Kitui residents sue Duale, Nema over sand mining
Nguutani residents at the Nguutani River in Kitui County. The river has been devastated by illegal sand harvesting and residents have taken the government to court.
Residents of Mwingi area in Kitui County have sued Environment Cabinet Secretary Aden Duale and several government agencies for allegedly failing to stop sand harvesting that has led to the wanton destruction of the environment.
Mr Duale is being sued along with the Kitui County government, the Kenya National Highways Authority (KeNHA), the National Environment Management Authority (Nema), the Kitui County Police Commander and the County Commissioner for their failure to enforce existing laws to protect their rivers.
The case, filed by 158 Mwingi farmers at the Environment and Lands Court in Kitui, has already been granted urgent status and an inter partes hearing has been set for next week.
The residents claim that each of the 11 parties to the case has failed to enforce their legal mandates to stop the uncontrolled, chaotic and illegal scooping of sand from nearby seasonal rivers, which are their only source of livelihood.
The CS and state agencies have been dragged into the Mwingi community's desperate struggle to stop the illegal sand harvesting that is negatively impacting their environment, by their acts of commission or omission, and now face a landmark court case with far-reaching consequences. The petitioners, who have provided a list of 58 trucks photographed harvesting sand in their villages, are seeking a permanent court order or injunction restraining the 11 respondents from allowing or engaging in any further sand harvesting.
"Sand harvesting has led to exploitation and wanton destruction of the environment and consequently lowered the water table, drying aquifers and rivers, eroding river beds and general water and air pollution," reads the petition.
The residents claim that irrigation farming along Enziu, Mwania and Mui seasonal rivers has been affected by the diminishing water levels, threatening food security.
The residents, who are being represented in court by Eric Mutua, a former chairperson of the Law Society of Kenya, claim that Mr Duale, as Cabinet Secretary for Environment, Climate Change and Forestry, has failed in his role to lead the effective implementation and supervision of national policy on the conservation, protection and management of the environment.
The Kitui County government was cited for failing to enforce a specific law – the Kitui County River Basins Sand Utilisation and Conservation Act – which it passed to curb illegal sand harvesting.
The residents also accuse the county government of double standards, on the one hand having a law that seeks to outlaw sand harvesting, while on the other hand collecting revenue from sand transporters by setting up a 24-hour cess point at Kanyonyoo along the Thika-Garissa highway.
"A mandatory order of injunction to the county government to provide to the petitioners and the court with records of all motor vehicles that have paid cess on account of sand harvesting since August 1, 2023," reads one of the prayers.
Although the High Court is on its annual vacation, Justice Lilian Kimani of the Environment Court has certified the case as urgent and set a virtual hearing for September 12.
KeNHA, which manages the Thika-Garissa highway used to transport sand from seasonal rivers in Mwingi to Nairobi, has been accused of failing to rein in sand transporters who illegally overload their trucks.
The residents have demanded that the KeNHA director-general submit to the court comprehensive data on all trucks registered at the Yatta weighbridge on the Thika-Garissa highway over the past 12 months.
The weighbridge data, they claim, will effectively expose the huge scale of uncontrolled illegal sand harvesting and the extent of environmental damage caused to prove their case.
The petitioners want the KeNHA data to include the vehicle registration number of each truck, the name of the transporter, the KeNHA weighbridge operators, axle numbers, weight tickets issued, date and time, axle weight, permissible load weight and the recorded gross weight of the truck.
The community has also accused the National Environment Management Authority of failing to enforce compliance with Sections 58 and 63 of the Environmental Management and Conservation Act, which require a mandatory Environmental Impact Assessment (EIA) study to be carried out and an EIA licence to be issued before sand mining can commence.
The community is seeking an order compelling the respondents to compensate them for the losses caused by environmental degradation and dried-up rivers, based on the tonnage of sand illegally mined, as determined by data and truck records from both KeNHA and the county government.
Other respondents in the case include the Kitui County Environment Committee and three sand harvesting cooperative societies and groups.
