[2021] KENET 203 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENTAL TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.22 OF 2019

ELIJAH NGUMI MUGO ...........................APPELLANT

VERSUS

DIRECTOR GENERAL NATIONAL ENVIRONMENT

MANAGEMENTAUTHORITY NEMA..RESPONDENT

JUDGMENT

1. The Present Appeal filed on 14th August 2019 seeks the following orders.

a. An order for quashing and setting aside the restoration order contained to the letter dated 31st July 2019.

b. An order for permanent injunction prohibiting the Respondent from issuing any further restraining orders against the Appellant’s business.

c. Costs of this suit.

2. The Respondent filed Notice of Appointment of Advocates and Statement of Defence to this Appeal and sought the same to be dismissed on the ground that the Appellant’s establishments are irregular and unlawful not conforming with health and safety standards and encroaching on road reserve and contravenes the provisions of the Environment Management and Coordination Act No. 8 of 1999 hence the rostarion order issued for compliance.

3. The Appellant filed Written Submissions on 23rd July 2020 while the Respondent filed Written Submissions on 13th August 2020.

4. Having considered the pleadings and submissions of the Appellant and the Respondent, the Tribunal finds the three issues for determination as follows.

a. Whether the Respondent’s decision to issue a Restoration Order issued to the Appellant was contrary to EMCA?

b. Whether the Respondent’s decision was in bad faith in breach of rules of Natural Justice and excess in its powers?

c. Who bears the costs of this Appeal?

5. The Tribunal under the same Statute can make the following orders as provided under Section 129(3) of EMCA as follows.

(3) Upon any appeal, the Tribunal may: -

a. Confirm, set aside, or vary the order or decision in question

b. Exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the Appeal is brought; or

c. Make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just. (Emphasis mine).

6. This Tribunal has considered the law regarding Restoration orders is found under Section 108(1) of EMCA which gives NEMA the mandate to issue and serve an Environmental Restoration Order on any person. Under the provisions of Section 108(4) (a), (b), (c) & (d), the order may require a person on whom it is served to-

(a) Take such action as will prevent the commencement of continuation or cause of pollution.

(b) Restore land, including the replacement of soil, the replanting of trees and other flora and the restoration as far as may be, of outstanding geological, archaeological, or historical features of the land or the area contiguous to the land or sea as may be specified in the order.

(c) Take such action to prevent the commencement or continuation or cause of environmental hazard.

(d) Cease to take any action which is causing or may contribute to causing pollution or an environmental hazard. (Our emphasis)

7. The law specifically provides on the contents of an Environmental Restoration order under Section 109(1) of EMCA as follows-

(a) the activity to which it relates.

(b) the person or persons to whom it is addressed.

(c) the time at which it comes into effect.

(d) the action which must be taken to remedy the harm to the environment and the time, being not more than thirty days or such further period as may be prescribed in the order within which the action must be taken.

(e) the powers of the Authority to enter any land and undertake the action specified in paragraph (d).

(f) the penalties which may be imposed if the action specified in paragraph (d) is not undertaken.

(g) the right of the person served with an environmental restoration order to appeal to the Tribunal against that order, except where the order is issued by a court of competent jurisdiction, in which case the right of appeal shall lie with superior courts.

8. The Tribunal finds it necessary to reproduce the Environment Restoration Order here.

“NEMA .5/11/VOL.111 31/7/2019

MR MUGO KARIUKI /NGUMI MUGO

NEXT TO MOGAS JOGOO ROAD, MAKADARA

NAIROBI

Re: Environmental Restoration Order for FREIGHT CONTAINER DEPOT NEXT TO MOGAS PETROL STATION IN MAKADARA AREA NAIROBI COUNTY

Following your concerns on pollution an inspection was conducted on 29th July 2019 by environmental inspectors from the national environment management authority at your premises in Makadara area off Jogoo road in Nairobi County. It was established that:

1. You are operating a shop selling used metal and other parts in a metallic container

2. You are selling 20 ft containers which are place on a road reserve and adjacent to the boundary wall of a residential plot pausing a risk to their safety

3. The boundary wall for your residential plot shares the same wall with a petrol station without any safety distance or any other measure put in place

4. Your container business has encroached into a road reserve

Your attention is drawn to Article 42 of the Constitution of Kenya 2010, which provides that every person has a right to a clean and healthy environment “, and Article 69 (2) which states that every person has a duty to cooperate with State organs and other persons to use of natural resources”. Further your attention is also drawn to Section 3(1) of the Environmental Management and Coordination Act 1999, which states that “every person in Kenya is entitled to a clean and healthy environment and has a duty to safeguard and enhance the environment

From the above you are in breach of the Constitution 2020 EMCA and other Natural Resource Management Laws. Consequently, pursuant to Section 108 of EMCA 1999 you are hereby directed to.

1. Cease immediatelyany further operations of the shop or selling 20ft and 40ft containers from this area.

2. Within 14 daysupon service of this Restoration Order, relocate all

3. At the end of the remedial works, invite Nema inspectors for inspection containers to a licensed containers holding site in accordance with standards and procedures prescribed by the County government of Nairobi.

4. Within 14 daysupon service of this restoration order removal all structures away from road reserves as may be prescribed by the Kenya Urban Roads authority and the county government of Nairobi.

5. Before reopeningas you submit a report demonstrating compliance of this restoration order to NEMA.

6. Within 7 daysupon service of this order, commit in writing that you shall comply with this order’.

If this Restoration order is not complied within the stipulated terms and time NEMA shall have no option other than to use all available legal means within its reach including court action to enforce this order.

Please note that Section 143 of the Environmental Management and coordination Act ,1999 states that any person who fails neglect or refuses to comply with an environmental restoration order made under this Act; comments an offence and shall on conviction, be liable to imprisonment for a term of not less than one year and not more than four years or to a fine of not less than two million shillings and not more than four million or both such fine and imprisonment.

You have a right to appeal this order to the National Environmental Tribunal

This Restoration Order supersedes any other restoration order that may have been issued by the Authority regarding this matter. By a copy of this order the relevant lead agencies are notified of their supportive safeguard requirements on this matter.

Signed

Mamo B. Mamo

Ag Director General”.

9. It is common ground that, NEMA has statutory authority under Section 108 of EMCA to issue the Environment Restoration Order. This Tribunal also finds that the Restoration Order satisfies the content requirements of Section 109 of NEMA as-

(a) It does specify the activity targeted as pollution.

(b) The Notice is address to The Proprietor Mr. Mugo Kariuki /Ngumi Mugo

(c) The Notice stipulates when the notice is to come into effect by requiring the Applicant to stop the activity within 14 days.

10. The Appellant Mr. Mugo alleges that the complaint on pollution was in respect of Mogas Petrol station which the residents complained of, and no resident has raised complaints about the Appellant’s business at all and on the other hand NEMA justifies the issuance of the Restoration Order due to the encroachment on a road reserve and boundary wall near a residential area.

11. The provisions of Section 109(4) of EMCA.

“An environmental restoration order shall continue to apply to the activity in respect of which it was served notwithstanding that it has been complied with.”

12. And Section 110(1) EMCA provides.

“At any time within twenty-one days after the service of an environmental restoration order a person upon whom the order has been served may, by giving reasons in writing, request the Authority to re-consider the order.”

13. These two provisions of the law, provide a channel by which one can raise questions on the procedure used or the decision reached by NEMA whose effect is to enhance the administrative fairness of the process because NEMA can re-look at its decisions at an early opportunity. The Appellant did not take steps to write to NEMA in line with these provisions stated in paragraph 14 of this judgment.

14. The Restoration Order of 31st July 2019 was issued pursuant to Section 108 of EMCA and although NEMA, by virtue of Section 109 (3) of EMCA, may seek and consider any technical, professional, and scientific advice which it considers to be desirable for a satisfactory decision to be made on an environmental Restoration Order, it is not bound to seek such advice and is it certainly not required to consult the lead agency. The prerogative is to be exercised by NEMA alone and not in consultation or conjunction with the lead agency. However, looking at the Restoration Order it is not clear what kind of pollution the neighbor to Mr. Mugo is complaining about and how the cessation of the operation of the shop and removal and relocation of the containers from the suit premises will reduce the pollution complained about.

15. The second issue relates to the fairness of the process followed to issue the Restoration Order and the Tribunal notes that although EMCA does not prescribe the procedure for issuing a Restoration Order, NEMA would be taking an administrative action and must observe the provisions of Article 47 of The Constitution on fair administrative action. Article 47(1) and 47(2) provides as follows; -

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.

(2) If a right or fundamental freedom of a Person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

16. Even without the requirements of the Constitution, there is an implied duty of fairness attached to all administrative acts. If one needs support for this proposition, then it is found in Misc. Civil Application No. 769 of 2004 Republic –Vs- Attorney General & Another Exparte Waswa & 2 Others [2005], KLR 280in which Nyamu & Ibrahim JJ (as they then were) said (at page 286)-

“We also associate ourselves with Lord Mustills holding in the case of Doody –Vs- The Home Secretary (HL 1993) that where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair.”

17. The Respondent NEMA had issued Restoration Order to Mr. Mugo and required the cessation of the shop activities immediately and other specified days for the other activities NEMA was dealing existing issue of a pollution of a petrol station since year 2009 and yet had not received any complaint about Mr. Mugo.

18. The Tribunal has reached a decision that NEMA acted not in conformity with EMCA and the Fair Administrative Act. From the Restoration Order it is not clear what kind of pollution is Mr. Mugo’s neighbour complaining about since the reasons for reallocation of the Appellant’s business are apparently on encroachment of the road reserve which NEMA is asking the Appellant Mr. mugo to liaise with Kenya Urban Road Authority and County Government for corrective actions and compliance with law and regulations.

19. In the case of Dobs Entertainment vs NEMA this Tribunal held that,

“A proponent served with a Restoration Order is bound to observe the contents of the order notwithstanding that it has been complied with or lifted following compliance, so the Appellant must adhere to the provisions regarding Noise and Excessive Vibrations, he cannot simply adhere to it in reaction to the order and then resume the very same breach once the order is lifted.“ An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation.” (Wade & Forsyth, “Administrative Law” 10th Edition at page 450). There could not have been a legitimate promise made by NEMA that the lifting order would insulate the Appellant from all future breaches in respect to the matters specified therein or generally.”

20. The last issue of costs, the Tribunal finds that all environmental matters are brought in public interest and each person bears the duty of ensuring that there is clean and healthy environment by ensuring there is intra generational equity. Therefore, it is wise to order that each party bears its own costs of this appeal.

21. The Tribunal now makes the following orders.

a. Appeal is allowed in part by setting aside the Restoration Order and directing the Appellant remove any structures metals and containers on a road reserve or on a boundary wall if any within thirty (30) days.

b. NEMA Environmental Inspectors to file a Compliance Report with the Tribunal within thirty (30) days from the date of delivery of this Judgment.

c. Each Party to bear its own costs.

DATED AND DELIVERD AT NAIROBI THIS 1ST DAY OF OCTOBER, 2021

MOHAMMED S. BALALA ……………………………………….…………………CHAIRPERSON

CHRISTINE MWIKALI KIPSANG’ …………………………………………. VICE-CHAIRPERSON

BAHATI MWAMUYE ….………………………………………………………………… MEMBER

WAITHAKA NGARUIYA …………….……………………………………………….…. MEMBER

KARIUKI MUIGUA ………………………………………………………………………… MEMBER