[2024] KENET 478 (KLR)

Endesk Properties Limited v Director General National Environment Management Authority & another (Tribunal Appeal 12 of 2023) [2024] KENET 478 (KLR) (25 January 2024) (Judgment)

Neutral citation: [2024] KENET 478 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 12 of 2023

Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair, Duncan Kuria & Ronald Allamano, Members

January 25, 2024

Between

Endesk Properties Limited

Appellant

and

Director General National Environment Management Authority

1st Respondent

Kopoa Developers Limited

2nd Respondent

Judgment

A. Introduction 1. The Appellant moved the Honorable Tribunal by way of the Notice of Appeal and Grounds of Appeal both dated 26th March 2023. The Appellant is seeking the following reliefs:a.The Environment Impact Assessment License No. NEMA/EIA/PSL/23934 issued by the 1st Respondent on the 13th day of February 2023 to the 2nd Respondent be cancelled and revoked.b.A stop order be issued and directed by this Honorable Tribunal to the 2nd Respondent stopping any construction on land Parcel L.R. No. 209/23934/Riverside Gardens Off Riverside Drive in Nairobi County.c.The Appellant be awarded the costs of this Appeal.d.Any further and other reliefs that this Honorable Tribunal may deem fit.

2. In support of its case, the Appellant also filed its Witness Statement by Benson Namutali dated 20th March 2023 and its List and Bundle of Documents of even date.

3. In response the 2nd Respondent, filed Notice of Intention to Oppose Appeal, Statement of Facts of Appeal, Grounds of Opposition to the Appeal and the List and Bundle of Documents all dated 10th May 2023. The 2nd Respondent as well filed a witness statement in the name of Eric Moses Omondi dated 7th June 2023.

4. The appeal was heard via oral hearing whereby all parties presented their witnesses who gave oral evidence. Subsequently, the Tribunal gave directions on filing of submissions. Pursuant to this, the Appellant filed its submissions dated 20th October 2023 while the 2nd Respondent filed its submissions dated 2nd November 2023.

5. Subsequent to the filing of submissions by parties, the Appellant filed the application dated 9th November 2023 seeking that the Honorable Tribunal conduct a site visit on the ongoing construction by the 2nd Respondent. The Tribunal considered the application and, vide the Ruling delivered on 14th December 2023, allowed the site visit to be conducted on 11th January 2024. The Tribunal further ordered that any further construction on the suit property be stopped pending the delivery of this Judgement.

6. Consequent to the Ruling, the Tribunal visited the construction site on 11th January 2023.

B. Analysis And Determination 7. Upon considering all the materials filed by parties, the oral evidence, the submission by parties and the independent observation made by Tribunal during the site visit, the Tribunal has isolated the following issues for determination in this appeal:i.Whether there was adequate public participation before the issuance of the impugned EIA license.ii.Whether the 2nd Respondent’s proposed development is in line with the principles of sustainable development

Whether there was sufficient public participation before the issuance of the impugned EIA license. 8. It is urged on behalf of the Appellant that the Respondents failed to conduct proper public participation and consultative meetings before issuance of the impugned EIA license. It is further urged that the 2nd Respondent did not take into consideration the complaints and concerns raised by the Appellant before drafting and submitting the EIA study report.

9. Public participation can be defined as the process of engaging the public or a representative sector while developing laws and formulating policies or making decisions that affect them. The Tribunal draws inspiration from holding of the High Court in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, where a five-judge bench defined public participation as follows:‘Courts have also dealt with the concepts of public participation and stakeholders’ consultation or engagement. The High Court in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others [2014] eKLR while referring to the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) adopted the following definition of public participation: -“According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process.”Public participation therefore refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms. At times it may include consultations. The Black’s Law Dictionary 10th Edition defines ‘consultation’ as follows: -‘’The act of asking the advice or opinion of someone. A meeting in which parties consult or confer.’’

10. Article 10 of the Constitution imposes an obligation on the State, that is to say every State organ, State officer or public officer to facilitate a consultative process with the public in the State organs or State officers' processes, application of any law, public policy or decision making. Separately and regarding matters of environment, Article 69 of the Constitution also imposes parallel obligations on the state to encourage public participation in the management, protection, and conservation of the environment.

11. Principle 10 of the Rio Declaration on Environment and Development provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level and that each individual shall have the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Additionally, Principle 22 provides for the effective participation of indigenous people and their communities and other local communities in the achievement of sustainable development.

12. A five-judge bench of the High Court in the case of Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, succinctly explained the rationale of having public participation as a constitutional imperative as follows:‘It may be tempting to ask why the law and indeed the Constitution generally imposes this duty of public participation yet the State is generally a government for and by the people. The people elect their representative and also participate in the appointment of most, if not all public officers nowadays. The answer is, however, not very far. Our democracy contains both representative as well as participatory elements which are not mutually exclusive but supportive of one another. The support is obtained even from that singular individual.We also have no doubt that our local jurisprudence deals at length with why the Constitution and statute law have imposed the obligation of public participation in most spheres of governance and generally we take the view that it would be contrary to a person's dignity (see Article 28) to be denied this constitutional and statutory right of public participation.’ (emphasis ours)

13. Therefore, the importance of public participation cannot be gainsaid. In Matatiele Municipality v President of the Republic of South Africa (2) (CCT73/05A), the South African Constitutional Court stated as follows: -‘A commitment to a right to…public participation in governmental decision-making is derived not only from the belief that we improve the accuracy of decisions when we allow people to present their side of the story, but also from our sense that participation is necessary to preserve human dignity and self-respect…’

14. Similarly, the same Court in the case of Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 others, CCT 86/08 [2010] ZACC 5 discussed the importance of public participation as follows: -“.…engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands. In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.

15. Public participation is therefore regarded both as a proper and fair conduct of democratic government in public decision-making activities and as a fundamental component of the EIA process. Citizens have a right to be involved in the decision-making about the planned interventions that will affect their lives, and the opinions and views of experts should not be the sole consideration in decisions about planned interventions.

16. Indeed, looking at international law and comparative law and how this right of public participation has been contextualized, it is proper to conclude that public participation in environmental law issues and governance has risen to the level of a generally accepted rule of customary international law. Thus, in Kenya, in addition to the explicit constitutionalizing of this right in Articles 10, and 69 of our Constitution, the right to public participation in environmental governance is further entrenched under Article 2 (5) of the Constitution.

17. The Tribunal notes that Kenya has embraced the principles of sustainable development. These are not only captured in the Constitution but also in section 3(5) of the EMCA. EMCA defines sustainable development as development that meets the needs of the present generation without compromising the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystems. Section 3(5) of EMCA recognizes the principle of public participation in the development of policies, plans and processes for the management of the environment as one of the key principles of sustainable development.

18. Having opined as hereinabove, we are bound to review the evidence on record to determine whether there was sufficient public participation before the issuance of the EIA license. Towards that end, we are bound by the decision of the High Court in Mohamed Ali Baadi and others v Attorney General & 11 others, supra where a Five-Judge Bench laid down the test of determining the adequacy of public participation in environmental matters. The Court held as follows:‘The standard of ascertaining whether there is adequate public participation in environmental matters, in our view, is the reasonableness standard which must include compliance with prescribed statutory provisions as to public participation. This means, for example, if you do not comply with the set statutory provisions, then per se there is no adequate public participation. And, the question is not one of substantial compliance with statutory provisions but one of compliance.’

19. We must therefore review the evidence on record against the prescribed statutory provisions regarding public participation to determine whether there was compliance with the same.

20. Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 imposes an obligation on the proponents of any project in consultation with NEMA to seek views of persons who may be affected by the project. The said regulation states as follows: 17. Public participation(1)During the process of conducting an environmental impact assessment study under these Regulations, the proponent shall in consultation with the Authority, seek the views of persons who may be affected by the project.(2)In seeking the views of the public, after the approval of the project report by the Authority, the proponent shall—(a)publicize the project and its anticipated effects and benefits by—(i)posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project;(ii)publishing a notice on the proposed project for two successive weeks in a newspaper that has a nationwide circulation; and(iii)making an announcement of the notice in both official and local languages in a radio with a nationwide coverage for at least once a week for two consecutive weeks;(b)hold at least three public meetings with the affected parties and communities to explain the project and its effects, and to receive their oral or written comments;(c)ensure that appropriate notices are sent out at least one week prior to the meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties; and(d)ensure, in consultation with the Authority that a suitably qualified co-ordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority.

21. Additionally, under Regulations 21 and 22, prior to the making of any decision on the EIAS Report received by NEMA, NEMA is again required to involve the public. The Regulations specifically obligates NEMA to invite the public through the print media and in a prescribed format to make oral and written comments on the ESIA Report. Further, Regulation 20 obligates NEMA to submit a copy of the report to the relevant lead agencies for their comments.

22. Having reviewed the evidence on record, the Tribunal notes that the 2nd Respondent has provided minutes of public participation meetings held with the members of the public. In addition, it has provided evidence of completed questionnaires indicating feedback from various members of the public. The Appellant was also provided with a questionnaire, and it provided its views on the proposed project.

23. Additionally, the 2nd Respondent published an advertisement in the Standard Newspaper and the Star Newspaper inviting members of the public to give their views on the proposed project. A similar advertisement was run on KBC Radio. A further advertisement was published in the Kenya Gazette on 4th November 2022 inviting members of the public to submit their comments on the proposed project.

24. From the foregoing, the Tribunal finds that there was substantial compliance with the relevant legal framework on public participation. However, the Tribunal takes cognizant of the fact that the Respondent did not strictly adhere to the relevant statutory provisions. First, whereas Regulation 17(2)(b) requires the proponent of a project to hold at least three public meetings with the affected parties and communities, the Respondent has only produced evidence of two of such meetings.

25. Second, no evidence was placed before the Tribunal to show that the proponent of the proposed project publicised the project and its anticipated effects and benefits by posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project. This is a mandatory requirement under Regulation 17(2)(a)(i).

26. Third, under Regulation 17(2)(c), the proponent of a project is required to ensure that appropriate notices are sent out at least one week prior to the public meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties. Evidence of such notices was not availed.

27. Fourth, under Regulation17(2)(d) the proponent of a proposed project is mandated to ensure, in consultation with the Authority that a suitably qualified coordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority. There was no evidence placed before us to show that such a qualified coordinator was appointed.

28. Lastly, Regulation 20 places a mandatory obligation on NEMA to submit a copy of the environmental impact assessment study report to the relevant lead agencies for their comments. No evidence was placed before the Tribunal to show compliance with this provision.

29. Despite the above non-compliance, considering the nature of the proposed development vis a vis the extent of public participation conducted, the Tribunal holds that despite non-compliance with parts of the mandatory regulations there was adequate public participation before issuance of the impugned EIA license. We say this against the backdrop of the evidence evaluated and also the need to balance between protection of the environment and the ecosystem and sustainable development.

Whether the 2nd Respondent’s proposed development is in line with the principles of sustainable development. 30. It is the Appellant’s case that the character and nature of the 2nd Respondent’s project are in breach of zoning regulations, exposing the environment to harsh and destructive conditions. The Appellant further contends that the 2nd Respondent did not consider the strain which the proposed development will have on social amenities including inter alia the sewer system, water supply, access to road among others. Lastly, the Appellant argues that the mitigation measures proposed by the 2nd Respondent to mitigate the negative effects of the proposed development on the environment are highly unsatisfactory.

31. In response the 2nd Respondent states that it procured approvals in respect of the height and densities of the proposed development first from the Nairobi Metropolitan Services-Land and Physical Planning Department pursuant to the Physical and Land Use Planning Act and as well from the National Construction Authority pursuant to the National Construction Authority Act.

32. The 2nd Respondent, therefore, argues that the fact that it was issued with the said approvals is proof that the proposed development does not contravene the zoning regulations. The Tribunal is not convinced by this argument as a cursory glance of the development permission issued by the Nairobi Metropolitan Services shows that the same was issued subject to approval. As such NEMA, could still have refused to give the proposed development a green light despite the existence of the said approvals. Noting that under Section 129 of EMCA, the Tribunal has jurisdiction to hear appeals challenging any decision by NEMA, it is our finding the issue of the suitability of the nature and character of the proposed development in terms of plot density to the estimated plot ratio is properly before us.

33. Sustainable Development is one of the national values and principles of governance in the Constitution that bind all State organs, State officers, public officers and all persons. In its report, Our Common Future, the Brundtland Commission defined Sustainable development as development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

34. Under Section 2 of the Environmental and Management Co-ordination Act, sustainable development is defined as follows:“sustainable development” means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystems.”

35. In the Case Concerning the Gabcikovo-Nagymaros Project, (Hungary v Slovakia), 1997 WL 1168556 (ICJ), it was held as follows:“Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed [and] set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities, but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant. In particular, they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.”

36. Essentially, Sustainable development reaffirms the need for both development and environmental protection, and that neither can be neglected at the expense of the other. It reconciles human rights to development and protection of the environment by ensuring that the right to development resonates with the reasonable demands of environmental protection. As such, sustainable development demands a balance between development and environmental protection.

37. The Tribunal is guided by the holding of Angote J. in the case of John Muthui & 19 others v County Government of Kitui & 7 others [2020] eKLR, where the Learned Judge pronounced himself as follows with respect to sustainable development:‘The four (4) recurring elements that comprise the concept of ‘sustainable development’ is the need to preserve natural resources for the benefit of future generations (the principle of intergenerational equity); exploiting natural resources in a manner which is ‘sustainable’, ‘prudent’, ‘rational’, ‘wise’ or ‘appropriate’ (the principle of sustainable use); the ‘equitable’ use of natural resources, and the need to ensure that environmental considerations are integrated into economic and other development plans, programmes and projects, (the principle of integration).’

38. Having reviewed the evidence by the parties, and having visited the construction site, the Tribunal finds that the proposed development as presently designed does not meet the principles of sustainable development. The proposed high number of apartments to be constructed is bound to have negative effects on the environment surrounding the project site. Further, the development will contribute to negative pressure on the already overstretched social amenities including inter alia the sewer system, water supply, access to road among others. This will have the resultant effect of reducing the quality of life in the subject neighborhood.

39. We therefore find that the proposed development as presently designed does not amount to sustainable use of land. It is bound to deplete the carrying capacity of the supporting ecosystem. Sustainable use of natural resources is recognized under Article 69 of the Constitution, where the State, including the 1st Respondent, is obliged to ensure sustainable exploitation of natural resources including land.

40. The tribunal appreciates that the 2nd Respondent has the right to use its land in the manner it deems fit, including carrying out developments thereon, however the same is not absolute. It is subject to the right of others including the right to a clean and a healthy environment guaranteed under Article 42 of the Constitution. To this end, the Tribunal is guided by the holding of the Court in the case of Kiriinya M. Mwenda…Vs…Runda Water Ltd & Another (2014) eKLR, where the Court held that:-‘….I wish to point out that the petitioner’s right to own, use and develop his property is not absolute. He lives in a community of other property owners who have voluntarily agreed to live by certain rules to ensure that they maintain certain standards and quality of life by making provisions for certain services. The Petitioner as a resident of the area cannot insist on exercising his rights without regard for the rights of others and or benefit from services without paying for them’

41. Having found as hereinabove, the Tribunal notes that under Section 129(3) of EMCA, it is clothed with wide powers, including the power to exercise any of the powers that could have been exercised by the Authority. The Authority has the power to vary an EIA license. Consequently, we hereby vary the impugned EIA license to the extent that the proposed development should be capped at 12 floors from the ground so as to reduce the pressure on the surrounding environment and social amenities.

42. Accordingly, the Appellant’s appeal is hereby allowed in the following terms:a.The 2nd Respondent is hereby directed to cap the proposed development at 12 floors from the ground. The Environment Impact Assessment License No. NEMA/EIA/PSL/23934 issued by the 1st Respondent on the 13th day of February 2023 to the 2nd Respondent is varied accordingly;b.The 2nd Respondent is ordered to demolish any construction above the 12th floor from the ground floor in the event that the construction has exceed the stated number of floors from the ground;c.The 1st Respondent to supervise compliance with order (b) above with the assistance of Police officers attached to the 1st Respondent and the OCPD Kilimani area;d.Each party to bear their own costs.

DATED AND DELIVERED AT NAIROBI, THIS 25TH DAY OF JANUARY 2024EMMANUEL MUMIA - CHAIRMANWINNIE TSUMA - VICE-CHAIRDUNCAN KURIA - MEMBERRONALD ALLAMANO - MEMBER