[2018] KENET 32 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIROMENT TRIBUNAL AT NAIROBI

TRIBUNAL APPEAL NO. NET 151/2015

CHARLES ONGADI NYAMBUGA….……………………………1ST APPELLANT

ERIK DILERUD……….……………………….…………………2ND APPELLANT

ALICE OYUGI MAGANYA…………………….……………………3RD APPELLANT

OLIVER SOREN OTIENO………….….……………….…………….4TH APPELLANT

GEOFFREY MOMANYI BIGOGO.…………………….…………….5TH APPELLANT

JIMMY PITTCHAR ……….………………………………………….6TH APPELLANT

THOMAS GODFREY MACHENERI…………..…….…………………..7TH APPELLANT

-VERSUS-

NATIONAL ENVIROMENT MANAGEMENT AUTHORITY (NEMA)

……….………………………………………...................................1ST RESPONDENT

CALEB ODHIAMBO OGUYA…………………….............……2ND RESPONDENT

JUDGMENT

1. By the Notice of Appeal dated 4th June, 2015 [filed: 11th June, 2014] signed by all Seven (7) Appellants, the Appellants herein appealed against the 1st Respondent’s approval of the construction by the 2nd Respondent of two-four storey multi dwelling units on plots number 13432/10 and 13432/11, both situated in Kisumu County near Riat Hills, which approval was in the form of the issuance of an Environmental Impact Assessment (EIA) License dated 13th April, 2015 [ Registration No. 0027607].

2. The Appellants’ Appeal was premised on the following ten (10) grounds:

a. There was no public participation in the Environmental Impact Assessment process;

b. The Environmental Impact Assessment was done contrary to the requirements of the Environmental Management and Coordination Act (EMCA) and the Environmental Impact Assessment Regulations;

c. Lack of a Change of User for the Construction;

d. Negative effects on the environment in the locality including air pollution, noise pollution, waste management, blockage of the frontal view and light for the neighbouring plots;

e. The immediate neighbours were not consulted;

f. Breach of approved zoning for the area;

g. There is no sewer line in the area to cater for the new project;

h. The buildings would cause infringement of privacy of the neighbours;

i. The Project would change the character of the locality and spur other similarly anomalous projects; and

j. The septic tank is likely to cause ground water pollution.

3. In support of the above, the Appellants filed numerous list and bundles of documents, adducing documentary evidence in support of their contentions.

4. Both Respondents entered appearance in this matter and filed their substantive responses to the Appeal. Their relative positions were as follows:

i) The 1st Respondent entered appearance vide a Memorandum of Appearance dated 25th June, 2015 [filed :26th June, 2015]. Thereafter it filed the “1st Respondent’s Written Reply to the Appeal” dated 20th June, 2015 [filed: 27th July, 2015]; whose chief points were THAT:

a) The 1st Respondent had properly considered and approved the Environmental Impact Assessment Project Report No. NEMA/CP/PR/1/1/1343 submitted on behalf of the 2nd Respondent; and thereafter issued the 2nd Respondent with the EIA License dated 13th April, 2015;

b) The Project Report was supported by all the relevant documentation;

c) The 1st Respondent submitted the Project Report to all the relevant Lead Agencies as well as the District Environment Committee for comments but none were received;

d) The 1st Respondent did not receive any Objection to the Project prior to granting approval for the same;

e) The alleged environmental harm outlined by the Appellants are not supported by evidence; and

f) The Appeal is frivolous, vexatious and lacking in merit; and should be dismissed with costs being borne by the Appellants.

g) That the allegations On the Appeal are not supported by any evidence and thus are Frivolous, vexatious and lacking in merit.

h) That the appeal is dismissed and costs be met by the Appellant.

ii) The 2nd Respondent entered appearance vide a Notice of Appointment of Advocates dated 23rd April 2016 [ Filed: 25th April, 2016]. The 2nd Respondent’s Reply to the Appeal was dated 23rd April, 2016 [ Filed: 25th April, 2016]; whose chef points were THAT:

a. The Appeal before the Tribunal was incompetent and improper since there was no disputed decision disclosed in the Notice of Appeal;

b. The Appeal was sub judice Kisumu ELC Case NO. 9 of 2015;

c. The EIA License issued to the 2nd Respondent by the 1st Respondent was properly issued;

d. The 2nd Respondent received all requisite approvals and licenses;

e. The Project in question is compatible with the zoning for the area;

f. Some of the Appellants have themselves constructed similar projects in the locality; and

g. The Appeal is driven by mischief and is spurious.

5. In support of their relative positions, both Respondents filed List and Bundles of Documents. The Matter progressed to Hearing where all Parties presented Witness Testimony. Thereafter, the Parties filed Written Submissions as follows:

a.The Appellants Written Submissions dated 13th May, 2016 [ Filed: 16th May, 2016];

b.The 1st Respondent did not file written submissions, indicating to the Tribunal through counsel on 21st February, 2017 that it would rely on the evidence and pleadings filed and in particular its Reply to Appeal and the Respondents’ Witness Testimony; and

c.The 2nd Respondent’s Written Submissions dated 16th August, 2017 [ Filed: 18th August, 2017].

6. The Parties appeared before the Tribunal on 21st February, 2017 for Highlighting of Submissions before a Panel comprising of Mohammed S. Balala (Chairperson), Christine Kipsang, Bahati Mwamuye, Waithaka Ngaruiya and Kariuki Muigua.

7. The Tribunal noted that the 2nd Respondent filed a Notice of Preliminary Objection dated 23rd April, 2016 [ Filed: 25th April, 2016] which challenged the admissibility of the Appeal as well as the question of sub judice. The Tribunal further notes that on 20th May, 2016 Counsel for the 2nd Respondent prayed for the dispensing with of “the 2nd Respondent’s Preliminary Objection and other pending interlocutory applications” so that the “appeal is heard wholesome on its merits.”

8. Accordingly, the Chairperson of the Tribunal marked the Preliminary Objection as withdrawn; and the Matter progressed to Witness Testimony beginning with the Appellants’ Case on 6th June, 2016 in Kisumu.

9. The Tribunal has analyzed the Pleadings, Testimony and Written Submissions in this Matter and determined that there are four (4) Issues for Determination, namely:

i. Whether the Environmental Impact Assessment Project Report No. NEMA/CP/PR/1/1/1343 was submitted to the requisite degree of Public Participation;

ii. Whether the Environmental Impact Assessment License dated 13th April, 2015 [ Registration No. 0027607] was properly issued by the 1st Respondent to the 2nd Respondent;

iii. Whether the Proposed Project poses environmental harm to the locality; and

iv. Who should bear the costs of the Appeal.

Appellants’ Case

10. With regard to the first issue for determination, the Appellants contended that there was no meaningful public participation in the environmental impact assessment process. They contended that as the immediate neighbours to the Project their views were not qualitatively sought and the questionnaires submitted were disregarded by the Lead Expert in formulating the Project Report. In summary, the Appellants contended that the public participation conducted was cursory and fait accompli.

11. With regard to the second issue for determination, the Appellants contended that the EIA License would not have been issued by the 1st Respondent had it properly considered both the Report as well as the fact that the Project had been initiated and substantively progressed in terms of construction well before the EIA License was issued.

12. On the third issue for determination, the Appellants contended that the Project discloses numerous environmental concerns regarding air pollution, noise pollution, waste management, blockage of the frontal view and light for the neighbouring plots, insufficient parking and change of the environmental character of the area.

13. Lastly, the Appellants prayed for the Costs of the Appeal.

1st Respondent’s Case

14. With regard to the first issue for determination, the 1st Respondent maintained that there was sufficient evidence of meaningful public participation. The 1st Respondent underscored that public participation is not “an exact science” but from the Project Report there was evidence that the same had been satisfactorily done, despite some minor anomalies.

15. On the question of the probity the EIA License it issued, the 1st Respondent pointed out that it received no objections or comments from the Lead Agencies and the District Environment Committee which it submitted the Project Report to. Further, the 1st Respondent averred that it received no negative comments from the Public prior to the issuance of the License in question.

16. On the third issue for determination, the 1st Respondent maintained that the Project Report properly identified all potential environmental harm and provided adequate mitigation measures for the same. The 1st Respondent also stated that a number of the environmental concerns raised by the Appellants were remote.

17. With regard to the Costs of the Appeal, the 1st Respondent prayed that the Respondents be awarded the same.

2nd Respondent’s Case

18. In addition to fully associating itself with the 1st Respondent’s position, the 2nd Respondent advanced several additional arguments touching on the issues for determination.

19. The 2st Respondent stated that Herbert Lwanga Chamwada , the EIA Lead Expert, prepared the EIA Project Report in full compliance with all legal requirements. The 2nd Respondent underscored that Mr. Chamwada during his evidence testified that he had interviewed at least ten people including the 1st and 2nd Appellants who were the immediate neighbours to the project. Mr. Chamwada stated that he went a further step and visited the Appellants premises for further discussions, which also continued via email. He testified that he also furnished the Appellants with the building plans and all documentation that they required. The 2nd Respondent further stated that Mr. Chamwada explained that the Project was small and did therefore require gazettement.

20. The 2nd Respondent’s was emphatic that there was no and would be no obscuring of light and that there were taller buildings in the vicinity and none had blocked light or sunshine in the locality. The 2nd Respondent maintained that the septic tank plans were approved and the septic tank was going to have sufficient capacity to serve the buildings. Further, the 2nd Respondent averred that it was constructing top scale residential apartments that would be of high standards.

21. Lastly, the 2nd Respondent prayed for the Costs of the Appeal.

Analysis and Findings

22. The Tribunal has carefully studied the Pleadings and Submissions by the Parties herein and the Issues for Determination by the Tribunal. We set down our analysis and findings on each Issue for Determination.

23. With regard to the first issue for determination, the Appellants have satisfied the Tribunal that there was no meaningful public participation in the environmental impact assessment process and that the public participation conducted was cursory and fait accompli. During the hearing on the 18th April, 2017 the 2nd Respondent’s Witness stated that ten persons were directly interviewed by him, including two immediate neighbours. The Witness conceded that all the seven (7) questionnaires at Appendix 6 of the Project Report were the only questionnaires returned. Further, the Witness was unable to give particulars of the other eight (8) persons interviewed by him; nor did he give a convincing response to the allegation advanced by the Appellants that the majority of the participants in the public participation he conducted were actually workers on the Project.

24. The Tribunal also finds that the 2nd Respondent did not adequately engage the immediate neighbours to the Project, who are all found in very close proximity to the Project, before preparing the Project Report.

25. The Tribunal further finds that it is not in dispute that the construction of the Project started and had substantially progressed before the issuance of the EIA License. All Parties agreed that it was the 1st Respondent’s action of stopping ongoing works and ordering that a Project Report be prepared that caused the 2nd Respondent to attempt compliance with the provisions of EMCA. We are satisfied that the Project Report was a foregone conclusion rather than a genuine and independent exercise.

26. With regard to the second issue for determination, the Tribunal finds that in the circumstances of this case, and in light of the fact that the 2nd Respondent had been constructing and was stopped by the 1st Respondent through a Stop Order issued by it, the 1st Respondent should have taken proactive measures greater than in a situation where Section 58(1) of EMCA had been complied with by the Proponent. It would have been prudent for the 1st Respondent to take additional steps to seek comment from the Lead Agencies before issuing of the EIA License.

27. The Tribunal also notes that the 1st Respondent’s Site Visit Report dated 7th February, 2015 was insufficiently detailed for the circumstances of a Proponent who has initiated and substantially progressed construction without a license. The Site Visit Report stated “the project will not cause any major negative environmental impacts if the prescribed suggestions by the relevant departments (of NEMA) are taken into account” but did not state what those suggestions were. At no point in the proceedings did the 1st Respondent adduce those departmental concerns and as such the Tribunal was unable to draw a linkage between them, the Project Report and the License Conditions.

28. With regard to potential negative environmental impacts, the Tribunal finds that the same were insufficiently canvassed in the Project Report. As earlier stated, the Project Report was to our minds a fait accompli. Applying the precautionary principle, we find that the risk of harm to the environment arising from an improperly framed Project Report with insufficient mitigation measures for environmental risks is too great.

29. The Tribunal also notes that our visits to the Project Area satisfied us that the Project in question poses significant environmental risks within the locality arising from waste management, blockage of the frontal view and light for the neighbouring plots and issues arising from destruction of existing vegetation through parking in unauthorized areas; given the insufficiency of parking within the Project itself.

30. It is our overall finding that the Appeal herein is merited.

ORDERS

31. Accordingly, and for the reasons explained in the foregoing Paragraphs, the Tribunal unanimously:

a. Allows the Appeal herein in terms of Prayers i, ii, iii and v of the Notice of Appeal dated 7th June, 2017;

b. Cancels the EIA License dated 13th April, 2015 issued by the 1st Respondent to the 2nd Respondent,

c. Issues an Environmental Restoration Order with regard to the Suit Premises as against the 2nd Respondent; which Order shall be applied and enforced by the 1st Respondent at the cost of the 2nd Respondent; and which Order shall require the demolition of the Project on Plot Number KISUMU/13432/10 and KISUMU/13432/11, the restoration of all soils, flora and natural features therein, together with the supervised removal of all building materials and sources or causes of pollution and/or environmental hazard or damage on the Suit Premises; within sixty (60) days of the lapse of the period set out under Section 130(1) of the Environmental Management and Co-ordination Act; and

d. The Costs of the Appeal are awarded to the Appellants and to be borne by the 2nd Respondent.

DATEDandDELIVERDat NAIROBI This26TH DAYof NOVEMBER, 2018.

Mohammed S. Balala……………………………… Chairperson

Christine Kipsang.……………………….………Vice Chairperson

Bahati Mwamuye…………………………….….…………Member

Waithaka Ngaruiya……………………………………..…..Member

Kariuki Muigua………………….………………………….Member