[2022] KENET 714 (KLR)

Erdermann Property Limited v National Environment Management Authority & 2 others (Tribunal Appeal 44 of 2020) [2022] KENET 714 (KLR) (Civ) (28 September 2022) (Ruling)

Neutral citation: [2022] KENET 714 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 44 of 2020

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

September 28, 2022

Between

Erdermann Property Limited

Appellant

and

National Environment Management Authority

1st Respondent

London Distillers (K) Limited

2nd Respondent

Galot Industries Limited

3rd Respondent

Ruling

1. The appellant filed this appeal vide a notice of appeal dated November 6, 2020 and filed before the tribunal on a similar date under rule 4 (1) of the National Environmental Tribunal Procedure Rules, 2003, sections 126 and 129 of the Environmental Management and Coordination Act, 1999, article 42, 69 and 70 of the Constitution of Kenya 2010.

2. The notice of appeal is accompanied by a detailed statement of the appellant’s grounds of appeal which the tribunal summarizes hereunder:-a.The national assembly’s departmental committee on environment and natural resources has variously previously conducted enquiries into allegations of pollution as against the 2nd and 3rd respondent’s industrial undertaking within the subject area, and after finding that there was need for immediate remedial action on the 2nd and 3rd respondent’s part – directed the 1st respondent to provide oversight and ensure harmonious co-existence between various entities who are currently using the subject area as mixed zone involving light industrial, residential and commercial as well as agricultural.b.Some of the directions, resolutions and lawful orders from the national assembly’s report included requiring the interested party to develop the “Mavoko Integrated Strategic Urban Development Plan No MKS 8/2020/02” completed on September 24, 2020, ascertaining the various land uses in the subject area and acknowledging the mixed user.c.That despite the national assembly’s recommendations and the object thereof being time-bound the 1st respondent has not taken steps that will make it possible for the appellant to enjoy its property rights in developing and constructing the residential development dubbed GWG4 under NEMA license NEMA/EIAPSL/9665, as the 2nd and 3rd respondents have continued to conduct their undertakings in a manner that compromises the fundamental rights and freedoms of the appellant and others but also indicative of the 1st respondent’s dereliction of constitutional and statutory duty.d.That in applying for and securing the NEMA license No NEMA/EIAPSL/9665 the appellant lawfully engaged all project affected persons, and conducted an in-depth EIA study which discerned all the emergent socio-economic and environmental impact of the proposed development as well potential negative impacts and challenges in the execution of the project.e.That all the state agencies serving as lead agencies, have affirmed the 2nd and 3rd respondent’s violation of the quality standards under the EMCA, enjoining them to remedial measures in disposal of their waste and refuse.f.That the interested party is tasked under schedule 4 of the Constitution to manage refuse removal, refuse dumps and solid waste disposal. That it is also responsible for controlling air and noise pollution as well as other public nuisances. Additionally, it manages county planning and development, and despite authorizing the subject area as a mixed-use area in liaison with the 1st respondent; they have failed to restrain the 2nd and 3rd respondents from the incessant and unmerited attacks directed at the person of the appellant.g.That despite the appellant having raised a lawful complaint with the 1st respondent upon realization of the unlawful, illegal and irregularly run dumpsite/ land fill, on the property adjacent to the site for the GWG4 developed under EIA license NEMA/EIAPSL/9665, no meaningful effort has been made to require compliance nor resolve the lawful demands made as against the operation of the unlawful, illegal and irregularly run dumpsite/ landfill by the 2nd and 3rd respondent, hence need for the appeal herein to curb and curtail any such negative impact that the unlawful operations of the 2nd and 3rd respondents would have on the project.h.That other government agencies being displeased by the unabated unlawful conduct by the 2nd and 3rd respondents have equally issued adverse notices as against the 2nd and 3rd respondents which, though the law anticipates enforcement by the 1st respondent, remain unenforced.i.That the 1st respondent has at all material times been aware of the subject polluting activities and unlawfully run waste dumpsite/ landfill.j.That despite the clear unlawful conduct of the 2nd and 3rd respondents, and the grim impact of the misconduct, the 1st respondent resorted to issuance of nominal notices to the 2nd and 3rd respondents, with no real resolve to implement its statutory duty owed to the appellant in as far as it now requires to exploit its property rights in respect of property LR No 12581/163, the subject site for GWG 4. k.That on account of the failure and/or refusal by the 1st respondent to adequately and decisively act against the 2nd and 3rd respondents, grave instances of environmental pollution continue to be undertaken unabated by the 2nd and 3rd respondents’ contrary toEMCA and the Constitution.l.That the unlawful and illegal conduct by the 2nd and 3rd respondents warrants the grant of the orders sought.

3. The appellant seeks the following reliefs:-a.An order directed at the 1st respondent to protect the appellant’s (as well as that of its workers and future residents’) right to property, right to life, right to health and right to a clean and healthy environment by instituting appropriate, immediate and effective enforcement action against the 2nd and 3rd respondents.b.An order directed at the 2nd and 3rd respondents to bar them from instituting an appeal or other proceedings before the Hon Tribunal or any other court, either in their name or through any subsidiary, proxy or assign claiming under or through them as the appellants against the EIA license No NEMA/ EIAPSL/9665 dated November 3, 2020 without the prior leave of the Hon Tribunal and for good probable cause.c.An order directed at the 2nd and 3rd respondents to immediately cease and desist from any further conduct of their industrial undertaking in a manner that continues to illegally discharge and/ or pollute specifically in respect of discharge and disposal of waste and particulate matter in violation of the law;d.An order directed at the 1st respondent to supervise the 2nd and 3rd respondent in restoring the polluted environment to as near a state as it was before the impugned polluting activities: immediately nonetheless within such timelines as the Hon Tribunal may impose-and a compliance report be furnished with the Hon Tribunal within forty-five days from the date of the judgment.e.A closure order as against the 2nd respondent should they fail to comply with theHon Tribunal’s order under b, c and d above;f.An order for costs on a full indemnity basis; andg.Any such further order as the Hon Tribunal may deem appropriate and fit.

4. The 2nd and 3rd respondents filed a notice of preliminary objection dated November 18, 2020 seeking to raise a preliminary objection on a point of law under section 5 of the Civil Procedure Act cap 21 laws of Kenya on the ground that:-a.The jurisdiction of this tribunal to entertain an appeal is statutorily underpinned by section 129 (1) and (2) of the Environment Management and Co-ordination Act No 8 of 1999 and exclusively limited only to the decisions of the 1st respondent.b.No decision capable of being challenged by virtue of section 129 (1) and (2) of the Environment Management and Co-ordination Act No 8 of 1999 has been made and or produced before this tribunal and hence this tribunal lacks the jurisdiction to entertain, try and or determine the issues raised thereunder.c.This honourable tribunal has no jurisdiction by virtue articles 70;,162 (2) (b) and 165 of the Constitution of Kenya 2010 as read with section 3 of the Environment Management and Co-ordination Actto entertain, try and or determine any issue touching on the alleged environmental pollution which is within the exclusive remit of the jurisdiction of the Environment and Land Court.d.This honourable tribunal has no jurisdiction to entertain, try and or determine questions as to the allegation of infringement of the appellant’s rights and protection under the Constitution of Kenya 2010. e.This honourable tribunal has no jurisdiction to limit the 2nd and 3rd respondents’ constitutional space so as to curtail its rights to challenge the blanket decisions of the 1st respondent as sought.f.The appellant who is behind several appeals pending before this honourable tribunal has it (sic) with soiled hands and in blatant abuse of its processes for extraneous purposes.

5. On December 1, 2020, the 1st defendant also filed its grounds of opposition dated December 1, 2020 raising a preliminary objection on points of law as stipulated under section 5 of the Civil Procedure Act cap 21 laws of Kenya on the grounds that:-a.The 1st respondent is particularly opposed to prayers 3 and 6 of the notice of motion file by the appellants as the management of refuse dumps including disposal and clearance of refuse dumps and waste is a function devolved by the Constitution of Kenya, to the counties – schedule 4 part 2 and is thus not a function of the 1st respondent.b.That this honourable tribunal should not be asked to discharge an unlawful function or issue orders that are contrary to the provisions of the Constitution.c.That prayers 3 and 6 are framed not meritoriously, but with a view of breathing life into the appeal as they are the only prayers that touch on the 1st respondent – a mandatory party in all NET appeals.d.That peculiarly, the Machakos county government is listed as an interested party to this appeal.

Submissions By The Parties Respondents’ submissions 6. On December 1, 2020, the 1st respondent filed its written submissions in respect of the notice of motion dated November 6, 2020.

7. The 1st respondent submitted that the Constitution of Kenya at schedule 4 part 2, paragraph 2 provides that refuse removal, refuse dumps and solid waste disposal are county health services and are a function of county governments and not the national government where the 1st respondent falls. They cite the cases of Halai Concrete Quarries & 4 others v County Government of Machakos & 4 others; Kenya Power & Lighting Co & another (interested parties)[2020] eKLR andCastle Rock Gardens Management Limited v Attorney General & 4 others [2018] eKLR.

8. In conclusion, the 1st respondent submitted that the applicant has not demonstrated any effort at drawing the attention of the county government of Machakos to address its complaints on the alleged solid waste dumping and that the applicant has also not demonstrated that it had formally requested the 1st respondent to attend to the complaint on solid waste dumping before filing this appeal. On this basis the 1st respondent submits that prayers 3 and 6 of the notice of motion must fail and consequently, the notice of motion application should be dismissed.

9. The 2nd and 3rd respondents submitted that this tribunal lacks jurisdiction to entertain the appeal as the applicant is not contesting any decision made by NEMA, but instead the appellant is contesting the alleged substandard, dangerous and unlawful waste disposal dumpsite/ landfill. To advance their argument on the lack of jurisdiction, the 2nd and 3rd respondents cite the cases of Republic v Karisa Chengo & 2 others (2017) eKLR, Samuel Kamau Macharia v Kenya Commercial Bank & 2 others (2012) eKLR , The Owners of Motor Vessel Lilian “S” v Caltex Oil Kenya Ltd [1989] KLR 1 and Moi’s Bridge Quarry Company Limited v National Environment Tribunal & 3 others [2017]eKLR.

10. The 2nd and 3rd respondents submitted that the allegations made by the applicant should have been first tabled before NEMA through its public complaints committee and that the reliefs sought by the appellant, both at the interlocutory and final stages, can be granted either by the 1st respondent (NEMA) or the Environment and Land Court and not this tribunal.

11. The 2nd and 3rd respondent further submitted that the subject suit herein relates to the violation of the right to a clean and healthy environment as provided by the Constitution and that if a person alleges that the right to a clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened, in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available that person may on his behalf or on behalf of a group or class of persons, members of an association or in the public interest may apply to the Environment and Land Court for redress and the Environment and Land Court may make such orders, issue such writs or give such directions as it may deem appropriate.

12. The 2nd and 3rd respondents further submitted that both the Environment Management and Coordination Actand the Environment and Land Court Act embrace the precautionary principle and that is why both laws envisage a situation where any person alleging contravention of environmental laws is allowed to come to court for redress.

Issues For Determination 13. Having considered the appellant’s notice of motion, the notice of appeal and the appeal all dated November 6, 2020; the 2nd and 3rd respondent’s notice of preliminary objection dated November 18, 2020; the 1st respondent’s grounds of opposition dated December 1, 2020; the 1st respondent’s written submissions dated December 1, 2020 in respect of its preliminary objection and the 2nd and 3rd respondents’ written submissions in respect of the preliminary objections raised by the respondents, the tribunal would like to determine whether it has jurisdiction to hear and determine the appellant’s appeal before it take any further step in these proceedings.

14. Jurisdiction is the corner stone of any judicial proceedings. The question of a trbunal's jurisdiction to hear and determine a dispute is not novel. It has been adjudicated and determined over and over again. Recently, the Supreme Court in the case of Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [ 2012] eKLR held:-”A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. The issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.Where the constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can parliament confer jurisdiction upon a court of law beyond the scope defined by the constitution. Where the constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

15. This tribunal NET appeal No 2 of 2018- Albert Mumma in his Capacity as Chairman Langata District Association v Director General - National Environmental Management Authority [NEMA] & 2 others; Seventh Day Adventist Church (EA) Limited (interested party) held that:“It is established practice that where the jurisdiction of the tribunal is called into question then the first order of business is for the tribunal to make a determination on that issue before rendering its decision on the main points of the appeal.”

16. This tribunal is established by the Environment Management and Co-ordination Act 1999 as revised in 2019 (herein after EMCA) most specifically section 125 which provides for the establishment of the National Environment Tribunal.

17. Section 129 EMCA provides for appeals to the tribunal and states as follows:-“(1) Any person who is aggrieved by:-(a)The grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit. Under this Act or its regulations;(b)The imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations;(c)The revocation, suspension or violation of the person’s licence under this Act or its regulations;(d)The amount or money required to paid as a fee under this Act or its regulations;(e)The imposition against the person of an environmental restoration order or environmental improvement order by the authority under this act or its regulations, may within sixty days after the occurrence of the event against which the person is dissatisfied, appeal to the tribunal in such manner as may be prescribed by the tribunal.(2) Unless otherwise expressly provides in this Act, where this Act empowers the director-general, the authority or committees of the authority or its agents to make decisions, such decisions may be subject to an appeal to the tribunal in accordance with such procedures as may be established by the tribunal for that purpose”

18. As stipulated from the foregoing provision, this tribunal has a very limited scope of jurisdiction. Its scope is limited to hear and determine appeals emanating from the decisions made by the National Environment Management Authority or in the alternative to hear and determine appeals from decisions made by the director-general, the authority, committees of the authority or agents who are authorized under the provisions of EMCA to make decisions. This tribunal cannot go beyond and above the jurisdiction vested upon it by statute. As the tribunal has already noted from the above decision of the Supreme Court of Kenya, “where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. ( emphasis added).

19. This tribunal has read the appellant’s appeal and its application, there is no decision made byNEMA or any decision whatsoever made by the director-general, the authority, committees of the authority or agents that are being challenged by the appellant.

20. Infact, the crux of the application and the appeal revolves around the alleged unlawful conduct of the respondents which according to the applicant/ appellant endangers its property rights.

21. In the eyes of this tribunal the contents of the application and the appeal filed by the appellant on November 6, 2020 entirely revolves around the appellant’s rights as envisaged in the Constitution. The appellant has not appealed against any decision by NEMA or other entities that have been given authority under EMCA.

22. It is now settled that where parliament has prescribed a mechanism by which certain disputes are to be resolved, save in exceptional circumstances, it is improper for a party to bypass that prescribed statutory process and seek relief elsewhere as has been held by the Court of Appeal, in the case ofSpeaker of National Assembly v Njenga Karume (2008) 1 KLR 425 that:-“in our view there is consideration merit….that where there is clear procedure for the redress of any particular grievance prescribed by the constitution or an act of parliament, that procedure should be followed” (emphasis added)

23. The tribunal finds that it does not have jurisdiction to entertain the appellant’s appeal and its application.

Orders 24. For the above reasons, the tribunal makes the following orders:a. The 2nd and 3rd respondents’ preliminary objections are hereby allowed;b. The appellant’s appeal and its application dated November 6, 2020 are hereby dismissed; andc. Each party to bear its own costs.The parties’ attention is drawn to the provisions of section 31, 32, 33, 34 and 130 of the Environmental Management and Coordination Act 1999 as revised in 2019.

DATED AT NAIROBI THIS 28TH DAY OF SEPTEMBER 2022MOHAMMED S BALALA…………………………CHAIRPERSONCHRISTINE KIPSANG………………………………………MEMBERBAHATI MWAMUYE………………………………………………MEMBERWAITHAKA NGARUIYA………………………………………MEMBERKARIUKI MUIGUA………………………………………………MEMBER