[2016] KEHC 3381 (KLR)
The court found that the NEMA report confirmed there was no ongoing construction and that the defendant had not breached the terms of the E.I.A licence. The project was at an early stage, and the site conditions, including the presence of trees and lack of active works, indicated no immediate environmental risk. The...
Source-derived case information.
- Citation
- [2016] KEHC 3381 (KLR)
- Parties
- Plaintiff: Bob and Ursulla Brenneisen & 7 Others; Defendant: Shanzu Water Front Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 103 of 2014
- Procedural Posture
- Environment and Land Case / Ruling on Continuation or Discharge of Injunction After NEMA Report
- Outcome
- temporary injunction discharged; defendant permitted to continue with project, subject to future applications if warranted
- Judges
- AA Omollo
- Legal Topics
- Environmental Impact Assessment, Injunctions, Compliance With Nema Regulations, Land Use Planning
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bob and Ursulla Brenneisen & 7 Others
Plaintiff
Shanzu Water Front Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Continuation or Discharge of Injunction After NEMA Report
Legal Issues
- 1 Whether the temporary injunction restraining the defendant from continuing with construction should be confirmed or discharged pending the NEMA report.
- 2 Whether the defendant has complied with the terms of the E.I.A licence and mitigation measures as required by NEMA.
Ratio Decidendi
The court found that the NEMA report confirmed there was no ongoing construction and that the defendant had not breached the terms of the E.I.A licence. The project was at an early stage, and the site conditions, including the presence of trees and lack of active works, indicated no immediate environmental risk. The court reiterated its earlier position that the injunction was conditional on NEMA's findings. Since NEMA's report and the County Director's testimony established compliance with the licence and mitigation measures, there was no justification to maintain the injunction. The temporary orders of injunction were therefore discharged, but the petitioners retained the right to seek...
Court Disposition
temporary injunction discharged; defendant permitted to continue with project, subject to future applications if warranted
Orders
- The temporary orders of injunction issued on 30th July 2015 and extended over time are discharged.
- The defendant is permitted to continue with the project, subject to compliance with E.I.A licence and mitigation measures.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. 103 OF 2014
BOB AND URSULLA BRENNEISEN & 7 OTHERS…………..….…..PLAINTIFFS
-VERSUS-
SHANZU WATER FRONT LIMITED……………………..…..………..DEFENDANT
RULING
1. In the ruling of this Court delivered on 30th July 2015, I had granted a conditional injunction pending the making of a report to the Court by the NEMA. The Court stated that it would issue a final order on whether to confirm or lift the injunction beyond the 90 day period pegged on the contents of the current report presented by NEMA.
2. This matter has been pending for one year now because the applicant had filed an appeal against the decision of 30th July and also delay in having NEMA present their report to Court. On 28th July 2016 Mr Stephen Wambua the Mombasa County NEMA director finally took the stand to be cross – examined on his report.
3. He was examined by Mr Kagram advocae for the petitioner on functions of County NEMA director and he listed them. He explained that the project in dispute is classified as high risk hence the reason why the E.I.A was approved from Nairobi their headquarters. He also stated that they supervise the works to ensure compliance with the E.I.A licence as issued. He admitted that indigenous trees take time to grow if cut and re-planted.
4. On cross – examination by Mr Savia advocate for the respondent, he stated that an E.I.A licence was issued on 16. 10. 2013 to the Respondent to construct 4 blocks of apartments. That this was after NEMA was satisfied that comprehensive mitigating measures would be undertaken to redress the negative impacts likely to be caused by the project. That from his inspection, the 4 blocks are at the foundation level which is not a risk to the environment for the moment. He stated the need for supervision to ensure the proponent complies with the E.I.A requirements and that they have no authority to alter the plans.
5. I have perused the NEMA report dated 13th January 2016. It stated that there is no on-going construction currently and there are approximately 83 trees standing on the site. The site is fenced by a 9 feet high perimeter wall and there is one old abandoned bungalow with disused swimming pool. The report referred to the earlier report dated 27. 9.2013. This earlier report laid out what the proponent was expected to do during the construction process. The report concluded that the proposed development conforms to the existing land use of the area and is not out of character. The proponent was told to adhere to the mitigation measures intended to abate the impacts identified above.
6. Taking the contents of the report and the early stage at which the project is and reiterating my earlier decision particularly paragraph 17 of the ruling, I find no reason to stop the Respondent from continuing with the project as the County Director of NEMA stated that the proponent has not breached the terms of the licence at the stage where the development had reached. Consequently I discharge the temporary orders of injunction that were issued on 30. 7.2015 and has been extended over time.
7. The lifting of the injunction is no bar to the petitioners moving the Court in the future as the development progress in case the need arise.
Ruling dated and delivered this 9th day of September 2016
A. OMOLLO
JUDGE