SILAS MUI MWENDWA & 157 OTHERS VS KITUI COUNTY RIVER BASINS COMMITTEE AND COUNTY POLICE COMMANDER KITUI AND 9 Others

1.The Petitioners filed a Notice of Motion application dated 3rd September     2024 seeking the following orders:
1.Spent
2.THAT pending the hearing and determination of this application and/or Petition herein, a conservatory order do issue directed at the Respondents and/or any other person or entities, to prevent, stop or discontinue river sand harvest or excavation or scooping of river sand or sand transportation or selling of sand from and/or at Enziu River Basin which constitutes of Enziu, Mwania and Mui Rivers in Mwingi Sub-County, Kitui County.

3.THAT pending the hearing and determination of this application and/or Petition, a conservatory order by way of injunction be issued directed at the respondents to forthwith stop issuing any manner of licence or authorization to any person or entity for purposes of river sand harvest, transportation or sale of sand at or from Enziu River Basin, which constitutes Enziu, Mwania and Mui Rivers or any other river in Kitui County.

4.THAT pending the hearing and determination of this application and/or Petition herein, a conservatory order by way of mandatory injunction do issue directed at the OCS Nguni to forthwith take measures to and to enforce any order issued by this Court.

5.THAT any other necessary or appropriate relief geared towards protection and conservation of the environment.
6.THAT costs of this application be provided for.

2.The application is supported by the affidavit of Silas Mui Mwendwa, the 1st Petitioner/Applicant, who deposed that he resides in Nguni town and witnesses on a daily basis, actions related to river sand harvesting in Enziu River Basin in Mwingi Sub-County.

3.That on or about July 2023, the 1st, 3rd, 4th, 5th, 6th, 7th and 11th Respondents by acts of commission and/or omission allowed unlawful and illegal harvest, scooping, trade and transportation of river sand from Mwania River in Mwingi Sub-County, Kitui County, from Kivau River to Thika along Thika-Garissa highway for unloading, deposit, storage and/or sale.

4.He contends that illegal trade, scooping, harvesting and transportation of river sand has continued unabated until the sand deposits were depleted leaving visible hard rocks.

5.The Applicants noted that the Kitui County River Basins Sand Utilization and Conservation Act, 2024 (hereinafter referred to as the Kitui Sand Act) contains an elaborate mechanism for sustainable exploitation of sand river and sand resources and conservation of the environment and its commencement date was 8th March 2024.

6.The aforesaid Act establishes the Kitui County River Basin Sand Utilization and Conservation Committee, which has the mandate to vet, approve and give recommendations on matters of licenses for sand harvesting, and to ensure that an Environment Impact Assessment is undertaken.

7.Further, Section 20 (2) of the Act, states that every sand harvesting site shall be gazetted, he noted that no such gazettement has been done and no license has been lawfully issued to any party under the Act.
8.The Petitioners listed the registration numbers of vehicles they have witnessed transporting river sand at Enziu River Basin. They accuse the respondents of failing to implement and enforce their statutory mandate and this has led to the exploitation and destruction of the environment and the receding of the water table, denying the local community adequate water. Members of the community are forced to spend more time and money fetching water in far-flung areas. It has led to other vices destruction of roads by uncontrolled sand tonnage transportation, drying up of forest and vegetation, alcohol and substance abuse by youth as well as transmission of sexually transmitted diseases and teen pregnancies.

9.Despite the complaints by the Petitioners and environmentalists, the Respondents have not acted on the uncontrolled sand harvesting and have ignored their letters seeking to be provided with relevant information.

The 1st Respondent’s Case
10.The 1st Respondent filed grounds of opposition in which they claim that the application and the petition cannot lie in law since the jurisdiction of the court is excluded under Section 41 of the Kitui Sand Act. They claim that the Petition and Notice of Motion lack precision and specificity in accordance with the case of Anarita Karimi Njeru vs. Republic (No. 1) (1979) I KLR 154 and Mumo Matemu vs. Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 (2013) eKLR.

11.They claim that the grounds supporting the application are unjustifiable, and speculative since  Kitui Sand Act is still being implemented and licenses under the Act are yet to be issued. Further, no evidence is attached to support the application or the existence of any imminent danger to warrant the grant of the conservatory orders sought.

12.The 1st Respondent contends that the application and the Petition herein defeat the duty of the Respondents in the actualization of the objects of devolution and functions of a County Government and the orders sought will require the court to take up the administrative, legal and constitutional processes of the County Government of Kitui.

13.Richard J. Mwendandu swore an affidavit on behalf of the 1st Respondent. He reiterated the grounds of opposition and deposed that the 1st Respondent is yet to begin issuance of any licenses for sand-related activities within Kitui County under the Kitui County River Basins Sand Utilization and Conservation Act 2024 since the institutions and committees under the Act are in the process of being constituted. The implementation of the Kitui Sand Act is a progressive process which requires stakeholder engagement, public participation, recruitment of key personnel, and establishment of key institutional framework with prudent management of funds.

14.To operationalize the aforesaid Act, the 1st Respondent has established the Interim River Basin-Based Caretaker Committee and held stakeholder engagements to sensitize the citizens. Further, the Act establishes a Directorate responsible for mineral resources whose key mandate will be to coordinate and utilise within the County, whose recruitment has already commenced.

15.Further, the 1st Respondent contends that the Applicants have not demonstrated a prima facie case and the balance of convenience tilts in favour of dismissing the instant application.
The 7th Respondent\'s case

16.The 7th Respondent filed Grounds of Opposition dated 7th September 2024, stating that the application is not based on facts but on objectionable allegations, assumptions, presumptions and suppositions. They term the Petition as having a political basis.

17.They also contend that the Applicants have not presented evidence of their allegations noting that the implementation of the Kitui Sand Act is a progressive process and the relevant agencies are working to actualize it. Having been involved in the implementation of the aforesaid Act, the 7th respondent avers that it has not done anything unlawful, illegal, or untoward that offends any law. Further, the 7th Respondent averred that there is no gap in the enforcement of any law in the County.

18.The 7th Respondent filed a Replying Affidavit sworn by Kelvin Kithendu Kioko, the secretary of the groups dealing with sand and affected by the sand issues. He deposed that various groups were formed around sand harvesting in the different supply chains, with each group having a specific role to play under one umbrella group, known as the Sand Harvesting and Transporters and Environment Conservation Group, the 7th Respondent. There are no co-operative societies for sand harvesting and the aforesaid groups are not formally registered.

19.He deposed that the 1st Applicant is a resident of Kitengela and is not a resident of Mwingi and accused him of deposing on matters not within his knowledge. He challenged the photographs attached to the application for not being genuine and could have been taken from anywhere. 

20.He informed the Court that they participated in public participation and sensitization workshops by the County Government of Kitui on matters of sand harvesting and in making interim by-laws on sand harvesting. Noting that there are still existing agencies of the National and County Governments responsible for enforcing environmental laws, he deposed that there is no gap in the law.

21.He contends that the Applicants have not provided any statistics or evidence of any reported cases of offences in sand harvesting, an environment impact assessment report, an expert survey or any other evidence to that effect.

22.The 5th Respondent was not opposed to the orders sought in the application being issued.

Hearing of the Application

23.The hearing of the application proceeded on 24th September 2004 by way of oral submissions. Senior Counsel for the Applicants Senior Counsel Mr. Eric Mutua submitted that the Petition has inherent merit and that it is in the public interest that the orders sought be granted. Further, that the replies filed confirmed that the County Government has not issued licenses to anyone for the transportation and harvesting of sand. He noted that for a license to be issued, an Environmental Impact Assessment Report(EIA) must be carried out.

24.Counsel submitted that the sand harvesting happening now is an illegality under the Environmental Management and Coordination Act and the Kitui Sand Harvesting Act. Counsel relied on the case of Moffat Kamau & 9 others-vs-Actor Kenya Ltd& 9 others(2016)eKLR

25.On the 1st Respondent’s submission on the exhaustion of alternative dispute resolution mechanism under Section 41 of the Kitui Sand Act, he submitted that this is not a dispute between stakeholders in the sand harvesting industry, but one relating to the environmental degradation occurring. Counsel submitted that under Section 41 of the Kitui Sand Act, the Interim River Basin Caretaker Committee does not have the jurisdiction to deal with the disputes at hand.  He also noted that the institutions therein are yet to be established, therefore it would not be possible to use that avenue. Counsel cited the case of NGOs Coordination Board vs. EG & 4 others; Katiba Institute(Amicus Curiae)(2023)KECS 17(KLR),

26.He also submitted that under Articles 22 and 70 of the Constitution, on locus standi of the Petitioners and the Court is the power to issue orders against any person to supervise and enforce orders to prevent harmful acts to the environment.
Submissions by the 1st Respondent

27.Counsel for the 1st Respondent, Mr. Nduva Advocate submitted that the application is not premised on factual information and that there is nothing to show that the Applicants are from Nguni.

28. Counsel stated that all disputes on sand-related matters ought to go through Alternative Dispute Resolution as provided for in the Kitui Sand Act which sets up a committee under Section 17 known as the Interim River Basin Based Caretaker Committee which can deal with these issues.

29.It was noted that this Court supervised the coming of the Kitui Sand Utilization Act and the Act establishes institutions that involve the Community at the grassroots. Counsel informed the Court that the Interim River Based Committee is in place and there is no lacuna since the Environmental Management and Coordination Act is still in force. He noted that there is no formal report by the Petitioners of environmental degradation. He stated that the motor vehicle number plates listed had no attached photos of them committing offences involving sand harvesting.

30.The 1st Respondent’s submission that no prima facie case has been established since no violation of rights or any real danger has been demonstrated to deserve the orders sought.  If any officer has failed in their duties, a prerogative order of judicial review can be sought.

Submissions by the 7th Respondent
31.Counsel for the 7th Respondent, Kilonzi Advocate submitted that the 7th Respondent appreciates the importance of the environment and the right to a clean and healthy environment, but stated that the case is not predicated on a factual foundation of any alleged harm or degradation to the environment of the River Enziu and that there is no material evidence on the same.

32.Counsel cited the case of Francis Ngigi Macharia & 67 others v. National Environment Management Authority(2018)KLR and Reuben Njuguna Gachukia vs I.G of National Police Service & others(2019)eKLR, on the submissions that in the absence of an Environmental Impact Assessment Report, the Petition had no merit.

33.The element of public interest was denied, as the 7th Respondent had highlighted the efforts that they have been putting up in conjunction with the County Government and the list of over 3000 people who are opposed to this Petition.

34.Counsel for the 7th Respondent submitted that the 1st Applicant is out of touch with what is happening on the ground as he is not a resident of the area. He noted that a report from the National Environment Management Authority on Enziu River Basin is yet to be filed , and the Court should not be left to speculate.

35.Counsel for the 5th Respondent informed the Court that they are in the process of investigating licenses. They were not opposed to the orders sought, especially where there was a default on licenses.

36.Counsel for the 11th Respondent, Mr. Motari State Counsel left the matter to the Court since the orders sought are mostly against the County Government.

Analysis and Determination

37.The Court has considered the Notice of Motion dated 3rd September 2024, the replying affidavits filed by the 1st and 7th Respondents and submissions by Counsel for the parties. The court considers the following issues for determination:
1)Whether the applicant ought to have followed an alternative dispute resolution process provided under Section 41 of the Kitui County River Based Sand Utilization and Conservation Act, 2024 before filing the current petition.
2)Whether the Petitioner/Applicants have locus standi to present the petition and the application herein.
3)Whether the Applicants have met the threshold for grant of the conservatory orders as sought

38.On the 1st issue the court has considered Section 41 of the Kitui  Sand Act, 2024 which provides as follows;
In the event of any disagreement regarding access, ownership, benefit sharing, and management approaches in sand harvesting, the River Basin-Based Cooperative Societies shall convene a meeting between the complainant and the respondent to deliberate on the grievances and make appropriate resolutions.

39.It has been conceded by the 1st Respondent that the River Basin-Based Cooperative Societies mentioned under the above section have not been constituted and thus do not exist. The Court finds that the dispute resolution mechanism under section 41 of the Kitui Sand Act is not currently available and could not be utilized by the Petitioners. This ground of challenge to the petition and the application herein fails.

40.On the 2nd issue, the Respondents state that the 1st Petitioner/Applicant is a resident of Nairobi staying in Kitengela and is not aware of what is going on at Enziu River basin or any other river in Mwingi even though he comes from Nguni. He also did not attend the sensitization meetings held by the county government.
41.On this issue, the Court agrees with the position taken by Counsel for the Applicants that by the 7th Respondent’s replying affidavit, he acknowledges that the 1st Applicant is from Nguni. Further, he at some point vied for the position of MCA Nguni Ward. He thus cannot be said to be a stranger to the issues about the region where the river basin under consideration is.

42.Further, this ground of challenge fails based on Article 22 of the Constitution of Kenya which settled the question of locus standi in constitutional petitions for enforcement of rights under the Bill of Rights. The Article states that;
(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated infringed, or is threatened.
(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by--
(a)a person acting on behalf of another person who cannot act in their own name;
(b)a person acting as a member of, or in the interest of, a group or class of persons;
(c)a person acting in the public interest; or
(d)an association acting in the interest of one or more of its members.

43.On the 3rd issue, the court has considered that the application herein is brought under Articles 23 and 70 of the Constitution, Rules 23 and  24  of the Constitution of Kenya-Protection of Rights and Fundamental Freedoms (Practice and Procedure Rules, 2013, and Section 3 (3) of the Environmental Management and Coordination Act. It seeks conservatory orders pending hearing and determination of this petition to prevent, stop or discontinue river sand harvest or excavation or scooping of river sand or sand transportation or selling of sand from and/or at Enziu River Basin and to stop issuing any manner of license or authorization to any person or entity for purposes of river sand harvest, transportation or sale of sand in the area which constitutes of Enziu, Mwania and Mui Rivers in Mwingi Sub-County, Kitui County, by the Petitioners/Applicants, who aver that they are residents of the said areas.
44.The Applicants contend that illegal trade, scooping and/or harvesting and transportation of river sand has continued unabated until the sand deposits were depleted leaving visible hard rocks after depleting the river sand, which has caused environmental degradation.

45.Article 23 of the Constitution provides for the authority of courts to uphold and enforce the Bill of Rights and states.
(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2)Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(3)In any proceedings brought under Article 22, a court may grant appropriate relief, including--
(a)a declaration of rights;
(b)an injunction;
(c)a conservatory order;
46.The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 Rule 23 Provides For Issuance Of Conservatory Or Interim Orders and states 
(1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.

47.Section 3 of the Environmental Management and Coordination Act. Entitlement to a clean and healthy environment
(1) Every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment.
(2) The entitlement to a clean and healthy environment under subsection (1) includes access by any person in Kenya to the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural purposes.
(3) If a person alleges that the entitlement conferred under subsection (1) has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully
48.    The conditions necessary for the grant of conservatory orders were spelt out by the Learned Judges of the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows:
    “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”

48. To assess whether the orders sought are merited, the Court examines whether the case presented by the Petitioners meet the criteria set out above and whether by looking at the case as a whole, the orders would be in the public interest.

49.The legal basis for the protection of the environment starts with the Constitution of Kenya. Article 42 of the Constitution of Kenya grants every person the right to a clean and healthy environment and protection of the same, which includes the right-
(a)to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
(b) to have obligations relating to the environment fulfilled under Article 70.

50.Article 69 of the provides that:
(1)The State shall--
(a)ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;
(b)work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
(c)protect and enhance intellectual property in, and Indigenous knowledge of, biodiversity and the genetic resources of the communities;
(d) encourage public participation in the management, protection and conservation of the environment;
(e)protect genetic resources and biological diversity;
(f)establish systems of environmental impact assessment, environmental audit and monitoring of the environment;
(g)eliminate processes and activities that are likely to endanger the environment; and
(h) utilise the environment and natural resources for the benefit of the people of Kenya.
(2)Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.
51.Article 70(1) of the Constitution of Kenya(2010) gives anyone who alleges that this right to a clean and healthy environment is being or likely to be infringed the right to file a petition of this nature. The Article provides that:
If a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.”

1.52.Further legal framework for the provision of the right to a clean and healthy environment is provided for by the Environmental Management and Co-Ordination Act No. 8 of 1999 (EMCA). Section 3 (1) and (2A) provides that;
(1)Every person in Kenya is entitled to a clean and healthy environment in     accordance with the Constitution and relevant laws and has the duty to safeguard and enhance the environment.
(2A) Every person shall cooperate with state organs to protect and     conserve the environment and to ensure the ecological             sustainable development and use of natural resources.”

53.In addition to the National law, Kitui County Assemby enacted the Kitui County River Basins Sand Utilization and Conservation Act, 2024 which is stated to be an Act of the Kitui County Assembly to regulate sand utilization and conservation in the county while ensuring sustainable exploitation of sand resources, environmental conservation, equitable sharing of accruing benefits and for connected purposes.

54.The Applicants claim that despite the existence of all the above cited provisions of the law for protection of the environment and regulation of sand harvesting,  or about July 2023, the 1st, 3rd, 4th, 5th, 6th, 7th and 11th Respondents by acts of commission and/or omission allowed unlawful and illegal harvest, scooping, trade and transportation of river sand from Mwania river in Mwingi Sub-County, Kitui County, from Kivau River to Thika along Thika-Garissa highway for unloading, deposit, storage and/or sale.

55.The Applicants contend that illegal trade, scooping and/or harvesting and transportation of river sand has continued unabated until the sand deposits were depleted leaving visible hard rocks. They state that upon depleting River Mwania the traders and transporters of sand proceeded to Enziu River in Nguni Ward where they started harvesting sand.

56.The 1st respondent in opposing the application stated that the Kitui Sand Act is still in the process of being implemented and licenses under the Act are yet to be issued since. They confirmed that the institutions and committees under the Act are in the process of being constituted. Their position is that the implementation of the Kitui Sand Act is a progressive process which requires stakeholder engagement, public participation, recruitment of key personnel, and establishment of key institutional framework with prudent management of funds.

57.The 7th Respondent whose replying affidavit was sworn by the secretary, Kelvin Kithendu Kioko confirms that there are groups formed around sand harvesting in the supply chains, with each group having a specific role to play. The groups are all under one umbrella group, the Sand Harvesting and Transporters and Environment Conservation Group, the 7th Respondent. These groups include riparian land owners, sand loaders, community groups involved in sand matters, transporters and business owners who own kiosks and food eateries along the sand loading sites among others.They confirm that there are no co-operative societies for sand harvesting and the aforesaid groups are not formally registered.

58.In the Court’s assessment of the averments by the Applicants, the 1st and 7th Respondents there seems to be no doubt that there are activities of sand harvesting, scooping and/or excavation transportation and sale of sand going on along the Enziu River Basin. The Applicants claim and the Court agrees that prima facie these activities are illegal and unlawful since no evidence has been shown of compliance with the with the law either substantively or procedurally.

59.The Kitui  Sand Act  and the Environmental Management and Coordination Act  provide elaborate mechanisms for the sustainable exploitation of sand rivers and sand resources and the conservation of the environment. Both Acts require that before sand harvesting activities are commenced an Environment Impact Assessment (EIA) is undertaken and the subsequent Environment Audits (EAs) and issuance of Environmental Impact Assessment Licence in accordance with the provisions of The Environmental Management and Co-ordination Act (EMCA).

60.No evidence has been shown by any of the Respondents of issuance of  Environmental Impact Assessment, Environmental Audit or EIA Licence in accordance with Sections 58 and 63 of EMCA to enable the Respondents to carry out any of the activities they have been involved in.

61.Further, no licenses for sand harvesting and transportation have been shown to have been issued either under the Kitui Sand Act or EMCA and no sand harvesting sites have been gazetted.

62.Having looked at the Applicant\'s complaints, the court restates the right to a clean and healthy environment as provided under the Constitution of Kenya Articles 42, 69 and 70 of the Constitution of Kenya, 2010 which recognize the right of every person to a clean and healthy environment. Further, under Article 69 the State to ensure that it eliminates processes and activities that are likely to endanger the environment and utilizes the environment and natural resources for the benefit of the people of Kenya. The said Article provides for the establishment of systems of environmental impact assessment, environmental audit and monitoring of the environment.

63. Further, Section 42 of EMCA provides for the protection of rivers, lakes, seas and wetlands and states;
No person shall, without the prior written approval of the Authority given after an environmental impact assessment, in relation to a river, lake, sea or wetland in Kenya, carry out any of the following activities erect, reconstruct, place, alter, extend, remove or demolish any structure or part of any structure in, or under the river, lake, sea or wetland;
excavate, drill, tunnel or disturb the river, lake, sea or wetland.
64.Section 58 of EMCA provides for the application for an Environmental Impact Assessment Licence and the process an applicant undergoes to obtain the licence. Subsection (1) requires submission by the proponent of a project a report to NEMA in the prescribed form, giving prescribed information and accompanied by prescribed fees. Section 58 (2) and (3) state as hereunder with regard to the submission of an EIA report to NEMA;
2.The proponent of any project specified in the Second Schedule shall   undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:
Provided that the Authority may direct that the proponents forego the submission of the environmental impact assessment study report in certain cases.
3.The environmental impact assessment study report prepared under this subsection shall be submitted to the Authority in the prescribed form, giving the prescribed information and shall be accompanied by the prescribed fee.

2.65.Further, the National Sand Harvesting Guidelines, 2007 are provided by NEMA as secondary legislation that applies to all sand harvesting activities in Kenya and are aimed at ensuring sustainable utilization of sand resources and proper management of the environment.

66.The Court notes that sand harvesting is one of the projects specified in the Second Schedule of the EMCA and therefore requires submission of an EIA report as it falls under the medium-risk projects for artisanal mining which includes quarrying and/or harvesting of aggregate, sand, gravel, soil, clay, stone and slate.

67.The Court further notes that the 5th Respondent, although represented in court by Counsel did not file any reply to the application herein. The Counsel stated that NEMA was not opposed to the conservatory orders sought being issued.

68.The court observes that none of the members of the 7th Respondent claimed to have made an application under Section 58 and 63 of EMCA or submitted a project report as envisaged under the said Section. It was also not claimed or shown that the 5th Respondent had issued any licenses as contemplated under the same Sections 58 and 63. 

69.From the foregoing, the procedure for obtaining an EIA licence is elaborate and detailed and is aimed at finding out whether or not a programme, activity or project will have any adverse impacts on the environment. No EIA license was adduced in evidence by the 7th respondent as having been issued by the 5th respondent.

70.At the county level, the Kitui County Assembly passed The Kitui County River Basins Sand Utilization And Conservation Act 2024. The governance structure of the Kitui Sand Act requires the establishment of the Kitui County River Basins Sand Utilization and Conservation Committee, River Basin-Based Cooperative Societies (RBBCSs), and Site-Based Community (Sand) Groups (SBCSGs).

71.The 1st and 7th Respondents have confirmed that the only institution established to date is the Interim River Basin-Based Caretaker Committees. The 1st Respondent confirmed that operationalization of the Act is progressive and requires adequate time, public consultation, prudent budgeting, recruitment of personnel and establishment of key institutional framework through consultative stakeholder engagement.

72.The provisions of the Environmental Management and Coordination Act, The Kitui County Sand Utilization and Conservation Act set out an elaborate system of regulation of sand harvesting and transportation nationally and at the county level in particular within Kitui County.

73.However, the picture painted by the parties to this application is one where although the legal framework for sand harvesting utilization and conservation exists at the national level, the 5th Respondent has abdicated its duty of implementation and/or enforcement of the requirements of the law to achieve its object and purpose to ensure sustainable management of the environment through exercising general supervision and coordination over matters relating to the environment and to be the principal instrument of government in the implementation of all policies relating to the environment.

74.While the 1st Respondent demonstrated effort in passing county level legislation and implementing the same, the said implementation is yet to be completed and no timelines were given for completion. The 1st Respondent stated that implementation require adequate time, public consultation, prudent budgeting, recruitment of personnel and establishment of key institutional framework through consultative stakeholder engagement.

75. The issues of concern as the 1st Respondent operationalizes and implements the requirements of the law, is one of environmental degradation and the negative social impacts of unregulated and uncontrolled sand harvesting.

76.The provisions of the Constitution of Kenya Articles 42, 69 and 70, the  EMCA, National Sand Harvesting Guidelines, 2007 and the Kitui County River Basins Sand Utilization and Conservation Act are all in recognition of the negative impacts of unregulated sand harvesting which inevitably leads to severe environmental impacts such as land degradation, loss of farmlands, and creation of river plains, collapsing of riverbanks, drying of riverbeds, flooding, water pollution, air pollution and loss of river ecosystem. A well-regulated sand harvesting sector will take into consideration environmental protection, conservation and rehabilitation.

77.The Hon. Justice Angote while granting conservatory orders in this case in John Muthui & 19 others v County Government of Kitui & 7 others [2020] eKLR recognized that sand harvesting is necessary for economic development but at the same time upheld the principle of sustainable development and its ancillary principles of inter-generational equity, precautionary principle, sustainable, prudent, equitable and wise use of natural resources. The Hon. Judge held:
“112. Rivers all over the world are under immense pressure due to various kinds of anthropogenic activities, among them indiscriminate extraction of sand and gravel which is disastrous as the activity threatens the river ecosystem.
113. Sand harvesting activities affect the environment by causing land degradation, loss of agricultural lands, low availability of water and poor quality of water in the affected rivers.     Bed degradation of rivers due to sand harvesting undermines bridge support and may change the morphology of a river, which constitutes an aquatic habitat. The loss of this ecosystem affects the environment in many far-reaching ways. To address the issue of sustainable harvesting of sand, NEMA has come up with sand harvesting guidelines (National Sand Harvesting Guidelines, 2007).\"

78.In the case of Celestine John Aoko & others v Shem Owino Muga & 7 others; Amicus Curiae Kenya National Commission on Human Rights [2019] eKLR, the Applicants claimed that sand harvesting had caused flooding in their farms, broken dykes and created pits which posed a safety risk amongst other hazards. “The Court held that the National Environment Management Authority (NEMA) retains regulatory powers over sand harvesting activities through the National Sand Harvesting Guidelines, 2007, issued pursuant to Section 42 (4) of EMCA.”
79.The court has found that the law sets out legal requirements, procedures and processes to be followed for a person or entity to engage in sand harvesting, transportation and sale. The court agrees with the findings in the case of Moffat Kamau & 9 others v Aelous Kenya Limited & 9 others [2016] eKLR where the Munyao Sila J held that:
“It has been my view, which I still hold,  that where the procedures for the protection of the environment are not followed, then an assumption may be drawn that the right to a clean and healthy environment is under threat. I cannot put it any better than I did in the case of Ken Kasinga vs Daniel Kiplangat Kirui & 5 Others, (supra) where I stated as follows in paragraph 73 of the judgment:-
“I am prepared to hold that where a procedure for the protection of the environment is provided by law and is not followed, then an assumption ought to be drawn that the project is one that violates the right to a clean and healthy environment, or at the very least, is one that has potential to harm the environment. This presumption can only be rebutted if proper procedure is followed and the end result is that the project has been given a clean bill of health or its benefits are found to far outweigh the adverse effects to the environment.”

80.It is the Court\'s view that the Applicants have established that the present case bears a decided public-law connotation and that the orders sought are necessary to facilitate ordered functioning within the public agencies involved in sand harvesting, transportation and sale. In this suit, the agencies are the 1st, 3rd -6th 10th and 11th Respondents and the 7th Respondents being a private entity having private members. The court further finds that the orders sought are necessary for the public interest having considered the proportionate magnitudes of possible consequences of continued degradation of the environment due to unregulated sand harvesting.

81.In this case, the court finds inherent merit in applying the precautionary principle as defined in the Environmental Management and Co-ordination Act that;
“precautionary principle” is the principle that where there are     threats of damage to the environment, whether serious or     irreversible, lack of full scientific certainty shall not be     used as a         reason for postponing cost-effective measures to     prevent     environmental degradation;

82.In the final judgement in John Muthui & 19 others v County Government of Kitui & 7 others case, this court applied the precautionary principle and stated that;
In this case, the court is satisfied that there are threats of serious or irreversible damage to the environment due to the sand harvesting activities that have been going on without legal regulation and any lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. This court cannot therefore wait for scientific proof regarding the impact of sand harvesting on Tiva River as this could result in irreversible damage to the environment and human suffering.”
83.The Court thus finds that the application dated 3rd September 2024 has merit and partly succeeds. The court declines to issue an order in terms of prayer 3 of the application which seeks a conservatory order by way of injunction directed at the respondents to forthwith stop issuing any manner of licence or authorization to any person or entity for purposes of river sand harvest, transportation or sale of sand at or from Enziu River Basin, which constitutes Enziu, Mwania and Mui Rivers or any other river in Kitui County. The court is of the view that no good grounds have been given to warrant interference with the legal mandate of the Respondents as set out in law. For the avoidance of doubt the 1st and 5th Respondents are urged to comply with their legal mandate under the various provisions of the law. Parties are at liberty to apply to court once compliance has been achieved.

3.The final orders of the court in disposition of the application dated 3rd September 2024 are that;

1)Pending the hearing and determination of the Petition herein, a conservatory order do issue directed at the Respondents and/or any other person or entities, to prevent, stop or discontinue river sand harvest or excavation or scooping of river sand or sand transportation or selling of sand from and/or at Enziu River Basin which constitutes of Enziu, Mwania and Mui Rivers in Mwingi Sub-County, Kitui County.

2)The OCS Nguni to forthwith take measures to enforce this order issued by the Court.

3)Each party shall bear their own costs of this application.

4)Parties are at liberty to apply to the Court once they comply with the law.

Dated, Signed and Delivered at Kitui this 8th  Day of  October  2024

L. G. KIMANI
JUDGE
Judgement read in open Court and virtually in the presence of
Ndeto holding brief for Eric Mutua for the  Applicants
Nduva for the 1st Respondent
No attendance for the 5th  Respondent
Mwendwa holding brief for Kilonzi for the 7th  Respondent.
No attendance for all other Respondents