George Odero v. Lake Victoria Environment Management Programme (Kenya)

George Odero (Plaintiff), a resident of Homa Bay Town and a fisherman on Lake Victoria, took legal action against the Lake Victoria Environmental Management Programme (LVEMP). This program, overseen by the East African Community (EAC), a coalition of five East African countries and administered in Kenya by the Ministry of Environment, aims to enhance collaborative management of Lake Victoria. The objective is to address pollution hotspots, thereby improving the environment and the livelihoods of local communities.

LVEMP engaged Blootex Contractors Ltd. (Respondents) for a project to rehabilitate the sewage system in Homa Bay Town, Kenya. Odero alleged that during the sewage system updates, Blootex unlawfully dumped raw sewage into open fields and Lake Victoria. This action exposed the Plaintiff and other residents to pollution and environmental degradation, and he alleged Blootex failed to comply with the Environmental Impact Assessment (EIA). The Plaintiff argued that these actions adversely impacted his fishing activities and livelihood.

Odero contended that the Respondents’ actions violated his constitutional right to a healthy environment (R2HE). In pursuit of remedies, he sought three orders. The first aimed to restrain the respondents from continuing work until an EIA was completed. The second sought to compel the creation of a clean interim sewage disposal system during construction. The third aimed to compel the cleanup of the lake. Additionally, Odero sought interim orders to prevent further pollution pending the petition’s hearing.

The Respondents staunchly denied the allegations, asserting they adhered to proper procedures and had not intentionally discharged untreated waste into Lake Victoria. They contended that the Plaintiff mistook excavated soil for sewage and emphasized that the upgraded sewage system was already operational. The burden of proof rested on the plaintiff to demonstrate the violation of his constitutional R2HE, and he was granted an opportunity to submit a supplementary affidavit. Regrettably, no additional filings were submitted by the plaintiff.

Despite the inclusion of photographic and video evidence by the Plaintiff, his legal representatives failed to elucidate this evidence to the Court. Consequently, the Court did not consider the evidence. The Respondents argued that the plaintiff neglected to challenge their opposition filing and asserted that implementing the orders sought by the plaintiff would adversely affect the public.

Ultimately, the Court dismissed Odero’s case as he failed to establish a prima facie case for interim measures. The Court cast doubt on the immediate harm Odero would face from the alleged violation of his constitutional rights if an injunction were not granted. In weighing the purported R2HE violation against the public interest, the Court leaned towards favoring the completion of the sewage project over Odero’s individual R2HE.

Using an established domestic body of law

Article 42 of Kenya’s Constitution guarantees every person the right to a healthy environment (R2HE), and Article 70(1) provides a pathway for redress if they find that their R2HE has been, or is likely to be, denied, violated, infringed, or threatened. Invoking the Constitution and Civil Procedure legislation, the Plaintiff initiated the case under Articles 69, 70, and 91(2) and (3) of the Constitution, order 40 rules 1 and 2 of the Civil Procedure Rules, and sections 1A, 1B, and 3A of the Civil Procedure Act.

However, the Court determined that the civil procedure provisions were irrelevant to the application and that the Plaintiff cited the wrong constitutional articles. Instead, articles 22(3) and 165(3) were deemed more appropriate for enforcing constitutional rights and fundamental freedoms, aligning with the orders that the Plaintiff sought.

Article 23 sets out the requirements for granting orders, stipulating that the Plaintiff must provide evidence of (1) a prima facie case, (2) potential harm or injury they will experience if the order is not granted due to the violation or threatened violation of their constitutional rights, and (3) that granting the order is in the public interest. Conservatory orders are granted based on the inherent merit of the facts, considering the public interest and constitutional values implicated in the case. These orders are akin to injunctive orders aiming to prevent prospective irreparable harm.

The Court concluded that the Plaintiff had not met the burden of proof required by the Article 23 test. This was partly attributed to the Plaintiff’s and his advocate’s failure to explain the annexed evidence cited and their omission to controvert information within the Respondent’s replying affidavits.

Odero’s plea for interim measures was dismissed by the Court despite invoking constitutional protections of R2HE and civil procedure rules. The Court emphasized that the evidentiary burden outlined in Article 23 was not met, and that Odero did not contest the information in the Respondents’ reply. This case emphasizes the importance of establishing a prima facie case in environmental matters, meeting evidentiary requirements for constitutional rights cases, and working with advocates who can present evidence to the Court. While the case could be perceived as a lapse in safeguarding the Plaintiff’s R2HE, the Court did not conduct a comprehensive examination of this fundamental right. Instead, it determined that the application was so unconvincing and flawed that, upon initial review, it did not establish a compelling basis for the viability of the Plaintiff’s case.