[2022] KEELC 196 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

PETITION NO 8 OF 2020

IN THE MATTER OF:

ARTICLE 2(1), 3(1), 10(1), (2), A, B & C, 27 & 73 OF THE CONSTITUTION AND IN

THE MATTER OF ARTICLE 20 (1), (2), (3) A & B, ARTICLE 21(1), 22(1),

(2) & 23 (1) & (3) A, B, C, D & E OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF:

ALLEGED CONTRAVENTION AND VIOLATION OF

THE FUNDAMENTAL RIGHTS AND FREEDOMS OF

INDIVIDUALS AS ENSHRINED UNDER ARTICLE

27, 28, 32, 40, 42, 43, 47 AND 70 OF THE

CONSTITUTION OF KENYA

AND

IN THE MATTER OF:

THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT

AND

IN THE MATTER OF:

THE ENVIRONMENTAL IMPACT ASSESSMENT AND AUDIT REGULATIONS, 2003

AND

IN THE MATTER OF:

SECTION 41 OF THE PHYSICAL PLANNING ACT CAP 286 OF THE LAWS OF KENYA (Repealed)

BETWEEN

LUCY KINUTHIA ......................................... 1ST PETITIONER/APPLICANT

FELISTA MUITE ............................................2ND PETITIONER/APPLICANT

ZIPPORAH GAITHO..................................... 3RD PETITIONER/APPLICANT

ANNE GITAU ..................................................4TH PETITIONER/APPLICANT

LILIAN GAKURE ...........................................5TH PETITIONER/APPLICANT

SUSAN NDUTA .............................................. 6TH PETITIONER/APPLICANT

BERTHA NJERI .............................................. 7TH PETITIONER/APPLICANT

MILKAH MUGO ............................................. 8TH PETITIONER/APPLICANT

THERESIA GACHUMBI ................................ 9TH PETITIONER/APPLICANT

BERNEDETTE KINUTHIA ......................... 10TH PETITIONER/APPLICANT

GRACE MUGWE ...........................................11TH PETITIONER/APPLICANT

WANJIRU MICHOBO ...................................12TH PETITIONER/APPLICANT

EDITH BARE.................................................. 13TH PETITIONER/APPLICANT

SUSAN W. KIHUMBU .................................. 14TH PETITIONER/APPLICANT

JANE NGIGE .................................................15TH PETITIONER/APPLICANT

GABRIELLA KARANJA ............................. 16TH PETITIONER/APPLICANT

MARY KARUGIU ......................................... 17TH PETITIONER/APPLICANT

FAITH MWANGI ..........................................18TH PETITIONER/APPLICANT

LEAH WAKABA ........................................... 19TH PETITIONER/APPLICANT

JULIET KINUTHIA ...................................... 20TH PETITIONER/APPLICANT

MAGDALENE KIBURI..................................21ST PETITIONER/APPLICANT

PASQUELINA MAINA.................................. 22ND PETITIONER/APPLICANT

JEDIDA KAHURA .........................................23RD PETITIONER/APPLICANT

FLORENCE KENI......................................... 24TH PETITIONER/APPLICANT

GRACE WAWERU........................................ 25TH PETITIONER/APPLICANT

LEAH MUGUKU...........................................26TH PETITIONER/APPLICANT

ELIZABETH WAIRIMU...............................27TH PETITIONER/APPLICANT

EUNICE KAMAU .........................................28TH PETITIONER/APPLICANT

JANE WAWERU .......................................... 29TH PETITIONER/APPLICANT

JOSEPHINE NJOROGE ..............................30TH PETITIONER/APPLICANT

MERCY KAMANDE...................................... 31ST PETITIONER/APPLICANT

BEATRICE NJOGU ..................................... 32ND PETITIONER/APPLICANT

RUTH MATHU................................................33RD PETITIONER/APPLICANT

GRACE NDUNGU ........................................34TH PETITIONER/APPLICANT

OLIVE KIMANI.............................................35TH PETITIONER/APPLICANT

SARAH NDUMBI...........................................36TH PETITIONER/APPLICANT

MONICA KIMEMIA.....................................37TH PETITIONER/APPLICANT

SUSAN KIRIKO.............................................38TH PETITIONER/APPLICANT

SERAH NGUGI..............................................39TH PETITIONER/APPLICANT

SALOME KURIA.......................................... 40TH PETITIONER/APPLICANT

GRACE KIRUMBA........................................41ST PETITIONER/APPLICANT

MARGRET MBURU......................................42ND PETITIONER/APPLICANT

MARY KIBE ...................................................43RD PETITIONER/APPLICANT

LYDIA MAINA ..............................................44TH PETITIONER/APPLICANT

MERCY KIOGORA ...................................... 45TH PETITIONER/APPLICANT

ANNE WAHU GITHIEYA............................. 46TH PETITIONER/APPLICANT

ANNE JULIA KARIUKI .............................. 47TH PETITIONER/APPLICANT

TABITHA KIBERA..........................................48TH PETITIONER/APPLICANT

(members of the Magoko Ladies’Group)

VS

GEORGE MWANGI MUNYUA ............................................1ST RESPONDENT

NATIONAL ENVIRONMENTAL

MANAGEMENT AUTHORITY..........................................2ND RESPONDENT

THE COUNTY GOVERNMENT OF KIAMBU...............3RD RESPONDENT

RULING

1. The Petitioner/Applicant filed the instant Notice of Motion Application dated 26th August 2020 for orders THAT;

a. Spent.

b. Spent.

c. Spent.

d. THAT pending the hearing of the Petition herein, there be Conservatory Order suspending the construction of the Development by the 1st Respondent on Land parcel LR No. 4871/120 located in Kikuyu Sub-county within Kiambu County being undertaken on the strength of EIA Licence No. NEMA/EIA/PSL/8411 issued on 21st August, 2019 issued by the 2nd Respondent and the Notification of Approval for Change of Use dated 25th September, 2018 by the 3rd Respondent.

e. The costs of the Application to be provided.

2. The application is based on the grounds on the face of it and the Supporting Affidavit of Jane Ngige, the 15th Petitioner on behalf of all the Petitioners of even date.

3. The gist of the Application is that the 1st Respondent is constructing a development on LR no. 4871/120 (the suit land) in Kikuyu Sub-County pursuant to the EIA Licence No. NEMA/EIA/PSL/8411 (the EIA Licence) and a Notification of Change of Use dated 25/9/2018 (the Change of Use) issued by the 2nd and 3rd Respondents respectively. That the EIA Licence was fraudulently and illegally obtained by the 1st Respondent for the following reasons; the EIA project Report prior to the issuance of the EIA Licence was in respect of 30 units yet the 2nd Respondent granted a Licence for 64 units; that the 1st Respondent has not obtained the requisite Licence from the Water Resource Management Authority for the intended borehole on the suit land; lack of requisite Public Participation as required in law and lastly that the Change of Use issued by the 3rd Respondent was contrary to Sections 41 and 52 of the Physical Planning Act and Regulation 2 of the Impact Assessment and Audit Regulations.

4. Opposing the Application, the 1st and 3rd Respondents filed Notices of Preliminary objections dated 21/9/2020 and 8/10/2020 respectively. Whilst dismissing the objections, in its ruling delivered on 17/6/2021, the Court directed that parties to submit the issues touching on the EIA licence to the National Environmental Tribunal (NET) and reserved the rest of the issues for its determination.

5. Contemporaneously, the 1st Respondent raised Grounds of Objection dated 30/11/2020. Further the 1st Respondent swore a detailed Replying Affidavit on 20/9/2021. He deponed that the application has been overtaken by events as the development on the suit land is almost complete and that over thirty Petitioners have withdrawn their consent to litigate the suit. That the Petitioners have not met the threshold for granting conservatory orders; the leadership of Magoko Women’s Group issued a withdrawal notice from the Petition; that Jane Ngige alongside her husband, Ngige Mondo leased to him one quarter acre plot to store construction materials and therefore cannot feign lack of knowledge of the development on the suit land.

6. The 1st Respondent further deponed that he was issued with notices from NEMA and NCA for want of protective environmental measures to curb dust and lack of sign board showing approvals respectively. That he immediately embarked to remedy the oversights was issued with a Certificate of Compliance by NCA – annexure GMM7. On the issue of WRMA authorization, the 1st Respondent averred that he duly complied with requisite conditions and was issued with Authorization Ref No. WRMA/30/NRB/3BA/19369/G of 18/3/2016 being GMM11.

7. Affirming public participation, the 1st Respondent averred that the same was conducted and all participants are immediate neighbors. Regarding change of use, he avowed that he publicly displayed the Onsite Public Notice and shared the same in the Star Newspaper of 7th August 2018. He urged the Court to dismiss the Application as it was a malicious attempt to frustrate his development despite heavily investing in it.

8. The 2nd Respondent was struck off this suit while the County Government of Kiambu did not file any response save for the written submissions.

9. The Applicants’ submissions dated 1/8/2021 were filed by Okumu Kubai & Co. Advocates. They submitted that they had indeed established a prima face case which discloses arguable issues as demonstrated in the grounds of the application. That if conservatory orders are not granted, the Applicants will be prejudiced as the Respondents’ actions amount to violation of the right to a clean and health environment that will result to diseases. Further that an award for damages cannot compensate the Petitioners for contraventions resulting from environmental degradation. Lastly that a conservatory order ought to issue as a matter of public interest as was stated by Supreme Court of Kenya in the case of Gitaru Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR.

10. Conversely, the 1st Respondent through the firm of Meritad Law Africa LLP filed submissions dated 1/10/2021. He submitted that at this stage, in considering whether to grant conservatory orders, the Court should not examine critical facts and evidence. That the Petitioners have not demonstrated how their rights and freedoms have been violated and how they have suffered. Highlighting the principles for granting conservatory orders enunciated in the case of Board of Management of Uhuru Secondary School v City Council Director of Education & 2 others [2015] eKLR that an Applicant ought to demonstrate a prima facie case with a likelihood of success, the 1st Respondent submitted that the Petitioners had failed to establish a prima facie case in their favour. He urged the Court to dismiss the application with costs.

11. Similarly the 3rd Respondent County Government of Kiambu, filed submissions dated 25/10/2021. It was submitted that any issue touching on the issuance of the EIA Licence was determined to be within by the NEMA Tribunal jurisdiction and therefore the Petitioners having withdrawn their appeal herein, the same does not fall for determination herein. That the Petitioners have not established a prima facie case with any likelihood of success to warrant the conservatory orders.

12. That the 1st Respondent displayed the Onsite Public Notice for change of use and invited any objection in the Star Newspaper on 7/8/2018 but none was received. That public participation was conducted before issuance of the EIA Licence and any dispute therefrom lie to the National Environment Tribunal (NET). Lastly it was argued that from the Petitioners own bundle of documents, it is not in doubt that the zoned area is a multi-dwelling residence and as such the Petitioners have failed to demonstrate what prejudice they stand to suffer.

13. The main issue for determination is whether the application is merited.

14. Parties filed a copy of a site visit report as directed by the Court on 9/2/2022 whose contents are as follows;

“Following directions issued by the Honourable Court on 9th February, 2022 the parties to the suit conducted a site visit on L.R. No. 4841/120 (the suit property) located along Steel Rolling Road within Kikuyu Sub-County on 14th February 2022.

The site visit was also conducted in the presence of Edwin Okumu, on behalf of Cyril Kubai Counsel representing the Petitioners, Ian Wanda – Counsel for the 1st Respondent, Keziah Mbugua, Advocate for the 3rd Respondent and Officials from the 3rd Respondent’s (County Government of Kiambu) Sub County Planner and Sub County Engineer.

The following are the notable observations of the said development;

1. The building has 8th floors, with the structure with the exterior complete.

2. That on the rooftop of the 8th floor, there is a reserved open area for water tanks for the tenants.

3. There are ongoing minor interior finishing works to be completed.

4. The development is 85% complete.

5. The 1st Respondent is in the process of finalizing the interior, lift and basement parking so as to obtain the necessary occupation certificates.

6. Currently there is a sewer line being constructed within the area by Athi Water.

7. The 1st Respondent has also contracted a waste management company to set up a pure environmental friendly waste management system with the approval of NEMA.

8. Workers are on site doing finishing works.

9. The application KKY CPD001 3033 is at final architectural approval.

10. There are existing high rise buildings within the vicinity of the site.

11. Some of the high rise buildings are up to 7 and 8 stories high with a basement parking.

Below are photographic evidence of the above observations.”

15. The guiding principles upon which Courts make findings on interlocutory applications for conservatory orders within the framework of Article 23 Constitution of Kenya are now fully settled. The Law is that, in considering an application for conservatory orders, the Court is not called upon and is indeed not required to make any definitive finding either of fact or Law as that is the province of the Court that will ultimately hear the Petition.

16. In the case of Peter Munya (supra) it was held that conservatory orders bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.

17. The Court is also required to evaluate the pleadings and determine whether denial of conservatory orders will prejudice the Applicant as was stated in the case of the Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General, Nairobi High Court Petition No. 16 of 2011; {2011} eKLR that:

“At this stage, a party seeking a conservatory order only requires to demonstrate that he has a primafacie case with a likelihood of success and that unless the Court grants the conservatory order there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”

18. What then is a prima facie case? The persuasive judgment of Odunga J in Kevin K. Mwiti & Others v Kenya School of Law & Others [2015] eKLR discussed the issue that;

“A prima facie case is not a case which must succeed at the hearing of the main case. However, it is not a case which discloses arguable issues and in this case arguable constitutional issues. It has been held that in considering an application for conservatory orders, the Court is not called upon to make any definite finding either of fact or law as that is the province of the Court that will ultimately hear the petition. At this stage the Applicant is only required to establish a primafacie case with a likelihood of success.”

19. Have the Applicants established a prima facie case herein? The Applicants have invited this Court to suspend construction of the development of the suit land. The basis of their application inter alia is that the EIA Licence was fraudulently and illegally obtained; lack of requisite Licence from the Water Resource Management Authority (WRMA); lack of public participation and irregular issuance of the Change of Use.

20. In opposition, the 1st Respondent filed a detailed Replying Affidavit as discussed in para. 5 above. On the issue of EIA Licence, this Court already pronounced itself in its Ruling delivered on 17/6/2021 and referred any dispute thereof to the NET. The 1st Respondent at para. 13 of his written submissions submitted that the Petitioners withdrew their appeal (NEMA Tribunal Case No. NET 33 OF 2020) at NET ON 28/1/2021. However no evidence of such withdrawal was tendered before this Court.

21. On the issue of WRMA Licence the 1st Respondent deponed that he has duly complied and was issued with an authorization Ref No. WRMA/30/NRB/3BA/19369/G of 18/3/2019. The authorization was annexed as annexure GMM11 and in my view that ground fails.

22. Regarding Public participation, the Petitioners aver that it was inadequate and failed to meet the statutory requirements. That there are no minutes to confirm the public meetings as stated at pages 14 & 36 of the EIA report. That out of the 10 local residents consulted, only 7 questionnaires in that respect were availed. In addition to that, the said 7 participants are not immediate neighbors of the area of the suit land and thus unaffected persons.

23. The 1st Respondent at para. 30 of his Replying Affidavit averred that Public Participation was properly conducted as evidenced by the EIA Project Report filed as JN3 of the Petitioners’ Supporting Affidavit. The 1st Respondent did not rebut the Petitioners’ averments that there were no minutes for any public meetings, that the persons who took part in the Public Participation were not immediate members of the area around the suit land. Even going by the questionnaires filed, three of the interviewees (Jane Karimi, Samwel Kinyanjui and Joseph Njau) did not disclose their house or land details in the questionnaire forms. It is perplexing to this Court that none of the 48 Petitioners who are neighbours and residents of Link Road, Kikuyu Sub County Kiambu where the development is situated participated in the Public Participation. The 1st Respondent did not rebut the Petitioners assertions that the forms being relied upon by the Petitioners were signed by individuals who are not known to the Petitioners (residents) nor are residents of the area.

24. Be that as it may, did the said Public Pariticipation meet the criteria set under the EIA Regulations? EIA Regulation 17 is coached in mandatory terms as follows;

17. (l) 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 nation-wide circulation; and

(iii) making an announcement of the notice in both official and local languages in a radio with a nation-wide 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 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. [Emphasis added]

25. The only poster the Respondents alluded to was the Onsite notice for a change of use – see para. 34 and 35 of 1st Respondent Replying Affidavit. There is no evidence of any public meeting with the affected persons nor the Petitioners and minutes and after responses thereof. The totality of the foregoing in my view, is that Public Participation was not adequately done. It is the holding of the Court that given their proximity to the Project, some or all the Petitioners qualify as project affected persons. There is no evidence that they were consulted, informed or their comments were taken into consideration before the licenses /approvals were issued.

26. The next issue for consideration touches on the Change of Use. It is argued that there were no material particulars e.g. advertisement for Change of Use as required under Section 41 for application and approval of the Physical Planning Act Cap 286 (the law applicable then); failure to serve the Application for Change of use upon the Petitioners; failure to publish the notices thereof as required under section 52 of the PPA and lastly the time of issuing Change of Use vis-à-vis time of issuing he EIA project Licence.

27. Sections 41 (3) and 52 of PPA respectively provided that;

“(3) Where in the opinion of a local authority an application in respect of development, change of user or subdivision has important impact on contiguous land or does not conform to any conditions registered against the title deed of property, the local authority shall, at the expense of the Applicant, publish the notice of the application in the Gazette or in such other manner as it deems expedient, and shall serve copies of the application on every owner or occupier of the property adjacent to the land to which the application relates and to such other persons as the local authority may deem fit.

52. Publication of notice in newspapers

Every notice published in the gazette under any of the provisions of this Act, except the notices published under sections 49 and 50, shall be simultaneously published in at least two local dailies, one in English and one in Kiswahili and be displayed at the offices of the Chiefs.”

28. The 3rd Respondent being the relevant local authority under the above provision has not tabled any evidence in form of a Gazette in respect to the impugned Change of Use. Alternatively, there is no evidence of service of the copies of the Change of Use application on every owner/occupier of the property adjacent to the suit land or to any other person as it deemed fit. Further, the evidence of publication of the Change of Use in the Star Newspaper of 7/8/2018 – annexure GMM14 does not satisfy the criteria enumerated in Section 52 of PPA above. Moreover there is no evidence of display of such notice at the Chief’s office.

29. On the issue of timing that the EIA Licence was issued on 21/8/2019 and approval for change of use issued on 25/9/2018, Regulation 4 the EIA Regulations state;

“4. (1) No proponent shall implement a project –

(a) likely to have a negative environmental impact; or

(b) for which an environmental impact assessment is required under the Act or these Regulations; unless an environmental impact assessment has been concluded and approved in accordance with these Regulations.

(2) No licensing authority under any law in force in Kenya shall issue a licence for any project for which an environmental impact assessment is required under the Act unless the Applicant produces to the licensing authority a licence of environmental impact assessment issued by the Authority under these Regulations.” [Emphasis added]

30. It is clear that in undertaking a development as the instant one, the EIA Licence precedes any other Licence that is relevant to such construction. It is therefore apparent that the change of use approval was issued 11 months before the issuance of EIA Licence herein.

31. The power to grant conservatory orders is a discretionary one. This is not the ordinary discretionary powers but discretion within the realm of the Constitution. Besides that conservatory orders under the Constitution are not remedies between one individual as against another but should be granted on the inherent merit of a case, bearing in mind the public interest. See the Court of Appeal case of Kariobangi South Land Owners Welfare Group & 3 others v Nairobi City County & 5 others; Kariobangi South Jua Kali Society (Interested party) (Civil Appeal 392 of 2017) [2021] KECA 183 (KLR).

32. The Petitioners’ application is expressed among others Article 42, 43 and 47 of the Constitution of Kenya. Article 42 provides for the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and to have obligations relating to the environment fulfilled under Article 70.

33. Enforcement of environmental rights under Article 70 Constitution of Kenya is to the effect that;

“(1) If a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a Court for redress in addition to any other legal remedies that are available in respect to the same matter.

(2) On application under clause (1), the Court may make any order, or give any directions, it considers appropriate—

(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;

(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or

(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an Applicant does not have to demonstrate that any person has incurred loss or suffered injury.”

34. Furthermore this Court is enjoined under Article 21(1) Constitution of Kenya to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. For purposes of Article 70, a Petitioner can approach the Court and seek redress for rights that have already been infringed, threatened with infringement or likely to be infringed. The 1st Respondent has maintained that the application was maliciously filed yet in his own RA at paras. 17, 18 and 19 admits that he was notified by NEMA that the project had failed to protect neighbors from dust and construction was suspended by NCA for lack signage of approvals and professionals engaged in the project. The Court finds that the Petitioners apprehension of a threat to their right to clean and healthy environment is not an idle one.

35. The Respondents’ submissions that the Petitioners have not proven how they have suffered as a result of any infringement if at all, does not hold water in light of Article 70(3) above and the issues highlighted by the Court above. Neither does the argument that the project is almost complete justify any breach of rights as alleged.

36. I am guided by the decision of the Court in Martin Nyaga Wambora Vs Speaker of the County Government of Embu & 3 others (2014) EKLR where the Court stated that;

“To those erudite words I would only highlight the importance of “real danger.” The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the Court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the Court’s attention.”

37. It is the finding of the Court that the Petitioners have demonstrated sufficient grounds of imminent and evident threat to their right to clean and healthy environment arising from the non-compliance of the Respondents with the relevant laws which now call for remedial redress by this Court.

38. To preserve the substratum of the Petition, the application is merited and it is allowed.

39. Costs shall be in favour of the Petitioners.

40. Orders accordingly.

DELIVERED, DATED AND SIGNED AT THIKA THIS 24TH DAY OF MARCH 2022 VIA MICROSOFT TEAMS.

J G KEMEI

JUDGE

Delivered online in the presence of;

Petitioner 1 – 48 – Aywa holding brief for Kubai

1st Respondent – Wanda

2nd Respondent – Struck out

3rd Respondent – Ms. Mbugua

Phyllis – Court Assistant