[2022] KENET 751 (KLR)

Gravillea Horizons Limited v National Environment Management Authority (Tribunal Appeal 4 of 2021) [2022] KENET 751 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KENET 751 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 4 of 2021

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

October 12, 2022

Between

Gravillea Horizons Limited

Appellant

and

National Environment Management Authority

Respondent

Judgment

1. The Appeal before the Tribunal was filed by the appellant on March 5, 2021 vide a Notice of Appeal dated March 4, 2021. The Appellant’s grievance is that the Respondent is dissatisfied with the Appellant’s stop order dated January 8, 2021 in which the Respondent communicated its decision to cancel its exemption letter issued on January 17, 2019 and stopping the construction works on L.R No. 7158/573.

2. According to the Appellant, the decision of the Respondent also declared that the intended development had negative impacts on the visual quality and aesthetics in the area, the project was out of character with the surrounding area based on zoning specifications thus directed the Appellant to revert the area where the house was being constructed back to an access road.

3. The summary of the grounds upon which the Appeal is premised are that:a.The Respondent granted the Appellant with a letter of exemption from applying for an EIA license thus the Respondent had a legitimate expectation to proceed with the construction works based on that exemption;b.The cancellation of the letter of exemption was not based on any sound environmental reasons, was based on ulterior motives as the Respondent was influenced by external undisclosed forces and in any event was made without jurisdiction;c.The decision to cancel the exemption is majorly based on the ground that the project is aesthetically undesirable yet that is the mandate of the County Government of Nairobi while the considerations on the Title are the domain of another organ of the government; andd.That the decision of the Respondent was made without observing the principles of natural justice and fair administration as provided in the Constitution of Kenya and the Fair Administrative Actions Act.

4. In response to the Appeal, the Respondent filed a Replying Affidavit sworn by Oras Muriithi in opposition to the Appeal. The Respondent opposed the Appeal on the following summarized grounds:a.It is indeed true that the Respondent issued an exemption to the Appellant on January 17, 2019 but that exemption was based on the information that was provided at the time of grant of the said exemption. During the application for the exemption, the Appellant did not disclose that there were alterations made on the plot and that it had initially been earmarked as an access road.b.On November 24, 2020, following complaints from neighbours, the Respondent conducted an inspection and issued an environmental restoration order against the Appellant for alteration of the original plan of the plot and commencement of construction works without obtaining an EIA licence after the alterations were made.c.Having established that the alteration of the original plans of the plot was not communicated to the Respondent at the time of Application of the exemption, the Appellant issued the Environmental Restoration Orders dated November 24, 2020 and December 16, 2020. d.The Appellant wrote to the Respondent on September 25, 2020 protesting the decision of November 24, 2020 and in an attempt to address those concerns, the Respondent conducted a further inspection on January 7, 2021 considering the letter by the Appellant dated November 25, 2021 and additional complaints by the neighbours.e.The additional concerns by the neighbours included the aesthetic value of the project, the project was out of character with its surroundings based on Spring Valley’s housing and zoning specifications, the Appellant’s piece of land had previously been designated as an access road with an acreage of 0. 05 hectares which space is too narrow to develop an dwelling unit in the area. The development would violate urban planning and urban renewal on protection of wayleaves, reserves, access roads and exits.f.The Respondent proceeded to prepare an inspection report on January 7, 2021 and based on that report, it proceeded to issue a stop order on January 8, 2021 which cancelled the exemption issued on January 17, 2019 and required the Appellant to revert the land to its intended usage as an access road.

The Appellant’s Case 5. The Appellant led evidence that it made a formal request for exemption and provided all the materials that were required of it during the application for the exemption. The Respondent had the opportunity to check and verify all the required documents or call for any further documents that they required but they never called for them. The fact that the project site used to be an access road eight years before the application of the exemption was not a relevant material for consideration during the exemption issued to the Appellant.

6. Having obtained the exemption from the Respondent, the Appellant proceeded to the City County of Nairobi and obtained approvals for the building plans for the project but on September 3, 2019 the Nairobi Metropolitan Services (NMS) moved to stop the project on the grounds that the site was an access road but this was lifted on November 10, 2020 thus allowing the project to proceed.

7. The Respondent’s witness also admitted that he was not involved in the process of the grant of the exemption but was involved in the inspection that led to the cancellation of the letter of exemption.

8. On the restoration order dated January 8, 2021, the Appellant argued that it was issued subsequent to site inspections conducted on November 24, 2020 and January 7, 2021 by Oras Muriithi and Zephania Ouma which were conducted without the Appellant’s knowledge. The actions by the Respondent to conduct the site visits without engaging the Appellant and using that information to make the decisions to cancel the exemption was done in violation of Article 47 of the Constitution of Kenya and the Fair Administrative Actions Act. The appellant relied on the case of Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board (2016) eKLR where the court held that,“Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution”

9. The Appellant further argued that the grant of the exemption gave it a legitimate expectation that it could proceed with the project thus obtained the relevant approvals and this created estoppel against the Respondent’s actions of revoking the exemption and cited the case of Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others [2013] eKLR.

10. On the question of whether the cancellation of the exemption was based on any environmental underpinnings, the Appellant held the position that there were no environmental issues disclosed by the Respondent as to warrant the decision that it made to cancel the exemption. The project under consideration is a residential house sought to be constructed in a neighbourhood utilized for residential purposes and there is no elaboration as to how the precautionary principle is applicable in this case.

The Respondent’s Case 11. The Respondent argued that the cancellation of the exemption issued to the Appellant was based on complaints from the neighbours. It further argued that the Appellant did not disclose that the project site was formerly used as an access road before the property was sub divided.

12. According to the Respondent the conversion of the former access road into a property for construction of a dwelling house falls under the second schedule of the Environmental Management and Co-ordination Act (EMCA) which classifies the undertaking as a high risk project that requires the submission of an EIA study report. There was no EIA report that was granted for the said conversion thus the Respondent moved under the precautionary principle to revoke the exemption previously issued for the project.

13. Further to the above, the Respondent argued that in submitting its documents for the grant of the exemption, the Appellant stated that it was going to construct on the proposed project as per the zoning policy of Nairobi City. It also argued that the approvals issued by the Nairobi County Government was for minor additions of internal wall/store/ironing room and not for a dwelling house which in any event was supposed to have commenced within 12 months of such an approval and completed within two years of such date failing which the approvals would be null and void. The Appellant has not renewed the approvals which lapsed in 2019 thus it is in contravention of the law.

14. In the opinion of the Respondent, its actions of revoking the exemption are well informed by section 9 ofEMCA which sets out the Respondent’s objective as being,“general supervision and co-ordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment”

15. The Respondent further cited its powers to issue Restoration Orders in accordance with section 108 of EMCA which provides as follows,1. Subject to any other provisions of this Act, the Authority may issue and serve on any person in respect of any matter relating to the management of the environment an order in this Part referred to as an environmental restoration order.2. An environmental restoration order issued under subsection (1) or section 111 shall be issued to—a.require the person on whom it is served to restore the environment as near as it may be to the state in which it was before the taking of the action which is the subject of the order;b.prevent the person on whom it is served from taking any action which would or is reasonably likely to cause harm to the environment;

16. The Respondent further stated that its decision was also based on the need for observance of the precautionary principle which flows from Principle 15 of the Rio Declaration and eventually for its place in EMCA.

17. On legitimate expectation, the Respondent argued that legitimate expectation can be overridden by public interest. The Respondent took the position that legitimate expectation can be overlooked where public interest and the circumstances at the time require a change in policy as to move away from past promises and practice. With this in mind, the Respondent defended its decision and argued that plot L.R 7158/573 should revert to an access road and an EIA study report be conducted if there is intention to convert the same into a plot.

Analysis And Determination 18. The Tribunal has considered the pleadings, evidence and submissions of the parties in the matter and find the following to be the main issues for consideration:a.Whether the Respondent violated the law in issuing the Restoration orders in contention; andb.What orders the Tribunal should make.

a.Whether the Respondent violated the law in issuing the Restoration orders in contention; 19. The Appellant is aggrieved by the decision of the Respondent dated January 8, 2021 on the grounds set out in the preceding parts of this judgment. The decision in contention seeks to cancel the exemption issued on January 17, 2019 which was a decision to exempt the Appellant from carrying out an Environmental Impact Assessment (EIA) process for the construction of a single dwelling residential house on plot L.RNo. 7158/573.

20. The grounds for cancellation of the exemption are that the project is out of character with the surrounding area based on the housing standards and zoning specifications, the property on which the project is designated is too narrow to develop an dwelling unit in that surrounding, urban planning and renewal requires protection of wayleaves, reserves, access roads, exits among others and that the proposed project will negatively impact the visual quality and aesthetics of the area.

21. Throughout the hearing of this suit and also in submissions, the question of the conversion of the access road into a plot has been quite prominent. The evidence that was availed to the Tribunal on the matter is that, initially, there was one piece of land known as L.R No. 7158/129 measuring 2. 613 acres. It was subsequently subdivided into four plots being: L.R 7158/327. L.R 7158/328, L.R 7158/329 and L.R7158/330. The access road for L.R 7158/329 and L.R 7158/330 was created from the main Gravillea Grove as the two plots front the said road while the access road for the access for L.R 7158/327 and L.R7158/328 was also created towards the same Gravillea Road near L.R 7158/330.

22. Subsequent to the above, plots L.R 7158/327 and L.R 7158/328 were amalgamated into a new plot and given the numberL.R 7158/561 and the access road was moved from the previous point to a different part near L.R 7158/329. The said L.R 7158/561 was thereafter subdivided in the year 2001 into 12 plots being plot numbers L.R 7158/562 toL.R 7158/572 whose access road touched the main Gravillea Road on the side of L.R 7158/329. The previous space used as an access road before the amalgamation and the subdivision was given a new plot number L.R 7158/573 which is the contested project site in this Appeal.

23. The Respondent argued that the conversion of the access road into a plot for construction of the dwelling house on plot number L.R 7158/573 ought not have been done without undertaking an EIA Study Report. The Tribunal observes that the access road in question was created by the owners of the sub divided plots which were later amalgamated and subdivided again. The directors of the Appellant created the access roads into their own properties then they decided to further amalgamate the plots and sub divide them according to their plans for the property and create an access road elsewhere.

24. The registered Deed plans and cadastral maps showing the numerous processes of amalgamation, sub division and creation of access roads were presented at the Tribunal and there was no evidence of any malfeasance of the processes followed by the relevant organs of government involved in the process. The dispute before the Tribunal is not one for the construction of an access road and in any event the Respondent has not presented any evidence on the environmental grievance associated with the shifting of the private access road by the owners of the property as to allow them to access their properties from a different direction as approved by the relevant organs of government.

25. The Tribunal finds that there is no requirement for the Appellant to obtain an EIA Licence to convert its own private access road to a plot upon meeting all the requirements as set down in the law by the relevant organs of government.

Was there a breach of legitimate expectations by the Respondent? 26. In Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others [2013] eKLR at paragraph 133 where the court held that,“At its core, and in its broad sense, the doctrine of legitimate expectation is said to arise out of a promise made by a public body or official which the person relying on anticipates will be fulfilled. It is also said to arise out of the existence of a repeated or regular practice of the public body or official which could reasonably be expected to continue. Essentially, once made, the promise or practice creates an estoppel against the public body or official, so that the person benefitting from the promise or practice would continue to so benefit, and that the promise or practice would not be withdrawn without due process or consultation. The Supreme Court of India in J.P. Bansal v State of Rajastan & Anor, Appeal (Civil) 5982 of 2001 observed as follows regarding the doctrine:“The basic principles in this branch relating to ‘legitimate expectation’ were enunciated by Lord Diplock in Council of Civil Service Unions and Others v Minister for the Civil Service(1985 AC 374(408-409)(commonly known as CCSU case). It was observed in that case that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either (i)he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn…”

27. It is common ground that the Respondent granted an exemption to the Appellant from obtaining an EIA licence for the construction of a dwelling house on plot number L.R 7158/573. The application for the exemption and the grant of the same were clear that it is being done for the purposes of construction of a dwelling house. It is crystal clear that the Appellant relied on the said exemption to undertake the project unless the exemption is revoked for good reasons after allowing the Appellant an opportunity to be heard. There is no doubt at all that the Appellant had legitimate expectation to undertake the project relying on the exemption issued by the Respondent unless the exemption is withdrawn in accordance with the law.

28. The Respondent argued that legitimate expectations cannot apply to it since its actions are informed by public interest as there were complaints from neighbours. The stance taken by the Respondent that it was acting in public interest shifted the burden on it to provide evidence on the public interest that it was acting upon as to revoke the exemption previously granted to the Appellant. The Respondent further stated that there was non-disclosure of the status of the property that it was previously used as an access road. The Appellant presented evidence of the information that it submitted to the Respondent when applying for the exemption and the Respondent faltered in identifying any gaps in the information that was presented to it at the time or as evidence to the Tribunal.

29. Indeed, the advantage given to the Appellant by way of the exemption could only be withdrawn on good reasons and upon according the Appellant an opportunity to be heard. The question of whether the Appellant was given an opportunity to be heard before withdrawal of the exemption shall be tackled in the subsequent parts of this judgment as the Tribunal addresses its mind on whether the due process as set out under Article 47 of the Constitution of Kenya and the Fair Administrative Actions Act was observed prior to making the disputed decision.

30. In Egal Mohamed Osman vs. Inspector General of Police & 3others [2015] eKLR at page 7 the Court at the time referred to The Management of Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, in which the Ugandan Supreme Court stated as follows regarding the rules of natural justice:“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”

31. In General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval in R vs. Vice ChancellorJKUAT Misc. Appl. No. 30 of 2007 that:“If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.”

32. In Ridge vs. Baldwin [1963] 2 All ER 66 at 81, Lord Reid expressed himself as follows:“Time and again in the cases I have cited it has been stated that a decision given without the principles of natural justice is void.”

33. This Tribunal inNET 30/2020 Mbesa Investments Limited vs NEMA and Another at paragraph 59 reiterated the importance accorded to the right to a fair hearing prior to making an administrative action by reiterating the decision of the superior court,“59. The right to be heard prior to taking an administrative action has been reiterated in various courts as a fundamental principle to be observed. In the case of Republic v National Police Service Commission Exparte Daniel Chacha Chacha [2016] eKLR the court held that,50. Procedural fairness is therefore now a Constitutional requirement in administrative action and the requirement goes further than the traditional meaning of the duty to afford one an opportunity of being heard. It is now clear that even in cases where there is no express requirement that a person be heard before a decision is made, the tribunal or authority entrusted with the mandate of making the decision must act fairly. In Judicial Service Commission vs. Mbalu Mutava & Another [2015] eKLR, Civil Appeal 52 of 2014 in which the Court of Appeal held that:“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”54. Therefore, the principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.”

34. The Respondent claims to have conducted a site inspection on November 24, 2020 and January 7, 2021 but there is no record of any invitation extended to the Appellant to avail itself either at the project site or at the Respondent’s offices to provide information about the alleged non-disclosure of the access road that was converted into a plot or any other matter that the Respondent claims to have led to the revocation of the exemption. The nature of the project and the dispute in the matter does not disclose any prejudice that the Respondent would suffer in execution of its duties if it observed the dictates of section 4 of the Fair Administrative Actions Act by according the Appellant an opportunity to be heard in answer to any complaints that may have been forwarded to the Respondent by the neighbours and for the Appellant to respond to the claims of non-disclosure. If there was any challenge to according the Appellant and opportunity for fair hearing of the matter between the parties then none was disclosed to the Tribunal.

35. The Respondent claims that its decision to revoke the exemption was also informed by complaints from neighbours at the project site. Unfortunately, there is no record of the said complaints or disclosure on who the complainants are and none of them was called as a witness at the hearing of this Appeal and there is no evidence that the Appellant was granted a fair hearing prior to the making of the disputed decision. The decision by the Respondent to revoke the exemption issued to the Appellant on January 17, 2019 was therefore made without according the Appellant the fair hearing required by the law thus renders itself for setting aside.

WHAT ORDERS SHOULD THE TRIBUNAL MAKE? 36. Having established that the Appellant had presented an application to the Respondent for exemption form applying for an EIA Licence and the same was granted as sought, the Tribunal finds that there was a legitimate expectation that the Appellant would be allowed to proceed with the project in accordance with the said exemption unless the same was withdrawn in accordance with the law. In this case, the exemption was cancelled without good reasons and without according the Appellant an opportunity to be heard which is a violation of Article 47 of the Constitution of Kenya and the Fair Administrative Actions Act.

37. The Tribunal has also established that there was no requirement for the Appellant to apply for an EIA licence to shift its own private access road within its own property from one place to the other and to convert the said access road to a plot for construction of a dwelling house.

Orders 38. The Notice of Appeal dated March 4, 2021 is allowed in the following terms:i.The Restoration order issued to the Appellant by the Respondent on January 8, 2021 is hereby set aside and/or cancelled.ii.The Respondent shall bear the costs of the Appeal.

DATED andDELIVERED at NAIROBI, This12THDAY ofOCTOBER 2022. Mohammed Balala …………………………………………………………………ChairpersonChristine Kipsang………….……………………………………….…………Vice ChairpersonBahati Mwamuye…………….………………………………………………………...MemberWaithaka Ngaruiya………………….………………………………………………....MemberKariuki Muigua…………..………………………………………………………………Member