Ainea Ragen (Suing in the public interest on his own capacity and on behalf of Mwakirunge Community Residents) v County Government of Mombasa & 5 others
The bottom line
#Mombasa's Environment and Land Court found the County Government violated Mwakirunge residents' environmental rights and awarded them Kshs. 350 million in damages.
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 present Constitution Petition by the Petitioner dated 9th May, 2022 meets the threshold for a Constitution Petition
- 2.Whether the Respondents violated the provisions relating to a clean and healthy environment
- 3.Whether the Respondents' actions amounted to an infringement of the Petitioner's Constitutional and statutory rights
- 4.Whether the Petitioner is entitled to the reliefs sought on the present Petition
- 5.What are the mitigatory measures and remedies that the Court should provide for ensuring human safety, a clean and healthy environment and proper environmental management and preservation
- 6.Who will bear the costs of the Petition
Key legal issues
#Whether the Petition met the constitutional pleading threshold
The Petition complied with Rule 10 of the Mutunga Rules and the Anarita Karimi Njeru principle; the objection failed
The Court found the Petitioner identified with reasonable precision the constitutional and statutory provisions alleged to have been contravened and particularised the manner in which each Respondent violated them. The Respondents were sufficiently apprised of the case to meet, and the constitutional questions were discernible from the pleadings.
Whether the Respondents violated the right to a clean and healthy environment
The 1st and 4th Respondents violated Article 42 by operating the dumpsite without an EIA licence and failing to take adequate measures to prevent and address environmental harm
NEMA never issued an EIA licence for the Mwakirunge dumpsite, having rejected the application on aviation-safety grounds and advised relocation, yet the County Government continued dumping. NEMA issued a Restoration Order which went unappealed and unenforced. Both organs failed within their respective mandates to prevent or remedy the harm, establishing the violation on a balance of probabilities.
Whether the right of access to information under Article 35 was violated
The 1st, 2nd, 3rd and 5th Respondents violated the Petitioner's right of access to information by failing to respond to specific written requests
The Petitioner made several written requests for information on land ownership and the KAA's position on the dumpsite. A letter headed 'clarification' still sought information within the meaning of Article 35. Once specific information was sought, the burden shifted to the Respondents to show a response or lawful basis for withholding; no such correspondence was found in their replying affidavits.
Whether the Auditor-General failed her constitutional and statutory mandate
The 6th Respondent failed to adequately discharge her mandate regarding the specific concerns raised about funds allocated for the dumpsite
The Court distinguished Samson Owimba Ojiayo: the Petitioner did not seek to dictate how an audit should be conducted but complained of a failure to act on specific concerns. The audit material disclosed a disparity between budgetary allocations for compactors and bulldozers and the absence of corresponding expenditure or mention of the Mwakirunge dumpsite, matters within the Auditor-General's mandate that were not interrogated or reported upon.
Whether the dumpsite land is community land
No; the land was allocated and titled to the Municipal Council of Mombasa, and the 1st Respondent's title stands unchallenged
A letter of allotment dated 2nd July 2001 and Certificate of Title Grant No. CR 41964 dated 2nd February 2007 issued over L.R. No. MN/II/10071. The title was not challenged under Section 26 of the Land Registration Act. Historical occupation and graves on the land, without more, do not displace the registered proprietary interest of the 1st Respondent.
Whether compensation should be awarded for the constitutional violations
Kshs. 350,000,000 in compensatory damages awarded against the 1st and 2nd Respondents for approximately 200 community residents
Guided by the Supreme Court's Export Processing Zone Authority decision, the Court held that lack of strict proof by empirical data does not bar damages where liability for pollution is established. Factors considered included the long duration of the violation, its continuing nature, the Respondents' unwillingness to account for public funds, and the deterrent purpose of damages under the polluter pays principle.
Legal principles established
#- A constitutional petition must set out with reasonable precision the provision said to be infringed and the manner of infringement
- Operating a waste disposal site without an EIA licence or waste licence contravenes the environmental regulatory framework and violates the right to a clean and healthy environment
- The right to a clean and healthy environment is not contingent on ownership or occupation of the land where the harm occurs
- The Court may compel performance of a constitutional or statutory duty by an independent office but may not dictate the manner or outcome of its exercise
- In public interest constitutional and environmental litigation, courts may order each party to bear its own costs
Court orders
#- 1.Judgment entered in favour of the Petitioner with prayers partially allowed
- 2.Declaration that the suit land is legally and absolutely registered in the name of the 1st Respondent; declaration that the dumpsite sits on community land declined, as is the prayer to compel the Respondents to seek an alternative dumping site
- 3.Declarations that the acts and omissions of the 1st to 6th Respondents breached Article 69(1)(d) and (g) of the Constitution in failing to develop and maintain a safe solid and liquid waste management system at Mwakirunge
- 4.Declarations that the acts and omissions of the 1st to 6th Respondents violated the fundamental rights to the highest attainable standard of health and to a clean, healthy environment under Articles 42(a) & (b) and 43(1)(b) of the Constitution
- 5.Declarations that the acts and omissions of the 1st to 6th Respondents violated consumer rights and access to information rights under Article 46(1)(b) & (c) and Article 35(1)(a) of the Constitution
- 6.Refusal of a permanent injunction restraining the 1st Respondent from dumping wastes on the Mwakirunge site
- 7.Direction that the 1st Respondent construct a concrete perimeter wall of at least six metres high with razor wire, secured gates and 24-hour staffing within twelve months, hiving off the graveyard area
- 8.Direction that the 1st Respondent provide designs and commence installation of modern incinerators for dry and solid waste at the Mwakirunge dumpsite
- 9.Direction that NEMA strictly perform its duties under EMCA and the Waste Management Regulations, 2006 and file progress reports in Court every three months
- 10.Direction that NEMA prescribe and formulate measures for safe waste disposal at the Mwakirunge dumpsite under Section 86 of EMCA and Part 2(2)(g) of the Fourth Schedule to the Constitution
- 11.Direction that the 1st Respondent and NEMA ensure maximum environmental restoration of the entire dumpsite and surrounding affected areas pursuant to Section 111(1) and (2) of EMCA
- 12.Direction that the 1st Respondent and NEMA establish modern and scientific landfill and recycling methods for liquid and solid waste
- 13.Direction that the 1st to 5th Respondents file comprehensive progress reports in Court every three months
- 14.Direction that the 1st Respondent, NEMA and the 5th Respondent undertake public awareness and civic education programmes on environmental management and waste disposal
- 15.Order directing the 1st and 2nd Interested Parties to immediately, separately and independently launch forensic investigations into the financial activities of the 1st and 2nd Respondents
- 16.Order compelling the 1st Interested Party to produce before the Court, within 180 days, the findings and progress of its investigations into the alleged misappropriation of Kshs. 82,208,599 in public funds for financial years 2014-2016
- 17.Award of Kenya Shillings Three Hundred and Fifty Million (Kshs. 350,000,000) in compensatory damages to approximately 200 community residents, borne exclusively by the 1st and 2nd Respondents; the 3rd, 4th, 5th and 6th Respondents and the Interested Parties exonerated from damages
- 18.Order directing all Respondents and Interested Parties to file affidavits of compliance within twelve months
- 19.Order that each party bear its own costs of the Petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 70 and 258 of the Constitution of Kenya 2010; Article 165(3)(b) and (d); Sections 13(2)(a), (d) and (3) of the Environment and Land Court Act
Relief refused
#Declaration that Mwakirunge Dumpsite sits on community land (Prayer 1)
The land was demarcated, allocated and titled in favour of the Municipal Council of Mombasa, predecessor of the 1st Respondent; the title was unchallenged and historical occupation does not displace it
Permanent injunction restraining dumping of waste on the Mwakirunge site (Prayer 6)
The land is owned by the 1st Respondent; the Court cannot restrain the registered proprietor from utilising its own land altogether
Order compelling the Respondents to seek an alternative dumping site within 90 days (Prayer 7)
Identification of an alternative site involves land ownership, planning, environmental assessment and public participation falling within the mandate of the relevant authorities; the order cannot follow merely from the finding that the 1st Respondent is proprietor
Order directing the Auditor-General to undertake a forensic audit and publicise findings (Prayer 8)
The Auditor-General is an independent constitutional office; the Court cannot dictate that she undertake a particular forensic audit or predetermine findings
Costs
Each party to bear their own costs of the Petition, the Petition being public interest litigation
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 Judgement be and is hereby in favour of the Petitioner vide the Constitution Petition dated 9th May, 2022 but whereby the prayers sought are partially allowed as stated herein below.
be and are hereby awarded a sum of Kenya Shillings Three Hundred and Fifty Million (Kshs. 350, 000, 000/=) in compensatory damages to be borne exclusively by the 1st & 2nd Respondents.
I am therefore satisfied that the Petitioner has established, on a balance of probabilities, that the acts and omissions of the 1st and 4th Respondents resulted in a violation of the Mwakirunge Community Residents' right to a clean and healthy environment
The continued operation of the dumpsite in the absence of the requisite licence therefore constituted non-compliance with the environmental regulatory framework and exposed the surrounding environment, ecosystems and the residents of Mwakirunge to environmental risks
The right to a clean and healthy environment guaranteed under Article 42 is a human right directed at protecting persons from environmental harm and is not, by its nature, contingent upon ownership or occupation of the land on which the environmental harm occurs.
The distinction is therefore between compelling the performance of a constitutional or statutory duty, where a failure to perform such duty has been demonstrated, and directing the manner or outcome of the audit or investigation.
Accordingly, each party shall bear its own costs of the Petition.
Issues in the judgment
#Judgment dated 25th September 2026 but records evidence and affidavits dated after that date, including an affidavit sworn 14th November 2025 and testimony about events in 2025
Restoration Order date stated inconsistently as 15th June 2021 and 19th June 2021
Site visit report records land as approximately 50 acres registered in the name of the 'Municipal Government of Mombasa' while witnesses testified to 56 and 60 acres
Final orders cite 'Article 43(1)(b) of the Constitution of Kenya, 2020', a non-existent constitution and imprecise provision
Prayer 10 reasoning states the Court is 'persuaded that it is appropriate to compel the 1st Interested Party to disclose investigative material or to dictate the manner or timing' yet allows the prayer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ainea Ragen (Suing in the public interest on his own capacity and on behalf of Mwakirunge Community Residents) v County Government of Mombasa & 5 others", Case Analysis (2026). ELC Petition No. E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5941/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.