James v County Government of Bungoma & another (Environment and Land Petition E003 of 2025) [2026] KEELC 4300 (KLR)
The bottom line
#Bungoma's county government must dig up and safely relocate asbestos it illegally buried, after a court confirmed anyone can sue to protect Kenya's 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 court should grant the reliefs sought in the petition
Key legal issues
#Whether disposal of asbestos by burial on site complied with EMCA and the Waste Management Regulations
The 1st Respondent failed to comply; the burial without an EIA licence or licensed hazardous waste handler caused soil pollution
Regulation 17 of the 2006 Regulations forbade generating hazardous waste without a valid NEMA EIA licence, and Regulation 16 with the Fourth Schedule classified asbestos-containing waste as hazardous. The 1st Respondent tendered no evidence of engaging a licensed handler or obtaining an EIA. Burying asbestos in soil contrary to the prescribed manner resulted in environmental harm in the form of soil pollution.
Whether the Petitioner needed to demonstrate personal harm or loss to sustain the petition
No - under Section 3(4) of EMCA and Article 70 no personal loss need be shown; the claim was not frivolous, vexatious or an abuse of process
Section 3(4) of EMCA gives any person capacity to enforce the right to a clean and healthy environment without showing personal loss or injury, subject only to the claim not being frivolous or vexatious. The 1st Respondent failed to demonstrate the claim was frivolous or an abuse. Article 70 also permits redress on a mere allegation.
Whether the right to access information under Article 35 was violated
Yes - the 1st Respondent breached the right by failing to furnish information requested by letter dated 16/6/2025
The Petitioner sought information on the disposal of the asbestos by letter dated 16/6/2025. The 1st Respondent denied the request was made and furnished nothing. Section 3A of EMCA and Article 35 of the Constitution guarantee the right to such information held by the State, so the failure to respond breached the right.
Whether burying the asbestos means the matter was overtaken by events
No - the fact the asbestos was already buried does not remove the court's duty to provide redress under Article 70 and EMCA
The 1st Respondent argued disposal was complete and the claim overtaken by events. The court held that prior disposal does not extinguish its remedial jurisdiction; courts have issued restorative orders in soil pollution cases, including the Supreme Court's reinstatement of restoration orders in the Owino-Uhuru case. Restorative measures follow the polluter pays principle.
Whether compensation should be awarded
Refused - the Petitioner did not demonstrate harm or indicate how compensation should be assessed
Although Article 70 empowers the court to compensate victims of environmental rights violations, a victim must demonstrate the harm suffered and give an indication of how the court is to assess the appropriate compensation. The Petitioner sought compensation without any indication of the amount or basis, so this relief was not granted.
Legal principles established
#- A party need not demonstrate personal loss or injury to sue to enforce the right to a clean and healthy environment
- Asbestos is classified as hazardous waste whose removal and disposal requires EIA licensing and handling by NEMA-licensed handlers
- The precautionary principle and polluter pays principle guide the court's environmental jurisdiction; a petitioner is not obligated to demonstrate harm where the substance is hazardous and the law prescribes its handling
Court orders
#- 1.A mandatory injunction is issued to compel the County Government of Bungoma to dig up and remove the asbestos, which it buried in Kanduyi area, and relocate it to a suitable disposal site in accordance with EMCA under the supervision and oversight of NEMA within 30 days of the date of this judgment
- 2.The County government is directed to file a report confirming that it has dug out and disposed of the asbestos it buried in Kanduyi in the prescribed manner within 45 days of today
- 3.The 1st Respondent will bear the costs of restoring the environment where it had dumped the asbestos in Kanduyi area to the condition or state that it was in before the asbestos was buried there
- 4.The 1st Respondent is directed to engage an expert to conduct an EIA before the removal, handling and proper disposal of the asbestos buried in Kanduyi area, with Public Health Officials involved to ensure public safety
- 5.The Petitioner is awarded the costs of the petition against the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 70 of the Constitution and Section 3 of EMCA
Relief refused
#Compensation for violation of the right to a clean and healthy environment
The Petitioner did not indicate the compensation sought or demonstrate the harm suffered to allow the court to assess appropriate compensation
Costs
The Petitioner is awarded the costs of the petition against the 1st Respondent
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.
The Petitioner has proved on a balance of probabilities that the Respondent failed to comply with the regulations under EMCA when it removed and disposed of the asbestos in Kanduyi Market
The Petitioners and the residents of Kanduyi Municipality's right to a clean and health environment was violated and infringed by the 1st Respondent when it buried the asbestos in Kanduyi without following the legal requirements stipulated in EMCA and the Regulations under it
The 1st Respondent breached the Petitioner's right to access information enshrined in Article 35 of the Constitution when it failed to provide the information requested by the Petitioner
The fact that the asbestos was already buried does not take away the court's duty to provide redress under Article 70 of the Constitution and EMCA
A mandatory injunction is issued to compel the County Government of Bungoma to dig up and remove the asbestos, which it buried in Kanduyi area, and relocate it to a suitable disposal site in accordance with EMCA under the supervision and oversight of NEMA within 30 days of the date of this judgment
The Petitioner is awarded the costs of the petition against the 1 st Respondent
Issues in the judgment
#Internal inconsistency in the judgment's reference to EIA licence provisions - states the requirement 'would be Regulations 58 and 91' although 58 and 91 are sections of EMCA, not regulations
The judgment refers to 'Rule 19' and 'Rule 14 of the Fifth Schedule' while elsewhere using 'Regulation' numbering for the same instruments
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James v County Government of Bungoma & another (Environment and Land Petition E003 of 2025) [2026] KEELC 4300 (KLR)", Case Analysis (2026). ELC Petition No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4300/eng@2026-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.