[2022] KENET 719 (KLR)

Balcon Housing Company Limited & 3 others (Suing as Representatives of Hinga Residents’ Association) v National Environment Management Authority & another; Hinga (Interested Party) (Appeal 179 of 2016) [2022] KENET 719 (KLR) (Civ) (28 September 2022) (Judgment)

Neutral citation: [2022] KENET 719 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Appeal 179 of 2016

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Vice Chair, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

September 28, 2022

Between

Balcon Housing Company Limited

1st Appellant

John Kamau Maina

2nd Appellant

and

John Waithaka Wanjiku

Applicant

and

Velina Waithira Mwaniki (Suing as Representatives of Hinga Residents’ Association)

Appellant

Suing as Representatives of Hinga Residents’ Association

and

National Environment Management Authority

1st Respondent

Elizabeth Njeri Hinga

2nd Respondent

and

Nyoike Hinga

Interested Party

Judgment

1. The present appeal was commenced vide a notice of appeal dated June 21, 2016 and filed on June 23, 2016. The notice of appeal was accompanied by the appellants’ statement of grounds of appeal dated June 21, 2016 and filed on June 23, 2016. The appellants moved to the tribunal being aggrieved by the decision of the 1st respondent to grant the 2nd respondent with the Environmental Impact Assessment (EIA) License No NEMA/EIA/PSL/2533 dated May 4, 2016 with respect to the establishment of an open quarry site LR No 11478 along the Northern Bypass and Mirema Drive in Nairobi City, County.

2. By a consent dated August 23, 2020 which was adopted as an order of the tribunal as between the appellants, the 1st respondent, and the 2nd respondent it was agreed by the parties, inter alia, that:a.All oral evidence tendered before the tribunal be set aside and expunged from the record; andb.That consequently the tribunal shall determine this appeal herein on the basis of documentary evidence to be identified and relied on by the respective parties, the tribunal’s observations at its site visits, and the written submissions filed by the parties.

3. The appellants identified and relied upon their notice of appeal, the statement of grounds of appeal, the various affidavits filed by the appellants, the appellants various documents, and the appellants’ written submissions dated November 2, 2020.

4. The 1st respondent filed and relied upon the 1st respondent’s trial bundle dated January 26, 2021. The 1st respondent’s trial bundle contained:a.The 1st respondent’s statement of reply dated February 8, 2017;b.The 1st respondent’s list and bundle of documents dated February 8, 2017; andc.The 1st respondent’s skeletal arguments dated January 26, 2021.

5. Within the 1st respondent’s list and bundle of documents dated February 8, 2017 were the 1st respondent produced various documents, including:a.The impugned EIA License NEMA/EIA/PSL/2533 dated May 4, 2016;b.Copies of various court pleadings touching on the same subject matter in various courts;c.Written statements of the appellants in Nairobi CR 4429 of 2012;d.Evidence of public participation and comments by the Kenya Urban Roads Authority (KURA); ande.A ruling dated September 20, 2013 in Nairobi ELC 445 of 2013.

6. The 2nd respondent filed and relied on the 2nd respondent’s trial bundle dated January 26, 2021. The 2nd trial bundle contained the following documents:a.The 2nd respondent’s replying affidavit of Elizabeth Njeri Hinga sworn on February 10, 2017;b.The 2nd respondent’s affidavit sworn by Elizabeth Njeri Hinga on July 11, 2017;c.The 2nd respondent’s written submissions dated January 26, 2021;d.The 2nd respondent’s list and bundle of authorities dated January 26, 2021 in support of the 2nd respondent’s written submissions dated January 26, 2021; ande.The ruling dated May 5, 2019 in Nairobi ELC Miscellaneous Application No 91 of 2019 on a contempt application vis-à-vis the tribunal’s stop order dated June 24, 2016.

7. The interested party did not participate.

8. It was admitted by the parties that the subject matter herein had also been part of proceedings in various courts, including the Environment and Land Court. Those cases before the superior court included:a.Nairobi ELC Miscellaneous Application No 91 of 2019;b.Nairobi ELC No 445 of 2013;c.Nairobi ELC No 157 of 2008; andd.Nairobi ELC No 1183 of 2013.

Summary of Contentions and Arguments 9. The appellants contended and argued that the impugned EIA License was issued by the 1st respondent to the 2nd respondent in breach of applicable laws in the absence of adequate public participation. The appellants also contended that the 2nd respondent was not the registered proprietor of the project site. Accordingly, the appellants sought the revocation by this tribunal of the Environmental Impact Assessment (EIA) License No NEMA/EIA/PSL/2533 dated May 4, 2016, the issuance by this tribunal of an environmental restoration order as against the 2nd respondent with respect to the project site, compensation to the appellants, and the costs of the appeal.

10. In opposing the appeal, both the 1st and 2nd respondents adopted similar arguments. Both respondents contended that there was adequate participation, that the ownership controversy is not within the mandate of this Tribunal, that the impugned license EIA License No NEMA/EIA/PSL/2533 dated May 4, 2016 was only valid for three years and thus had lapsed on May 4, 2019, and that the appellants should be condemned to pay costs.

Issues for Determination 11. Having perused the pleadings, documents, and written submissions filed by the parties, it is the considered opinion of this Tribunal that the following are the issues for determination:a.Was there adequate public participation in the process leading to the issuance of the impugned license;b.Should the EIA License No NEMA/EIA/PSL/2533 dated May 4, 2016 be revoked;c.Should the tribunal issue a restoration order with respect to the project site; andd.Who should bear the costs of the appeal?

12. With respect to public participation, the tribunal is satisfied that there was adequate public participation in the process leading to the issuance of EIA License No NEMA/EIA/PSL/2533 dated May 4, 2016. The 1st respondent has adduced evidence of the same and has satisfied the tribunal that the views of the public were considered, and those views represented a sufficient constituency of persons likely to be affect by the proposed project. We also note that the imperative of public participation only requires that the views of the public be sought and considered. We are satisfied that the same was undertaken to the required standard.

13. On their part, the appellants failed to buttress their argument that the public participation did not meet the required legal standards. From the documents on record, it is evident that there was broad public participation but the appellants themselves were strongly opposed to the proposed project and they felt that their views should have been adopted by the 1st respondent.

14. With respect to the ownership controversy, we argee with the respondents that this tribunal has no remit to examine that question; particularly in light of the various proceedings before the superior courts touching on that matter.

15. It was incumbent on the appellants to establish a basis for the revocation of the impugned license. For the purposes of the present appeal and this particular issue for determination, it is not necessary for the tribunal to delve into whether or not the tribunal can revoke a license that has lapsed. To our mind, it is clear from the positions taken by the appellants that the revocation of the impugned license was to be consequent to a finding that there had not been public participation to the required legal standard. Accordingly, having found that the public participation was adequate, the EIA License No NEMA/EIA/PSL/2533 dated May 4, 2016 cannot thereafter be revoked on that basis.

16. However, out of an abundance of caution and in line with the precautionary principle, the tribunal applied its mind to whether there was any environmental risk that cannot be mitigated that would then compel us to issue a restoration order. From the material placed on record and from our own site visits we did not find any environmental risk that would require the issuance of such an order.

17. Turning now to the issue of the costs of the appeal, the tribunal is alive to the fact that this is a longstanding appeal that is part of a wider series of disputes between the appellants on one hand and the 2nd respondent and the interested party on the other. The parties herein argued spirited cases and while it is evident from the foregoing that the appeal has failed, we do not find it necessary to make an order as to costs.

Disposition and Orders 18. For the reasons stated above, and in line exercise of its powers under section 129 (3) of the Environmental Management and Co-Ordination Act, the tribunal makes the following orders: -i.The notice of appeal dated June 21, 2016 is dismissed;ii.All stop orders of the tribunal with respect to this appeal are consequently vacated; andiii.No orders are made as to costs.

19. The parties attention is drawn to the provisions of section 130 of the Environmental Management and Co-Ordination Act.

DATED AND DELIVERD AT NAIROBI THIS 28TH DAY OF SEPTEMBER 2022Mohammed S Balala ……………………ChairpersonChristine Mwikali Kipsang’………Vice-ChairpersonBahati Mwamuye ….…………MemberWaithaka Ngaruiya …………MemberKariuki Muigua …………… Member