[2018] KEELC 4021 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO. 334 OF 2017

MAHMOOD SHARIFF ALI & 10 OTHERS ……………………PLAINTIFFS

VERSUS

SAFARICOM LIMITED ………………………………………...DEFENDANT

RULING

1. This is the Notice of Motion dated 15. 9.2017. It is brought under Section 68 (i) of the Environmental Management and Coordination Act 1999, Environmental Impact assessment and Audit Regulations 2003, Regulation 17 and 21; Section 1A, 1B and 3A of the Civil Procedure Act, Orders 51 Rule 1 of the Civil Procedure Rules 2010 and all enabling provisions of the law. Order 40 Rule 1 of the Civil Procedure Rules, 2010.

2. It seeks orders;

i. Spent

ii. Spent

iii. That a temporary injunction be issued restraining the Defendant/Respondent, their servants, agents and/or employees from erecting and/or installing a base transmitter receiver station at site number ELO896 on title number Mombasa/Block XX/139 Sargoi Kipande area in Mwembe Tayari location (near Uhuru gardens) pending the hearing and determination of this suit.

iv. That costs of this application be provided for.

3. The grounds relied upon are on the face of the application and are listed as paragraph 1-14. I do not need to reproduce them here.

4. The application is supported by the affidavit of Mahmood Shariff Ali, the 1st Plaintiff/Applicant sworn on the 15. 9.2017.

5. Upon being served the Defendant/Respondent filed a notice of preliminary objection dated 2. 10. 2017 on the ground that this court does not have original jurisdiction to hear and determine the dispute herein in light of Section 129(1) & (2) of the Environmental Management Coordination Act 1999. The said preliminary objection was however withdrawn through a notice of withdrawal dated 1. 11. 2017.

6. The application is opposed. There is a replying affidavit sworn by Daniel M. Ndaba, the Defendant’s senior Manager-Litigation sworn on the 1. 11. 2017.

7. It is the Plaintiffs/Applicants case that the construction of a Base trans-receiver station will emit rays that are harmful to the Plaintiffs and other residents of the area. That this contravenes Article 42 of the Constitution which guarantees the Plaintiffs/Applicants right to a clean and healthy environment.

8. That they have established a prima facie case with a probability of success at the trial. Further that the Plaintiffs/Applicants do not have to demonstrate that they have suffered any loss or injury.

9. It is the Defendants/Respondent’s case that it conducted seven instances of public participation forums where the Plaintiff/Applicants presented their views. Their opinions were considered and a decision reached. The Environmental Impact Assessment project report prepared by Mazingira Limited was approved by National Environmental Management Authority because it satisfied all the health and safety concerns.

10. That experts authorized to comment on the technical issues would have to be called to testify. That no prima facie case has been demonstrated by the Plaintiff/Applicants to warrant this court to grant the orders sought.

11. I have considered the pleadings, the application and the affidavits in support, together with the annexures. I have also considered the replying affidavit and the annexures. I have considered the submissions of counsel and the authorities cited. The issues for determination are;

i. Whether there has been a violation of the Plaintiffs/Applicants rights to a clean and healthy environment.

ii. Whether they have established a prima facie case with a probability of success at the trial.

iii. Who should bear costs of this application?

12. It is now appropriate to consider the facts that have emerged and the legal principles applicable. The principles were set down in the precedent setting case of Giella –versus- Cassman Brown And Company Limited (1973) E.A 358.

13. In the case of Mrao Limited –versus- First American Bank Limited And 2 Others (2003) KLR 125the Court of Appeal gave a definition of what amounts to a prima facie case. It stated

“A prima facie in a civil application but is not confined to “a genuine and arguable case.” It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

14. It is not in doubt that under Article 42 of the Constitution 2010, the Plaintiffs/Applicants are entitled to a clean and healthy environment.

Under Article 70 of the Constitution 2010 an applicant who allenges that a right to a clean and healthy environment has been denied, violated, infringed or threatened, may apply to the court for redress in addition to any other legal remedies.

Under Article 70(3) of the Constitution, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

15. The Plaintiffs/Applicants contention is that having a base trans-receiver station in that area is a threat to their right to a clean and healthy environment. That it will emit rays that are harmful to them and other residents in that area.

16. There is no doubt that the Plaintiffs were given opportunities to give their grievances. In short public participation was done but the Plaintiffs in all the instances rejected the project.

17. The National Environmental Management Authority approved the project after going through the environment impact assessment project report by Mazingira Limited. The said National Environmental Management Authority was satisfied that all the steps had been followed culminating in the grant of the licence.

The National Environmental Management Authority is the agency mandated under the Environmental Management Coordination Act to manage and ensure the environment is not degraded by any person or body. It has a primary duty of ensuring compliance with the Act and the regulations made thereunder.

18. The authority must have studied the Environmental impact assessment project report by Mazingira Limited and approved it. It has committees established under the Act comprised of persons with specialized expertise in the area of specialization better suited to deal with technical issues.

19. It is the Plaintiffs/Applicants contention that the right to a clean and healthy environment has been infringed. This is disputed by the Respondent. I am of the view that in the absence of an expert report as to the effect of the said Base trans-receiver station on the environment, this court cannot conclude that it has a negative impact on the environment and propensity to harm through emissions of electro-magnetic waves. The Base trans-receiver station is necessary to sustain communication.

I therefore find that the Plaintiffs/Applicants rights under Article 42 of the Constitution have not been violated and/or infringed.

20. In paragraph 12 of the supporting affidavit the 1st Plaintiff/Applicant avers,

“that the Defendant/Respondent failed, refused and/or ignored to seek the authority and/or consent of Communications Authority of Kenya as required by law.”

Again this will be an issue which will be canvassed at the hearing. The Plaintiffs/Applicants have not placed any material before court to show that such an authority was not sought.

21. I find that no evidence has been placed before court to show that the Base trans-receiver station constitutes a risk to the environment. I rely on the case of Ken Kasinga –versus- Daniel Kiplangat Kirui And 5 Others, Nakuru ELC Petition No 50 of 2013.

22. The 1st Plaintiff has attached to his further affidavit sworn on 27. 11. 2017. International Commission on non-ionizing Radiation Protection (ICNIRP) guidelines of 1998.

I find that these are just guidelines and not an expert report on the particular Base trans-receiver station to be put up. I rely on the authority of Evanson Gachoka Kamau And 5 Others –versus- Cabinet Secretary, Roads & Infrastructure And 2 Others (2016) eKLRwhere it was held that,

“It is not the duty of the court however to enter into technical issues that are outside its remit.”

They also quoted the case of West Kenya Sugar Co. Ltd –versus Kenya Sugar Board And Another (2014) eKLRwhere the Court of Appeal held that,

“The High Court was ill equipped to decide whether or not the conditions for granting a licence had been met, some of the information provided in the application for licence was of a technical nature. Condition stipulated in Section 15 (i) (b) of the Act refers to technical experience and capacity. These factors could only have been properly evaluated by persons well versed in matters pertaining to sugar industry and the application of the policy of the Act.”

23. All in all I find that the Plaintiffs/Applicants have failed to prove that they have a prima facie case with a probability of success at the trial. I agree with the Respondent’s/Defendant’s submissions that experts authorized to comment on technical issued would have to be called at the trial.

24. I find no merit in this application and I dismiss the same.

The costs of this application shall abide the outcome of the main suit.

It is so ordered.

Dated, signed and delivered atMombasa on the15th dayofFebruary 2018.

_________________

L. KOMINGOI

JUDGE

15/2/2018