[2022] KENET 730 (KLR)

China Qingjian International Group (Kenya) Limited v Director General National Environmental Management Authority; Shaw & 2 others (Interested Parties) (Tribunal Appeal 12 of 2020) [2022] KENET 730 (KLR) (Civ) (28 September 2022) (Judgment)

Neutral citation: [2022] KENET 730 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 12 of 2020

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

September 28, 2022

Between

China Qingjian International Group (Kenya) Limited

Appellant

and

Director General National Environmental Management Authority

Respondent

and

Robert Shaw

Interested Party

David Mambo

Interested Party

Simon Herd

Interested Party

Judgment

1. The appeal before the tribunal is dated March 5, 2020 and was filed on even date. The appeal challenges the decision of the respondent to revoke the appellant’s certificate of variation number NEMA/EIA/XXXX issued on March 4, 2019 and seeks that this tribunal does vary, set aside and discharge the said decision.

2. The appeal is based on the following summarized grounds:a.That the respondent issued the appellant with a restoration order dated February 21, 2020 pursuant to section 108 of the Environmental Management and Co-ordination Act in which the respondent revoked the appellant’s certificate of variation No NEMA/EIA/XXXX.b.In the same order, the respondent directed the appellant to cease all operations of the concrete batching mixing plant (CBP) with immediate effect, decommission the same plant within seven (7) days of the date of issuance of the restoration order and lastly directed the appellant to restore the site to its near original state before the project implementation.c.The basis of the restoration order was that there was a substantial change to the project as the appellant was operating a CBP instead of a graded crusher stone (GCS) mixing plant. According to the appellant, it has never installed a CBP and has always operated a GCS as indicated in the certificate of variation.d.The appellant is not aware of any ground inspection carried out on November 20, 2019 and February 20, 2020 to lay basis for the issuance of the restoration orders and none of the appellant’s employees was aware or involved in the alleged ground inspection.e.Upon receipt of the restoration order, the appellant wrote to the respondent requesting the respondent to conduct another ground inspection in the presence of the appellant’s technical team who would be at hand to provide any clarifications that may be required for the inspection.f.There is no crushing that takes place at the site since aggregate and cement which are mixed at the said GCS mixing plant are outsourced and the only operations conducted at the said site is mixing of the two in a controlled environment.g.The appellant has been contracted by the Government of Kenya to carry out the dualling of the Ngong Road, Dagoretti Corner to Karen Roundabout Road (Contract Number KURA/XXXX) whose revised completion date is July 13, 2020. h.There has been numerous meetings between the appellant and the Karen Langata District Association and no party has ever raised any objection or concerns over the project but the restoration order was issued to coincide with another suit Nairobi Environmental and Land Court Case Number 29 of 2020 Robert Shaw & 2 Others vs Director General, National Environment and Management Authority & 2 Others filed by a member of Karen Langata District Association and has named the appellant and the respondent herein as the respondents to that suit.i.The appellant also alleges that one Mr Robert Shaw sent an email to the respondent and there is correspondence in which the respondent states that he has revoked the appellant’s certificate of variation. According to the appellant, the restoration order was the outcome of false misrepresentations and the outcome of the events point to intimidation, blackmail and suspicious circumstances.j.Finally, the appellant states that the project that it is undertaking is worth billions of shillings funded by the public and it is in the public interest that the decision of the respondent be revoked.

3. The respondent opposed the appeal on the following grounds:a.The respondent issued an environmental impact assessment (EIA) license No NEMA/EIAXXXX to the appellant on April 12, 2018 for proposed campsite comprising offices, material laboratory, yards, restaurant, storage, associated facilities and amenities.b.On March 4, 2019, the respondent issued the appellant with a certificate of variation of the aforesaid license to include a GCS Mixing plant subject to the conditions of the existing EIA licence.c.On November 20, 2019 and February 17, 2020, the respondent carried out ground inspections in which it established that the appellant had installed a CBP instead of a GCS mixing plant which was a substantial change of the approved project. The respondent made a decision to issue the restoration order dated February 21, 2020 in which it revoked the certificate of variation No NEMA/EIA/XXXX and directed the appellant to immediately cease all operations of the CBS.d.Further to the above, section 108 of EMCA empowers the respondent to enter and inspect any projects and ensure there is compliance with the environmental standards and legal requirements and it is not mandatory to inform the person or institution subject of the inspection.e.Lastly, the respondent states that the fact that the project is of public interest and time bound does not negate the requirement to conform with the provisions of EMCA and urges that the appeal be dismissed with costs.

4. The interested parties (IPs) were admitted in this suit having filed an application to this tribunal seeking to be enjoined as such on the grounds that they are neighbors to the project site and are directly affected by the disputed EIA licence and they had instituted Nairobi Environmental and Land Court Case Number 29 of 2020 Robert Shaw & 2 Others vs Director General, National Environment and Management Authority & 2 Others over the same project that is in dispute in this appeal. The interested parties filed affidavits sworn by Robert Shaw, the 1st interested party herein in which they opposed the appeal on the following summarized grounds:a.The IPs were not aware of the intended variation of the EIA licence and they did not give views prior to the variation which they hold was granted in error.b.Upon becoming aware of the project, the IPs approached the Karen Langata District Association (KLDA) who organized for a meeting with the appellant and the Kenya Urban Roads Authority (KURA) in which the KLDA had raised complaints about excess dust, emissions and noise generated from the activities of the appellant. The resolutions of the meeting were communicated to the appellant and copies to the interested parties and the KLDA vide a letter dated August 21, 2019. c.There is no requirement for the respondent to inform the appellant of the intention to carry out ground inspection and the said inspection was carried out within the law and cannot be ignored.d.The certificate issued by Quality Assurance Systems Limited indicating that the appellant is operating a CGS mixing plant cannot be trusted since the same was commissioned by the appellant without involvement of the other parties.e.According to the IPs, this appeal was merely filed to ‘buy’ time for the project to be completed while negatively affecting the IPs and KLDA.f.Finally, the IPs state that they do not have any other interest in this matter apart from protection of the environment and they urge the tribunal to invoke the precautionary principle to stop the ongoing works at the disputed project site.

5. On September 1, 2020, the tribunal gave directions on the filing of submissions as well as an inspection report with photographs to establish whether the machine on site is a GCS mixing plant or a CBP. All the parties filed their written submissions while there were site visit reports filed by the respondent and the interested parties on October 13, 2020 and September 14, 2020 respectively.

6. We have perused all the pleadings, submissions, site visit reports and considered all the oral submissions made by counsel in the course of this appeal. We find the appeal filed herein to be raising two issues for our determination:a.Whether the appellant is relying on the certificate of variation number No NEMA/EIA/XXXX to operate a grading crusher stone in place of a concrete batching plant; andb.Whether the restoration orders dated February 21, 2020 were issued in accordance with the law.

a. Whether the appellant is relying on the certificate of variation number No NEMA/EIAXXXX to operate a concrete batching plant in place of a grading crusher stone mixing plant. 7. The matter before the tribunal emanates from the restoration order dated February 21, 2020 in which the respondent stated that it had conducted ground inspections at the appellant’s premises on November 20, 2019 and February 17, 2020. According to the respondent, it established after the said ground inspections that the appellant has been operating a CBP instead of a GCS mixing plant, which was a substantial modification from the certificate of variation in place. The effect of the modification was that the respondent revoked the certificate of variation that it had issued to the appellant, directed the appellant to cease operations of the CBP with immediate effect, to decommission the CBP and to restore the site to near its original state before the project implementation.

8. The orders issued by the respondent triggered the current appeal in which the appellant insists that it is operating a GCS mixing plant and has complied with the EIA licence conditions. In its documents filed at the tribunal, the appellant produced a calibration certificate to show that the contested equipment is indeed a GCS batch plant.

9. The report is opposed by the interested parties who challenge its authenticity on the basis that it was commissioned by the appellant to the exclusion of the other parties who are affected by the project.

10. The respondent filed a site monitoring inspection report for the disputed matter on October 13, 2020, which inspection was carried out by four officers of the respondent. At the introduction of the inspection report, it is indicated that, 'the aim of the site monitoring visit was to ascertain whether the project is currently being operated as a batching plant or a graded crushed stone mixing facility.'

11. The observations of the respondent’s officers as per their report were that, The monitoring exercise established that what is installed at the site is a graded crushed stone (GCS) batching plant.

At the time of the site monitoring exercise, the installed graded crushed stone (GCS) batching plant was in operation.

It was observed that there were mixer mounted trucks (one leaving the site and one on site) being used to ferry the stabilized graded crushed stone (SGCS).

The operator of the graded crushed stone (GCS) batching plant on noticing the NEMA team switched off the batching plant and the generator and left the site.

ConclusionThe project proponent is operating the installed graded crushed stone (GCS) batching plant and not as graded crusher stone mixing plant.' 12. The restoration order in question was issued on the basis that the appellant had installed a concrete batching plant contrary to the variation certificate which had only allowed for the installation of a graded crusher stone mixing plant. In its site visit report filed on October 13, 2020 pursuant to the orders of this tribunal, the respondent reports that the equipment on site is a ‘graded crushed stone batching plant’ while the appellant filed a calibration certificate for the same equipment and referred to it as a ‘GCS batch plant’.

13. In its submissions, the respondent submits that it is difficult to ascertain whether the plant is solely being operated as a batching plant or a mixing plant but proceeds to submit that the contested equipment is operating as a mixing plant and a batching plant contrary the certificate of variation. The dispute as we see it is whether the appellant is operating a ‘batching plant’ instead of a ‘mixing plant’.

14. In the instant appeal, the appellant sought the intervention of this tribunal seeking a revocation of the restoration order issued by the respondent and the intervention is based on the fact that it was accused of having installed a concrete batching plant whereas according to it, the only equipment at site was the GCS mixing plant but in its own calibration certificate, it described the equipment as a ‘GCS batch plant’.

15. Upon receipt of the restoration order dated February 21, 2020, the appellant wrote to the respondent protesting that it was not involved or informed of the ground inspection that led to the issuance of the decision by the respondent. The appellant reiterated that it had only installed a GCS mixing plant and not a CBP as alleged, however, when making its request for joint inspection, the appellant stated as follows, 'We hereby request for a joint inspection of the installed ‘batching plant’ before revoking of the certificate No NEMA/EIA/XXXX.' (Emphasis supplied)

16. The appellant and the respondent have both presented documents that describe the contested equipment as a batching plant. On its part, the appellant states that the end product of a GCS is graded crushed stone whereas the end product of the CBP is concrete. In its site visit report filed on October 13, 2020, the respondent states that the machine operates both as a mixing plant and a batching plant.

17. We note that the interested parties did not prepare any expert report over the contested equipment yet after perusing through the numerous documents filed by the parties, we are of the view that the nature of the contested equipment requires technical expertise to be employed in determining the true identity and purpose of the machine.

18. Although this tribunal has jurisdiction to set aside the decisions of the respondent, the jurisdiction must be exercised judicially and with caution to avoid clumping down the respondent by curtailing its exercise of the statutory mandate as the overall lead agency entrusted with the solemn duty of ensuring that a clean and healthy environment is achievable for all and sundry. Considering the evidence that has been availed in this appeal over the nature of the equipment on site and the admission by the appellant in its own calibration certificate that the equipment is indeed a ‘batch plant’, we do not find any reasons whatsoever to exercise our powers to set aside the decision of the respondent issued vide its restoration order dated February 21, 2020.

b. Whether the restoration orders dated February 21, 2020 were issued in accordance with the law. 19. Section 108 of EMCA empowers the respondent to issue restoration orders in respect to any matter relating to the conservation of the environment. The respondent states that it conducted ground inspection on November 20, 2019 and February 21, 2020 but the appellant contends that no ground inspection was conducted.

20. Section 109 (6) of EMCA provides,'(6) It shall not be necessary for the authority or its Inspectors in exercising the powers under subsection (2), to give any person conducting or involved in the activity which is the subject of the inspection or residing or working on or developing land on which the activity which is the subject of the inspection is taking place, an opportunity of being heard by or making representations to the person conducting the inspection.'

21. The appellant’s basis for disputing the ground inspection is that its employees and the technical team thereof were not informed of such inspection. The appellant depones that the technical team could have provided clarifications for any queries that could have been raised during the ground inspection. On February 24, 2020, the appellant through its site agent Eng Michael Gitungo wrote to the respondent requesting for a joint inspection of the installed ‘batching plant’ but states that the said letter was never replied to or acted upon.

22. Whereas ground inspections of this nature do not require the respondent to contact the subject of the inspection, we do not find any cogent reason and none has been availed thus far to explain the refusal by the respondent to accede to the joint inspection. It is probable that such joint inspection would have provided clarity to the question of the identity and description of the contested equipment as well as the contested functions of the same, however and for avoidance of doubt, we reiterate that there is no legal requirement for the respondent to issue any notice before conducting a ground inspection.

23. That notwithstanding, the tribunal ordered for another inspection be conducted at the site during the pendency of these proceedings and a report on the same be filed. The respondent and the interested parties filed their reports as well set out elsewhere in this judgment addressing the contention on whether the disputed equipment is a ‘batching plant’ or a ‘mixing plant’. The tribunal finds the allegations by the appellant that it was not accorded an opportunity to participate in the site inspection as otiose and cannot constitute a valid reason to set aside the decision of the respondent.

24. The interested parties have raised numerous issues in their objection to the appeal but they appear to be establishing new causes of action separate from what the primary parties have presented in their pleadings. It is now a well - established principle that interested parties cannot appear to institute their own suit within an existing suit. The reasons for admission into the appeal as interested parties is based on logical parameters and not for purposes of expanding the scope of the existing appeal.

What orders should the tribunal make 25. The tribunal finds that the restoration orders issued on February 20, 2020 were issued within the powers of the respondent. The orders were issued in accordance with the law and are valid, therefore, the tribunal makes the following orders:a.The notice of appeal dated March 5, 2020 is dismissed.b.Each party to bear its own costs.

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