No escape for City Hall: Court orders full hearing in KPLC trash dumping case

The entrance to the office of the Nairobi Governor at City Hall, Nairobi. [File, Standard]

Nairobi County has no way of walking away from its last year’s filth dumping at the Kenya Power Limited Company (KPLC) offices in Nairobi scot-free.

The Court of Appeal rejected the county government's second attempt to terminate the case filed by the KPLC, citing intergovernmental relations.

Justices Wanjiru Karanja, Lucy Njuguna and Sila Munyao said that there was nothing wrong with the Environment and Lands Court Judge Ann Omollo ordering the case to be heard to its conclusion.

“We do not see any special circumstances in this case. The suit before the ELC is a petition, which we observe has already been directed to be heard by way of written submissions. In the normal course of events, it is expected that a judgment from that court will not take too long to be delivered. We are of the view that in light of the above, it is prudent to let that case proceed to its logical conclusion, and we see no prejudice to the applicant if that path is taken,” the bench headed by Justice Karanja ruled.

The county government, led by Governor Johnson Sakaja, dumped garbage and blocked sewer lines in retaliation for the power cut owing to Sh1.68 billion uncleared utility bills.

KPLC moved to the ELRC court, arguing that Sakaja led the county to violate its employees’ rights to a clean environment.

The county, alongside the Nairobi City Water and Sewerage Company, has urged the court to instead first refer the case to either the Water Tribunal or the Intergovernmental Relations Council for mediation.

However, Justice Omollo ruled that Article 189 of the Constitution was not an override to cases filed over breach of rights to a clean and safe environment.

She also observed that although the water tribunal could manage disputes over water resources, it possessed no authority to determine that the county had infringed upon a right to a safe and clean environment.

“The existence of alternative dispute resolution mechanisms does not automatically oust the jurisdiction of this court to hear petitions alleging violations of the Bill of Rights. Parties alleging want of jurisdiction must demonstrate the adequacy of alternative mechanisms, and which, in my view, and so I hold, a basis was not laid,” said Justice Omollo.

Aggrieved, the county moved to the Court of Appeal, seeking to block the hearing of the case.

It argued that first, KPLC needed to mediate the case, and it is only when it failed that the ELRC would intervene.

According to the county, the judge ought to have declined to entertain the KPLC case, adding that there were sufficient cases underpinning mediation for government agencies and counties.

“These alternative dispute resolution mechanisms first need to be exhausted before the Environment and Land Court can assume jurisdiction. There is indeed authority in the Court of Appeal’s jurisprudence that where other bodies are vested with jurisdiction, then the court ought to avoid jurisdiction, and allow those institutions to first deal with the dispute,” the county’s lawyers argued.

Despite KPLC and NCWSC being sued, they did not file a response.