[2018] KEELC 2247 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. PETITION NO. 36 OF 2012

FRANCIS NGIGI MACHARIA & 67 OTHERS...........PETITIONERS

VERSUS

NATIONAL ENVIRONMENT MANAGEMENT

AUTHORITY ..................................................................RESPONDENT

JUDGMENT

1. In their Petition dated 13th February, 2012, the Petitioners have averred that they are licensed sand transporters who are environmentally conscious; that they have been harvesting and transporting sand from Machakos for several years; that the Respondent, through one of its officials, issued an illegal ban on harvesting and transporting sand in Machakos County and that the said ban is being used by the Provincial Administration to harass them.

2. According to the Petitioners, the ban on sand harvesting in Machakos County has incapacitated them and infringed on their constitutional rights to own and acquire property from the County and that the ban was issued purely on political grounds and not by environmental concerns. It is the Petitioners’ case that their rights have been denied and violated by the Respondent and their economic survival is threatened.

3. The Petitioners have sought for a declaration that the ban on sand harvesting and transportation in Machakos County was unconstitutional and that this court should revoke it. The Petitioners are also claiming for damages and the costs of the Petition.

4. In response to the Petition, the Environment officer in charge of Machakos County deponed that a meeting was called by the Regional Commissioner to address critical issues in Machakos County, sand harvesting being one of them; that the said meeting only advised the chairs of the various District Environment Committees to use their powers under the law to restore sanity in regard to sand harvesting and that he convened a District Environment Committee on 16th February, 2012 to address the issue of sand harvesting.

5. According to the Respondent’s representative, it was agreed in the said meeting that there should be a temporary suspension of sand harvesting activities in Yatta and Masinga and that the purpose of the suspension was to midstream registration of all sand harvesters and transporters in the two regions.

6. The Respondent’s case is that most harvesting of sand in Yatta and Masinga is done at illegal site; that those sites are supposed to go through Environmental Impact Assessments and that that is what the Technical Sand Harvesting Committee has been doing since 21st February, 2012.

7. The District Environment Officer finally deponed that complaint sand harvesting sites are those that have an Environmental Impact Assessment approval and that the ban on illegal sand harvesting was legally issued by the District Environment Committee of Yatta and Masinga.

8. The Petition proceeded by way of written submissions. The Petitioners’ counsel submitted that the Petitioners are licensed transporters owning road worthy lorries and transporting sand within and from Machakos County; that the ban on sand harvesting was issued vide a newspaper caption as opposed to a gazette notice and that the Respondent did not comply with the law while imposing the said ban on sand harvesting and transportation.

9. The Respondent’s counsel submitted that Section 30 of the Environmental Management and Co-ordination Act mandates the District Environment Committees to be responsible for the proper management of the environment within their area of jurisdiction; that it is the District Environment Committee that issued a ban on sand harvesting because most of the sites were illegal and that the Petitioners are not sand harvesting dealers.

10. The 67 Petitioners are seeking for a declaration that the ban on sand harvesting by the Respondent in Machakos County was unconstitutional and an affront to their right to acquire property. The Petitioners are also seeking for damages that arose due to the said ban.

11. In support of the Petition, the Petitioners alleged that they have been licensed to harvest and transport sand within Machakos County and that they should be allowed to continue harvesting the sand. The Petitioners annexed on their joint Affidavit documents showing that they have been licensed to harvest and transport sand within and outside the County.

12. The 67 Petitioners annexed three (3) copies of“Form 2”,which is the approval to transport sand, issued by the District Environment officer, Machakos. The said three approvals were granted to Peter Gitau Ngugi, Elshadai and Sango Transporters in the year 2011. The approvals allowed the named three persons to transport sand from National Environment Management Authority (NEMA) licensed sites and they were to adhere to the National Sand Harvesting Guidelines.

13. The Petitioners have not placed any evidence before the court to show that the Respondent approved them not only to transport sand, but also to harvest the commodity. The contention by the Petitioners that they have been licensed by the Respondent to carry on the business of sand harvesting is therefore not supported by any document.

14. Even if the Petitioners were licensed to harvest and transport sand, which they were not, Section 30 of the Environmental Management and Co-ordination Act (EMCA) provides that the County Environment Committee shall be responsible for the proper management of the environment within the county for which it is appointed. The said management includes monitoring and controlling the way natural resources are exploited to ensure that the exploitation of such resources is done sustainably and in accordance with the law.

15. Section 58 of the Environmental Management and Co-ordination Act (EMCA) also provides that notwithstanding any approval, permit or license granted under the Act, any proponent of a project specified in Schedule 2 shall, before commencing such a project, undertake a full Environmental Impact Assessment Study and submit an Environmental Impact Assessment Study report to the Respondent prior to being issued with a license.

16. Sand harvesting is a project which is usually located within rivers and requires an Environmental Impact Assessment Study to be undertaken before any license can issue. In view of the fact that the Petitioners did not produce any approved Environmental Impact Assessment (EIA) study report, they cannot claim that the harvesting of sand that they were undertaking was being undertaken on licensed sites.

17. Consequently, it is the finding of this court that it is the mandate of the Respondent, pursuant to Article 69 of the Constitution and Section 30 of the Environmental Management and Co-ordination Act (EMCA) to ensure that the natural resources of this country, including sand, are conserved and are sustainably exploited. In the absence of the approved Environmental Impact Assessment (EIA) study reports in respect of the purported sand harvesting sites that the Petitioners claim they are entitled to, I find that the Petition before me lacks merit. The Petition dated 13th February, 2012 is therefore dismissed with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF JULY, 2018.

O.A. ANGOTE

JUDGE