## Facts

- Peter K. Waweru was a plot owner in Kiserian Township, where development had proceeded with approvals from public authorities.
- Many plots used septic tanks, but some owners connected overflow or effluent pipes that discharged liquid waste into open drains that ultimately flowed to the Kiserian River.
- Public health officials investigated complaints about pollution and issued statutory abatement notices requiring the affected plot owners to stop the discharge and prevent recurrence within a specified period.
- After the notice period expired, Waweru and 22 other plot owners (out of roughly 100 alleged to be in a similar position) were charged in the magistrate’s court in Kibera Criminal Cases Nos. 6398/2003 and 6399/2003.
- The charges were brought under the Public Health Act (Cap. 242), including allegations of creating a nuisance by discharging sewage into a public water source/environment (commonly tied to § 118(e)) and failure to comply with a statutory notice (tied to § 120(1)).
- Waweru and others contended that the enforcement effort was discriminatory because it targeted only a small fraction of those allegedly contributing to the same pollution.
- They also argued that compliance was not realistically achievable for individual plot owners acting alone because township-wide sewerage infrastructure was lacking and on-plot treatment works would be prohibitively expensive.
- The dispute was brought to the High Court of Kenya (Nairobi) through a constitutional reference and related judicial review-style remedies, challenging the legality of the prosecution process and seeking orders directed at public authorities responsible for water and sanitation services.

## Issues

1. Whether the prosecution and proceedings under the Public Health Act were invalid because the statutory process (including the magistrate-court “show cause”/summons step contemplated by § 120(1)) was not followed before criminal process was pursued.
2. Whether prosecuting only 23 plot owners out of about 100 allegedly similar polluters amounted to unconstitutional discriminatory enforcement.
3. Whether Kenyan law recognizes an enforceable right to a clean and healthy environment (linked to the constitutional right to life and EMCA), and whether the Court could order public authorities to provide sewerage treatment works.

## Decision

- The High Court allowed the application and terminated the challenged magistrate’s court prosecutions.
- The Court held that the statutory safeguards in the Public Health Act process (including the required court-summons/show-cause step associated with § 120(1)) had not been properly followed, making the criminal proceedings unlawful.
- The Court held that selecting 23 accused persons from among about 100 allegedly similar plot owners, without a lawful basis for differentiation, was discriminatory.
- The Court issued orders of certiorari and prohibition to bring up and quash the Kibera criminal proceedings and to restrain further proceedings in those cases.
- The Court issued an order of mandamus directing responsible public authorities (including the relevant water services body and the local authority) to construct sewerage treatment works within a reasonable time to address the pollution problem.
- In addressing remedies, the Court treated environmental protection as legally enforceable through EMCA (especially § 3) and read environmental quality as closely connected to the constitutional protection of life, while also drawing on widely recognized environmental-law principles.

## Legal Principles

- Where a statute sets out mandatory preconditions before penal consequences may follow, noncompliance with those steps can invalidate the criminal process and justify orders quashing and stopping the prosecution.
- Selective prosecution of only a small subset of similarly placed persons, without a lawful and rational basis for the selection, may violate constitutional equality and non-discrimination guarantees.
- A clean and healthy environment is a justiciable interest in Kenyan law through EMCA § 3, and serious environmental harm can be treated as directly connected to the constitutional protection of life.
- Courts may issue public-law remedies (certiorari, prohibition, mandamus) to control unlawful prosecutions and to compel performance of statutory public duties where responsibility is placed on identified public bodies.
- In environmental disputes, Kenyan courts may apply generally accepted environmental-law principles reflected in EMCA and international materials, including sustainable development, the precautionary principle, polluter-pays, the public trust concept, and duties owed to future generations.

## Conclusion

In *Waweru v. Republic*, the High Court of Kenya quashed and stopped sewage-discharge prosecutions arising from pollution of the Kiserian River because the Public Health Act’s required procedure had not been followed and the selection of only 23 accused persons out of many similarly placed plot owners was discriminatory; at the same time, the Court treated environmental protection as enforceable under EMCA and constitutional values and issued mandamus compelling the responsible public authorities to construct sewerage treatment works to address the public-health and environmental harm.


Waweru v. Republic, 1 K.L.R. 677 (2006)