition No 34 & 35 of 2019
    [2024] KECA 487 (KLR)
  • Martin Wanderi & 106 Others v Engineers Registration Board & 10 others, SC Petition No 19 of 2015
    [2018] eKLR
  • Albert Ruturi, JK Wanywela & Kenya Bankers Association v The Minister of Finance & The Attorney-General and Central Bank of Kenya, Nairobi High Court Misc Civil Application No 908 of 2001
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • British American Tobacco Ltd v The Environmental Action Network Ltd (TEAN)
Jurisdiction invoked
Articles 22, 258, 70, 159(1) and 162(2)(b) of the Constitution and Part 3 of the Environment and Land Court Act No 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Malindi Residents Development Group & another v County Government of Kilifi & 4 others (Environment and Land Petition 6 of 2022) [2026] KEELC 3835 (KLR)", Case Analysis (2026). Malindi ELC Petition dated 4th February 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3835/eng@2026-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.