[2021] KENET 651 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENT TRIBUNAL

AT NAIROBI

TRIBUNAL APPEAL NO. NET 02 OF 2020

DENVIC PROPERTY MANAGERS LIMITED...APPELLANT/APPLICANT

=VERSUS=

THE NATIONAL ENVIRONMENTAL

MANAGEMENT AUTHORITY............................................1ST RESPONDENT

LONDON DISTILLERS (K) LIMITED...............................2ND RESPONDENT

AND

EXPORT PROCESSING ZONE AUTHORITY......1ST INTERESTED PARTY

MACHAKOS COUNTY GOVERNMENT,

DEPARTMENTOF ENVIRONMENT AND

NATURAL RESOURCES..........................................2ND INTERESTED PARTY

MAVOKO WATER & SEWERAGE COMPANY....3RD INTERESTED PARTY

GREATWALL GARDENS LIMITED......................4TH INTERESTED PARTY

ERDEMANN PROPERTY LIMITED......................5TH INTERESTED PARTY

RULING

1. The Appellant filed two Applications by way of Notice of Motion dated 6th March 2020 and 1st July 2020. Both Applications seek the Tribunal’s orders to restrain the 2nd Respondent from discharging raw sewage, untreated water or any other untreated effluent from its premises into the 1st Interested Party’s sewer line or environment generally. They also pray that the 2nd Respondent be restrained from continuing with unlawful emission of odour from its premises in contravention of ambient air quality limits pending the determination of the Applications and the Appeal.

2. The Application dated 6th March 2020 seeks other prayers for collection of samples of the water effluent discharged from the 2nd Respondent’s factory as well as records of the air quality kept by the Respondent for the last 24 months.

3. The Applications are opposed by the 2nd Respondent while the 5th Interested Party supports them. The 2nd Respondent filed a lengthy Replying Affidavit sworn by Benjamin Langwen sworn on 13th May 2020 as well as a Notice of Preliminary Objection (the P.O) dated 19th August 2020 in which it challenged the jurisdiction of this Tribunal to entertain the Appeal.

4. The P.O is based on the grounds that the 1st Respondent has not made any decision capable of being challenged in this Appeal, there was a private contract between the 2nd Respondent and the 1st Interested Party, the orders sought against the 2nd Respondent are incompetent and the whole appeal is an abuse of the court process as the appeal is sub judice other proceedings of the Tribunal and the Machakos Environment and Land Court.

5. The 1st, 2nd, 3rd and 4th Interested Parties did not file responses or submissions to the Applications or the Notice of Preliminary Objection.

6. The 5th Interested Party filed two affidavits in which it supported the Applications and among other things, stated that the residents and home owners of the developments adjacent to the 2nd Respondent’s distillery, as well as the members of the public using the water downstream Athi River stand gravely prejudiced by the alleged water pollution while the residents of its development by the name of Greatwall Gardens have complained on numerous occasions about the pollution emanating from the 2nd Respondent’s premises.

7. The 2nd Respondent opposed the Applications vehemently. In its response, the 2nd Respondent denied that it discharges any untreated sewage into the public sewer line or environment or discharges any odour into the environment. Further, the 2nd Respondent blamed the 5th Respondent through its controlling mind, one John Zeyun Yang for its woes and accused it of sponsoring other persons to file appeals against it through different law firms.

8. Further to the above, the 2nd Respondent alleges that the instant Applications are driven by the 5th Interested Party’s vendetta and intention to subdue the 2nd Respondent due to its vehement objection to the development of the housing estate by the 5th Interested Party. In his affidavit, Benjamin Langwen claims that the 2nd Respondents has been previously vandalized by the 2nd, 3rd and 5th Interested Parties leading to the closure of the 2nd Respondent’s factory and loss of revenue which dispute is subject of Machakos ELC 104 of 2019, London Distillers (K) Limited vs Mavoko Water and Sewerage Company and Others.

9. In further denial of culpability, the 2nd Respondent states that it does not discharge effluent to Athi River but rather to the 1st Interested Party’s main trunk sewer line pursuant to a contract entered with the 1st Interested Party in 2014. The 2nd Respondent states that all the effluent that it discharges to the 1st Interested Party’s sewer line is pre-treated and is in conformity with the law. It denies that there is any odour that emanates from its factory as it has invested in state of the art machinery to prevent such odour and it routinely submits the Source Emission Testing Reports and Atmospheric Dispersion Modelling Reports to the 1st Respondent.

10. In further response, the 2nd Respondent claimed that the 5th Interested Party has been illegally interfering with a man hole in the 1st Interested Party’s sewer line and has been unilaterally been collecting, adulterating and generating reports purportedly emanating from the effluent from the 2nd Respondent’s factory. Lastly, the 2nd Respondent claims that the 1st Interested Party’s sewer line is connected to many factories in Athi river and it is not possible to single out that the offending effluent is from its factory as opposed to the other factories.

11. We have considered all the pleadings, the affidavits thereof, the submissions of the parties and the authorities cited in support of the competing positions taken by the parties.

12. We derive the two main issues for determination of the Application to be as follows:

a. Whether this Tribunal has jurisidiction to hear the Appeal before it;

b. Is the Appellant entitled to the orders sought in the Notice of Motion Applications dated 6th March 2020 and 1st July 2020?

c. What orders should the Tribunal make?

a. Whether this Tribunal has jurisdiction to hear the Appeal before it?

13. Jurisdiciton is evertything, without which, this Tribunal cannot take any other step toward hearing any matter. See Owners of Mv “Lillian S” v Caltex Oil (Kenya) Ltd (1989) eKLR.

14. The jurisdiction of this Tribunal flows from section 129(1) and (2) of the Environmental Managemenent and Co-ordinatiion Act (EMCA).

15. Part of the claim that the Applicant has filed in this Tribunal is that the 2nd Respondent has been violating EMCA and the regulations thereof but the 1st Respondent has declined to act. The Appellant further claims that the 1st Respondent has failed to take action against the 2nd Respondent in spite of numerous complaints against the pollution. To this end, the Appellant has exhibited letters addressed to the 1st Respondent and dated 15th November 2019 and 26th Septemebr 2019.

16. The 2nd Respondent’s objection to the Tribunal’s jurisdiciton includes the fact that the 1st Respondent has not taken any decision to warrant any action under section 129(1) of EMCA.

17. It is true that there is no decision made under section 129(1) of EMCA,however, it is clear beyond peradventure that the Appellant has approached the Tribunal on the allegations that the 1st Respondent has failed to make decisions that it is empowered to make under EMCA and this places the matter under section 129(2) of EMCA.

18. In NET 15/2018, Erdemann Property Limited vs Director General NEMA & Others, this Tribunal held as follows:

“14. The Tribual draws its jurisdiction in the matter under Section 129(2) of the Environmental Management and Coordination Act. It must exercise its jurisdiciton in accordance with sections 2, 4 and 7 of the Fair Administrative Actions Act.

15. Section 2 of the Fair Administrative Action Act, defines a “decision” to mean any administrative or quasi-judicial decision made, or proposed to be made as the case may be. A “failure” in relation to the taking of a decision, includes a refusal to take the decision.

16. The Tribunal holds that the failure to act or to make a decision on the subject matter of the appeal was a decision as per the definition in the Fair Administrative Actions Act. Looking at the record it would show that the Director General had made submissions before the National Assembly on the issue herein some months before the appeal was filed and despite the matter being one of public notoriety in the area, he failed to act……”

19. In the instant Appeal, we have seen numerous letters addressed to the 1st Respondent on the complaints that have now been filed as an Appeal before this Tribunal. The letters contain the 1st Repondent’s official stamp and there is no affidavit from the 1st Respondent denying the authenticity of the communication or any denial that the 1st Respondent was not aware of the matters complained about. Accordingly, we find that we have jurisdiction to hear and determine the Appeal. All the other grounds of the Preliminary Objection fall by the wayside.

b.Is the Appellant entitled to the orders sought in the Notice of Motion Applications dated 6th March 2020 and 1st July 2020?

20. In its Applications, the Applicant has annexed the following documents:

i. A notice by the 1st Interested Party dated 21st May 2020 in which it issued a notice to the 2nd Respondent indicating that the effluent from the distillery did not meet the required standards for discharge to a public sewer. The notice required the 2nd Respondent to take the ‘necessary corrective action’;

ii. A closure order issued to the 2nd Respondent by the 1st Respondent on 6th February 2017 which cites various ground inspections carried out in 2016 as a result of public complaints on environmental pollution;

iii. A letter dated 8th February 2018 addressed to the 2nd Respondent by the 1st Respondent in which the 2nd Respondent was required to submit reports for the stack emission and to take air quality measurements;

iv. A letter dated 17th September 2019 by the County Government of Machakos addressed to the 2nd Respondent in which the said County notified the 2nd Respondent that its discharge into the sewer line was not meeting the parameters that have been set down in the Water Quality Regulations. The County warned the 2nd Respondent that failure to comply with the water quality regulations within one month from the date of receipt of that letter would lead to blockage of the sewer line; and

v. A report of the National Assembly inquiry into complaints of environmental pollution by the 2nd Respondent, dated 15th October 2018, which report made recommendations on the pollution alleged to have been emanating from the 2nd Respondent’s factory.

21. The 1st Interested Party is described as the owner of the sewer line into which the 2nd Respondent is accused of discharging the raw sewage but interestingly, it did not file any response to the Application despite being ordered by the Tribunal to do so.

22. We have perused the various notices and reports by the authorities that have written to the 2nd Respondent on the question of pollution on various occasions. The 2nd Respondent has denied that it discharges any raw sewage or untreated effluent into the 1st Interested Party’s public sewer line. It has also been deponed that there are numerous factories within its vicinity, all which dicharge their effluent into the 1st Interested Party’s main trunk sewer line. The factual position in such a disputed subject cannot be proved or disproved at this interlocutory stage of the proceedings as this calls for scientific evidence to be tendered on the points of entry of such effluents and such evidence to be tendered tested in the normal way. The conclusion on the exact cause, consequences and extent of the alleged pollution is best addressed during the hearing of the main appeal.

23. Similarly, the allegations of the emission of odour from the 2nd Respondent’s factory require to be proved during the hearing of the main appeal before the Tribunal can pronounce itself with finality on the complaints raised against the 2nd Respondent.

24. The prayers on the continous collection of samples from the 2nd Respondent’s factory for 12 months would also presuppose that the 2nd Respondent has indeed been found guilty of pollution or that there is a reasonable basis to reach such a conclusion. We deliberately decline to make such a finding before the hearing of the merits of the dispute. Accordingly, those prayers are declined.

25. The prayer for the production of the records of the Air Quality Monitoring Records is also declined as the same ought to be pursued under the channels that are well set out in the law.

C. What orders should the Tribunal make?

26. The Tribunal makes the following orders:

a. The Notice of Preliminary Objection dated 19th August 2020 is dismissed with no order as to costs;

b. The Applications dated 6th March 2020 and 1st July 2020 are dismissed with no orders as to costs.

c. The 1st Respondent shall in consultation with the parties in this Appeal collect samples as may be necessary to confirm the compliance with the Environmental Management and Co-ordination (Water Quality) Regulations, 2006 and the Environmental Management And Co-ordination (Air Quality) Regulations, 2014 and file a report before the Tribunal prior to the hearing of the Appeal;

d. The Appellant shall file all the Witness statements for the witnesses it intends to call at the hearing of the Appeal as well as its bundle of documents and expert reports (if any) within ten days of delivery of this Ruling;

e. The Respondents and the Interested Parties shall file all their Witness statements for the witnesses they intend to call at the hearing of the Appeal as well as its bundle of documents and expert reports (if any) within ten days of service being effected upon them by the Appellant;

f. The Appeal shall be mentioned on 26th April 2021 to confirm compliance with the above directions and for directions on the hearing of the Appeal.

DATED AND DELIVERED AT NAIROBI, THIS 7TH DAY OF APRIL 2021

Mohammed Balala..............................................Chairperson

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

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

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

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