[2021] KENET 630 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENT TRIBUNAL

AT NAIROBI

TRIBUNAL APPEAL NO. NET 47 OF 2020

LONDON DISTILLERS (K) LIMITED …………………….…………….....APPELLANT/APPLICANT

VERSUS

THE NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY….............1ST RESPONDENT

ERDEMANN PROPERTY LIMITED….…………………………...............................2ND RESPONDENT

KATRINA MANAGEMENT CONSULTANTS LIMITED….….................................3RD RESPONDENT

RULING ON THE 2ND RESPONDENT’S NOTICE OF PRELIMINARY OBJECTION DATED 23RD NOVEMBER 2020

1. On 23rd November 2020, the Appellant filed a Notice of Appeal dated 23rd November 2020 in which it sought orders as summarized below:

a. A declaration that the Environmental Impact Assessment Study Report that gave rise to the Environmental Impact Assessment License No. NEMA/EIA/PSL/9665 for the proposed gated residential development on Plot L.R No. 12581/163 which was the product of contempt of section 129(4) of the Environmental Management and Co-ordination Act (EMCA) ought to be declared a nullity;

b. A declaration that in receiving the EIA Study Report, the officers of the 1st Respondent acted in contempt of section 129(4) of EMCA;

c. An order for revocation of the EIA licence No. NEMA/EIA/PSL/9665; and

d. A declaration that the 3rd Respondent is not competent to be licensed as EIA experts.

2. The 2nd and 3rd Respondents filed Replying Affidavits to the Appeal addressing the factual matters raised in the Appeal. In addition to the Replying Affidavit, the 2nd Respondent filed a Notice of Preliminary Objection dated 23rd November 2020 in which it seeks the dismissal of the whole appeal in limine based on the following summarized grounds:

a. The entire Appeal is premised on section 129(4) of EMCA which provision is now suspended by the Constitutional Court at Nairobi in Petition E011 of 2020, Harpece General Contractors Limited vs National Environmental Management Authority (Petition 011 of 2020) in which the court issued conservatory orders on 30th September 2020 in which it ‘stayed, suspended and injuncted the National Environmental Tribunal or anyone from applying or in any way or howsoever asserting the applicability of section 129(4) of EMCA.’

b. The contested EIA licence was issued on 3rd November 2020 long after the orders of the court which were issued on 30th September 2020 hence the licence was issued when section 129(4) was already suspended.

c. The Tribunal in NET 26 of 2020 London Distillers (K) Limited vs The National Environment Management Authority, Katrina Management Consultants Limited, Paul Mungai Kimani, Charles Maina Muriuki and George Nyoro Waigi (NET 26 of 2020) dismissed the Appeal for lack of jurisdiciton as no EIA Licence had been issued by the 1st Respondent, capable of giving rise to an Appeal at the Tribunal; and

d. The Appellant’s Application in NET 26 of 2020 seeking to have the Respondents cited for contempt was never determined and the project proponents were never held in contempt.

3. The Notice of Preliminary Objection was disposed by way of written submissions which were filed by the 2nd Respondent and the Appellant and highlighted on 26th February 2021 by Prof. Ojienda (Sc) for the 2nd Respondent and Mr. Tiego for the Appellant.

4. In its submissions, the 2nd Respondent argues that the Appellant had first approached this Tribunal on 26th June 2020 through NET 26 of 2020 in which it challenged the 3rd Respondent’s capacity to carry out the EIA Study Report and sought to have it restrained from conducting the said study report. The 3rd Respondent herein who was named as the 2nd Respondent in NET 26 of 2020together with three other Respondents filed a Notice of Preliminary Objection in which they challenged the Tribunal’s jurisdiciton to hear and determine the Appeal before a decision to issue an EIA Licence could be made. On 7th September 2020, the Tribunal upheld the Preliminary Objection thus struck out the Appeal for lack of jurisidiciton on the part of the Tribunal.

5. According to the 2nd Respondent, no stop orders were issued by the Tribunal in NET 26/2020 and there was no determination of the contempt of court proceedings to form a basis for violation of any orders of the Tribunal or the law during the EIA process over the now disputed licence.

6. Further, Counsel submitted that section 129(4) was amended by section 29 of the Prevention of Torture Act 2017 but the amendments were stayed by the High CourtinOkiya Omtata v National Assembly of Kenya Petition 251 of 2017. While that Petition was pending, Parliament introduced a fresh amendment to Section 129(4) through the Statute Law (Miscellaneous Amendment) Act, No. 4 of 2018 but those amendments were equally stayed by the High Court in Petition 268 of 2017.

7. Once the court granted those conservatory orders, the position of the law reverted to section 129(4) of EMCA as it was before the amendments. Section 129(4) of EMCA granted an ‘automatic order of stay’, once an Appeal was filed at the Tribunal. Subsequent to the issuance of the conservatory orders, the High Court in Petition 011 of 2020 issued orders on 30th September 2020, in which it stayed the applicability of section 129(4) of EMCA pending the inter partes hearing of the said Application. It is this order that the 2nd Respondent relies upon to raise the P.O that the Appeal is purely anchored on a suspended section of the law hence ought to be struck out.

8. Lastly, Counsel for the 2nd Respondent submitted that the Tribunal does not have jurisdiction to determine the expertise of the 3rd Respondent to conduct EIA studies.

9. On his part, Counsel for the Appellant submitted that the 2nd Respondent does not have locus standi to challenge the applicability of section 129(4) having been barred by Hon. Mr. Justice Mbogo in Erderman Property Limited v National Environment Authority & Another (2020) eKLR, from filing any Application challenging the applicability of section 129(4) and no such leave has been sought at least not within the knowledge of the Appellant.

10. Further to this, the Appellant submitted that NET 26 of 2020 was filed on 26th June 2020 was served upon the 1st and 3rd Respondents notifying them of the automatic stop order pursuant to section 129(4) of EMCA. For that reason, the Appellant contends that the public consultative meeting held on 27th June 2020 could not have been valid as the same was held in contravention of the ‘automatic stop order’.

11. Counsel argued that section 129(4) was operational at the time when NET 26 of 2020 was filed on 26th June 2020 while the orders in Petition E011 of 2020 were issued on 30th September 2020. According to Mr.Tiego, the orders in Petition 011 of 2020 could not be retrospective as to apply to the automatic orders of status quo that kicked in on 26th June 2020 when he filed NET 26 of 2020. Further to this, Counsel for the 2nd Respondent argued that the conservatory orders in Petition E011 of 2020 were granted ex parte and the status of that order as at the date of filing the current Notice of Appeal on 23rd November 2020 was not known.

12. Lastly, the Appellant submitted that public participation is a major requirement under the Constitution of Kenya and applies not only to governance matters but also to protection of the environment as guaranteed under Articles 42 and 69 (1)(d) of the Constitution of Kenya, Section 58 of EMCA as well as Regulation 17 of the Environmental Impact Assessment and Audit Regulations.

THE ANALYSIS:

13. The Preliminary Objection before us is raised on the basis that the Tribunal does not have jurisdiciton to hear and determine the Appeal herein on the grounds that the whole Appeal is anchored on section 129(4) which according to the Appellant was suspended on 30th September 2020 whereas the EIA Licence subject of the Appeal was issued on 3rd November 2020.

14. We have perused all the pleadings and affidavits filed by the parties in this Appeal including the case law and submissions presented by counsel for the parties and thank them for their industry in the matter.

15. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Justice Nyarangi of the Court of Appeal held as follows:

'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

16. The Appellant appears to base its argument on the suspension of the applicability of section 129(4) of EMCA through conservatory orders issued on 30th September 2020 and framed as follows:

“THAT a Conservatory order be and is hereby issued staying, suspending and/or otherwise injuncting the National Environmental Tribunal or anyone claiming under its authority, from applying or in any way howsoever asserting the applicability of section 129(4), EMCA 1999 (now repealed) to confer an automatic status quo order, pending the inter partes hearing and determination of the Application herewith.”

17. We have perused the Notice of Appeal before us and established that the same discloses the following allegations: the contested EIA Licence was the product of violation of section 129(4) of EMCA, the Appellant is a project affected person and ought to have been consulted, the proposed project is within a mixed use zone and the EIA study report has not provided the proposed measures by the proponent to evaluate the anticipated impacts, a comprehensive baseline ambient air quality status of the area with respect to the industrial emissions therein has not been conducted, the EIA Licence ought not have been issued before the issuance of guidelines, policies and regulations by the relevant lead agencies as there exists long standing conflicts between the 2nd Respondent and the Appellant over the environmental use of the area where the two parties are situate and has given rise to at least 15 law suits spanning from this Tribunal to the Court of Appeal as well as the Departmental Committee of the National Assembly on Environment and Natural Resources.

18. The 2nd Respondent replied to the factual allegations in the Notice of Appeal by filing a Replying Affidavit sworn by John Rajwayi in his capacity as the Planning Manager of the 2nd Respondent.

19. In the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, the court held as follows:

“a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

20. The Preliminary Objection (P.O) raised by the 2nd Respondent seeks to strike out the whole appeal on the basis of the suspension of section 129(4) of EMCA but clearly, the Notice of Appeal raises more issues than what is alleged in the P.O. In any event, the Tribunal has not made any substantive orders in this Appeal or any orders at all pursuant to section 129(4) of EMCA.

21. The Tribunal cannot at this stage delve into the consequences of the conservatory orders that appear to have suspended applicability of section 129(4) of EMCA as those orders do not proscribe the Tribunal from hearing and determining any other disputes that may be filed by parties on any other matters that parties may file under EMCA. The Notice of Appeal as filed, contains numerous allegations to discredit the EIA License that was issued by the 1st Respondent. These issues traverse beyond section 129(4) of EMCA and no grounds have been provided to the Tribunal for us to deny the Appellant its right to ventilate those other claims that the Appellant alleges to have been a violation of its legal right in the EIA process. The merits of such claims shall be determined once the substance of the Appeal is heard by the Tribunal.

ORDER

22. The Notice of Preliminary Objection dated 23rd November 2020 is dismissed with costs to the Appellant.

DATEDandDELIVEREDat NAIROBI, This7th DAYofApril 2021.

Mohammed Balala ……………………………………………………………………………………… Chairperson

Christine Kipsang………….…….………………………………………………………………Vice Chairperson

Bahati Mwamuye…………….…………………………………………………………………………………Member

Waithaka Ngaruiya…………….………….………………………………………………………………….Member

Kariuki Muigua…………………..………………………………………………………………………………Member