[2016] KEHC 5608 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND COURT CASE NO. 155 OF 2015

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY……1ST PLAINTIFF

NYAMIRA COUNTY GOVERNMENT ….………….…….……... 2ND PLAINTIFF

VERSUS

GERICK KENYA LIMITED ................................................................ DEFENDANT

RULING

Before me for determination is the 1st plaintiff’s Notice of Motion dated 21st April 2015 expressed to be brought under Sections 111, 109, 42 of the Environmental Management and Co-ordination Act (EMCA), Sections 13 and 18 of the Environment and Land Court (ELC) Act, and all other relevant provisions of the law. The application inter alia seeks the following orders:

That pending the hearing and determination of this suit, this court be pleased to issue an environmental restoration order stopping the defendant through itself, agents, employees or servants from any construction works at Plot No. West Mugirango/Siamani/5818 in Nyamira County.

This court do issue an environmental restoration order requiring the defendant through itself, agents, employees or servants, within 14 days, to demolish any structures erected on plot No. West Mugirango/Siamani/5818 with a view of restoring the environment to its original status and in default, the plaintiff be at liberty to so demolish and restore the environment and recover the expense of doing so from the defendant as a civil debt recoverable severally.

That the Police Officer Commanding Nyamira County do provide security for enforcement of the orders that this court would issue.

That the costs of the application be provided for.

The application is premised on the following grounds that appear on the face of the application and on further grounds set out in the supporting affidavit sworn by one Zephaniah Ouma, Acting Director of Compliance and Enforcement of the plaintiff dated 21st April, 2015.

That riparian reserves, riverine wetlands and other fragile ecosystems are protected by law and not subject to private ownership.

The defendant is indulging in construction of a petrol station on a riparian habitat and without environmental impact assessment approval, contrary to the law.

That the defendant is in total contempt of the statutory orders of Kisii High Court and NEMA and endangering the environment.

That the defendant is working with extreme impunity and disregard of county security apparatus.

That the riparian habitats are part of the wetland ecosystem which means that they support other lives or organisms and need to be protected. In the present case, the defendant is not only destroying the wet land but also the life downstream.

The deponent of the supporting affidavit, Zephaniah Ouma, depones under paragraph 3 of the affidavit that he on 31st October 2014 issued to the defendant an Environmental Impact Assessment (EIA) license in good faith believing in the truthfulness and accuracy of the EIA project report that the defendant had submitted to the plaintiff (annexture “Z01”). The deponent further deposes that soon after the issue of the EIA license there were complaints from the Nyamira County Government and Residents regarding the commencement of construction activities on the defendant’s site resulting in NEMA, County Director writing a letter dated 30th January 2015 inviting stakeholders for a joint inspection of the defendant’s site (letter annexed as “Z02”). The County Government Nyamira, apart from raising complaints and seeking stoppage of the works drew NEMA’s attention to the fact that NEMA had previously rejected approval for the construction of a petrol station on the site and that the High Court in Nairobi vide Misc. Application No. 1535 of 2005 (copy of judgment marked “Z05”) had upheld the decision by NEMA. The deponent in the supporting affidavit deposes that the respondent had deliberately submitted a false and inaccurate EIA project report without disclosing material information with the intention of misleading NEMA to issue the EIA license.

The deponent deposes that the respondent failed to disclose a previous application had been lodged for a similar project and on the same parcel of land by a person related to the respondent in 2004/2005 and was rejected by NEMA and the subsequent court challenge of the NEMA’s rejection was also dismissed. The deponent avers that the respondent in tendering a false and misleading EIA project report was being mischievous and calculated to mislead the applicant to issue a licence. The deponent states upon being satisfied the EIA report was false and inaccurate, he invoked the provisions of Section 64 EMCA and issued an Environment Restoration Order on 13th February 2015 annexed and marked “Z06” and further initiated disciplinary action against the Environment Impact Assessment Expert who prepared and submitted the impugned EIA project report on behalf of the respondent. The deponent states the respondent has challenged the Environment Restoration Order at the High Court and has obtained an ex parte status quo order which the respondent has interpreted to mean that he can continue with construction works. The applicant avers to allow the construction works to continue would be tantamount to sanctioning the carrying out of illegal works and it is for that reason the applicant seeks the orders of injunction in terms of the Notice of Motion.

The defendant through its managing director, one Erick Orina Bogonko swore a replying affidavit dated 5th May 2015 in opposition to the 1st plaintiff’s application. The defendant deposes that it has leased land parcel number West Mugirango/Siamani/ 5818 from one Peter Onchong’a for a term of 15 years from 1st September, 2014 as per the lease annexed as “EDB2”. The defendant deposes their intention was to construct and develop a petrol station on their site and in that regard caused to be prepared and submitted an Environmental Impact Assessment Study Report for the proposed petrol station on Plot No. West Mugirango/ Siamani/5818 which was evaluated and approved by the 1st plaintiff. The EIA study report is exhibited as “EOB-3”. The defendant states that the 1st plaintiff on the basis of the EIA study report submitted issued it with a NEMA license upon which the defendant commenced construction of the petrol station. The defendant states in executing the construction works it complied with all the terms of the license and the advice and recommendations of the Water Resource Management Authority (WRMA) and that in particular the fuel storage tanks were placed way above the water level and could not interfere with water paths below. The defendant avers that all the relevant agencies had sanctioned the project and were satisfied that no environmental concerns were posed by the project.

The defendant states that contrary to the 1st plaintiff’s assertions that no approval was given to the project by Nyamira County Government, the County Government has no issue with the project and they have always inspected its progress and have infact issued a single business permit and have licenced business operation on a portion of the project that has been completed. The defendant sees the opposition to the project as the work of business competitors who do not like the entry of the defendant in their business turf. The defendant denies that the project is being implemented in a wet land and states the area is not included in the Kenya Wetlands Atlas and neither would it fall within the definition of Wetland in the Environmental Management and Co-ordination Act, 1999.

Before the 1st plaintiff’s application could be heard inter partes the defendant sought and was granted leave to cross examine Zephaniah Ouma on the contents of his supporting affidavit and further Nyamira County Government were pursuant to an application for joinder ordered to be joined to the proceedings as the 2nd plaintiff.

In the application for joinder by the 2nd plaintiff dated 28th May 2015 the 2nd plaintiff proffered inter alia the following grounds in support of the application for joinder:

That the suit property LR No. West Mugirango/Siamani/ 5818 is situated within the 2nd plaintiff’s area of jurisdiction and it had not approved construction of a fuel filling station by the defendant thereon.

That the 2nd plaintiff represents the people of Nyamira County who would be adversely affected if the defendant was to construct a fuel filling station on the suit property as that would encroach onto and affect their water source and catchment area and would thereby interfere with the flora, fauna and the ecosystem.

That the riparian rights of the people of Nyamira County have been trampled upon by the defendant’s acts and violation of the subsisting order in Misc. App. No. 1535 of 2005 Peter Bogonko –vs- NEMA [2006] eKLR.

That the acts and/or omissions of the defendant threatens and continues to threaten the lives of all the people, riparian rights, flora and fauna of Nyamira County.

The parties filed written submission to canvass the 1st plaintiff’s application dated 21st April 2015. The 1st plaintiff/applicant field its submissions dated 13th July 2015 on 16th July 2015. The defendant/respondent filed its submissions on 14th July 2015 and further submission on 26th October 2015. The 2nd plaintiff filed its submissions on 30th September 2015 supporting the application by the 1st plaitniff. The parties counsel appeared before me on 19th November 2015 when they made oral submissions highlighting their filed submissions.

Mr. Gitonga advocate for the 1st plaintiff/applicant submitted that there was material non disclosure by the proponent when it submitted an environmental impact assessment study report in 2014 which culminated in the issue of the NEMA license approving the implementation of the project. Counsel for the applicant argued that the defendant failed to disclose that a similar application had been made in 2005 by one Peter Bogonko who it is argued is closely related to the defendant company by reason of being a family member of the directors and shareholders of the company. The applicant submitted that the application made in 2005 for the construction of a fuel filling station on land parcel West Mugirango/Siamani/5818, the same parcel of land whereof the defendant submitted an application for the construction of a fuel filling station in 2014, was rejected by the 1st plaintiff on the ground that the area where it was intended to implement the project was a fragile wetland ecosystem and there was an underground well which needed to be sustained. The decision rejecting the proposed project was challenged by the proponent by way of judicial review in HC Misc. Application No. 1535 of 2005 Peter Bogonko –vs- NEMA [2006] eKLR.

Hon. Lady Justice Wendo dismissed the Judicial Review Application and in doing so observed thus:

“The remedy of judicial review being a public law remedy, the court would obviously weigh the public interest vis a vis the rights of the applicant. The respondents have exhibited letters received from the public and some lead agencies which objected to the commencement of the project on grounds that the project would interfere with water catchment areas which is the people’s source of life.”

The learned judge further in the same case stated:-

“In the instant case, the court would be reluctant to grant an order of certiorari to quash the belated decision of the respondent taking into account that the public interest involved far outweighs the applicants individual rights of putting up a petrol station to earn a living. Can an order of prohibition issue? Even if an order of certiorari were granted, an order of prohibition to stop the respondents from interfering with the applicants project would not be granted in the light of the provisions of EMCA.

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The court cannot curb NEMA’s powers given by statute. The order cannot be granted.”

The 1st plaintiff submitted that though the defendant company was now the new proponent of the project, it was incumbent on the proponent to disclose there had been this earlier application that had been considered and declined particularly because the application was for a similar project on the same parcel of land. The 1st plaintiffs’ counsel endeavoured in his submissions to show the relationship between the defendant company and Peter Bogonko and in that regard drew the court’s attention to the company’s CR12 which shows the company has 2 directors, Geoffrey Bogonko and Eric Bogonko who it is said are family members of Peter Bogonko and hence that relationship is relevant in showing the fact of the earlier application was within the knowledge of the new proponent.

The 1st plaintiff argues the failure to disclose the fact of the previous application and the rejection thereof was intended and calculated to mislead the 1st plaintiff to approve the project. The 1st plaintiff states that the EA1 license issued to the defendant was issued on the basis of the information disclosed in the project report and that upon the 1st plaintiff discovering there was material nondisclosure of relevant information in the project report, the plaintiff was entitled to suspend the license and to issue an Environment Restoration Order such as the one carried vide the letter dated 13th February, 2015 (“Z06”). The EIA Expert who prepared the defective project report, the 1st plaintiff submits is liable to disciplinary action and such action has been commenced.

The 1st plaintiff further submitted the County Government of Nyamira has objected to the implementation of the project on grounds of public health and safety and lack of development approvals as detailed in county government letters dated 14th January 2015 and 27th January 2015 marked “Z03” and “Z04” respectively.

The 2nd plaintiff through Mr. Mokua Advocate in their oral submissions supported the submissions made by the 1st plaintiff. The 2nd plaintiff submitted that it had not granted any approval to the defendant’s development plans as required under Section 30 of the Physical Planning Act, Cap 286 Laws of Kenya and consequently the defendant had commenced the development without approval.

The 2nd plaintiff further argued the project if executed by the defendant would expose the residents of Nyamira to possible irreparable harm and urged the court to invoke the precautionary principle to safeguard the wider public from potential harm as a result of the defendants acts. The 2nd plaintiff submitted the balance of convenience would be in favour of granting the injunction as prayed for by the 1st plaintiff.

The defendant in its submission through Mr. Bosire advocate reiterated the contents of the replying affidavit sworn by Erick Orina Bogonko and maintained that the defendant as a corporate entity can only act through its agents and hence documents can be executed by different people. The defendant stated the EIA report submitted to the 1st plaintiff was professionally done and it covered all the aspects that it was supposed to cover and in its preparation there was public participation as required under the law.

The defendant further submitted that there was nothing that would prevent a proponent from resubmitting a report for consideration where there had been a rejection of an earlier report on a proposed project. Responding to the 1st plaintiff submissions that the defendant had not disclosed there had been a previous application for the same project that had been rejected, the defendant stated that no evidence had been adduced as to why the previous application had been rejected intimating that the previous application did not have any bearing on the application that the 1st plaintiff considered and approved. The defendant faulted the issue of the letter dated 13th February 2015 by the 1st plaintiff which directed stoppage of all works on the project arguing that such a letter could only issue with the advice of the review committee under Section 67 of Environmental Management and Co-ordination Actwhich was not the case in the instant matter.

The defendant further submitted the 1st plaintiff could not revoke the defendant’s license under Section 64 of Environmental Management and Co-ordination Actas the 1st plaintiff purported to do as that provision merely entitles the 1st plaintiff to seek a fresh resubmission of an Environment Implementation Assessment report. The defendant refuted the 1st plaintiff’s averment that the site is a wet land arguing that the site is infact a quarry although there is a spring some 30 metres or so away.

The defendant’s position is that it had complied with the terms of the license and the plaintiff had no basis to cancel or revoke the same. The defendant asserted that the lead agencies through the Water Resource Management Authority (WARMA) were overseeing the implementation of the project after the license had been issued by NEMA. In regard to the 2nd plaintiff, the defendant’s position is that the 2nd plaintiff had issued the defendant a business license to carry on business at the suit premises and hence the 2nd plaintiff cannot claim they had not given approval to the project.

Mr. Gitonga in response to the defendant’s submissions stated that the standards review committee established under Section 67 EMCA applies when the issue relates to cancellation of an EIA license in which case the committee advises the authority on either the revocation, suspension or cancellation of the license. Mr. Gitonga clarified that the 1st plaintiff’s letter of 13th February 2015 did not deal with cancellation or revocation of the license but that it merely sought stoppage of construction and undertaking to restore the premises. The 1st plaintiff reiterated it had the power and authority to make a decision as the one communicated to the defendant vide the letter dated 13th February, 2015.

Having reviewed the 1st plaintiff’s application together with the affidavits in support and in opposition together with the annextures thereof and also having considered the submission made on behalf of the parties the issue for determination is whether the 1st plaintiff has made out a case to warrant the court to grant the orders sought in the 1st plaintiff’s application dated 21st April 2015.

NEMA, the 1st plaintiff herein, is a creature of the statute (EMCA) and has the overall mandate to oversee and co-ordinate the implementation of policies relating to the environment to ensure the environment is protected and is not degraded and that the same is sustainably conserved for the benefit of future generations. NEMA is the agency that is expected to be in the forefront in giving effect to the provisions of Article 42 of the Constitution which provides thus:-

42. Every person has the right to a clean and healthy environment which includes the right –

(a) 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

(b) To have obligations relating to the environment fulfilled under Article 70.

The state inter alia under Article 69 (1) of the Constitution is obligated to:-

69 (1) The state shall -

Ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;

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Encourage public participation in the management protection and conservation of the environment;

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Establish systems of environmental impact assessment, environmental audit and monitoring of the environment.

Eliminate processes and activities that are likely to endanger the environment; and

Utilize the environment and natural resources for the benefit of the people of Kenya.

It is thus evident that although the functions of NEMA are fully set out under Section 9 of the EMCA the same are further underscored under the above referred to provisions of the constitution. In the premises one can unequivocably state that NEMA is the watchdog on behalf of the public in all matters touching on the environment and it is expected to ensure the environment is safeguarded for the benefit of all.

In the present matter NEMA states that in 2005 it had rejected the setting up of a petrol station on land parcel No. West Mugirango/ Siamani/5818 on the ground that the area was a wet land and that the setting up of a petrol station on the site had the potential of contaminating and/or polluting the water well that was the source of clean water for many residents. It is on the same site that the defendant seeks to develop a similar project, a petrol station. The 1st plaintiff asserts that an EIA license was issued by the 1st plaintiff, in approval of the defendant’s project by mistake owing to failure by the defendant to make disclosure that a previous application for a similar project on the same site had been rejected and further failing to disclose the site was a sensitive ecosystem being the source of a well that provided clean water to the community.

Mr. Zephania Owuor Ouma who swore the affidavit in support of the 1st plaintiff’s application was cross-examined on the contents of his affidavit on the application of the defendant. He maintained that the EIA report submitted by the defendant did not disclose that there was an earlier EIA report for similar project that was rejected. He testified that the second EIA report did not disclose the sensitivity of the area where the project was to be undertaken and the same was approved on that basis. He stated the consultative committee which visited the site after the defendant had been issued with a license confirmed the sensitivity of the surrounding environment. The deponent further testified the project to be undertaken by the defendant was very sensitive as the chances of petrol polluting the water was very high and that would be prejudicial to the community who depend on the water from the area.

The 1st plaintiff on the basis that the defendant concealed material information and on the basis that the EIA report submitted did not disclose that the area on which the project was intended to be implemented was a wet land and therefore sensitive to the type of project proposed issued the letter of 13th February 2015 to the defendant to cease construction/development activities at the site. While the letter indicated it was effecting the environmental restoration order it did not specify what it sought to have restored but it clearly directed stoppage of construction. The 1st plaintiff has power under Section 108 to issue an Environmental Restoration Order. Under Section 108 (2) (b), an Environmental Restoration Order may be issued to:-

108(2)(b) An environmental restoration order issued under sub-section (1) or Section 111 shall be issued to-

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Prevent the person on whom it is served from taking any action which would or is reasonably likely to cause harm to the environment;

In the letter of 13th February, 2015 the defendant was ordered to cease construction and was required to submit a letter to the authority within 7 days to confirm it would comply. The defendant has separately challenged the letter dated 13th February 2015 and has taken out Judicial Review proceedings seeking to quash the same. Arguments have been advanced as to whether or not the letter of 13th February 2015 revoked and/or cancelled the EIA license that had been issued to the defendant by the 1st plaintiff. I do not think it did either as it did not revoke or cancel the license. The letter of 13th February 2015 was what it says it was an “Environmental Restoration Order”. In the premises the provisions of Section 67 EMCA which relates to revocation, suspension or cancellation of Environmental Impact Assessment license has no application.

Zephania Ouma when he testified he stated thus:- “the defendant is supposed to undertake a fresh EIA report for consideration by the plaintiffs”. In my view given the reasons that led to the issue of the now contentious environmental restoration order the 1st plaintiff ought to have invoked the provisions of Section 64, EMCA and require the defendant to submit a fresh EIA study report for consideration

Section 64 (1) EMCA provides:-

64(1)The authority may, at any time after the issue of an environmental impact assessment licence direct the holder of such licence to submit at his own expense a fresh environmental impact assessment study, evaluation or review report within such time as the authority may specify where –

There is a substantive change or modification in the project or in the manner in which the project is being operated;

The project poses environmental threat which could not be reasonably foreseen at the time of the study, evaluation or review; or

It is established that information or data given by the proponent in support of his application for an environmental impact assessment licence under Section 58 was false, inaccurate or intended to mislead.

The 1st plaintiff argues there was concealment of relevant information and/or there was an intention to mislead at the time the defendant submitted its EAI study report and thus the submission of a fresh study report would have been necessitated. The defendant cannot insist that the EAI study report was sufficient when the 1st plaintiff says it was deficient.

NEMA as the institution mandated under the law to co-ordinate and ensure the environment is protected must be given the space to execute its mandate within the law. The 1st plaintiffs’ assertion that the area where the defendant wants to implement its project is a sensitive ecosystem and the source of water for the community cannot be dismissed off hand. The Nyamira County Government lends its support to the 1st plaintiff as attested to by the various correspondences emanating from the County Government offices. In this matter we have a situation where we have competing interests. On the one hand we have the public interest where the community needs protection against potential harm to the environment through contamination or pollution, and on the other hand we have the defendant’s private commercial interest where the defendant wishes to develop the site for commercial gain. Where in a case such as the instant one, the public interest is pitied against private interest, the public interest overrides the private interest as the public interest is for the good of the wider public as opposed to the narrow private interest. The public interest no doubt far outweighs the private individual interest.

Upon full review and evaluation of all the material presented by the parties in this matter, I am satisfied the 1st plaintiff was within its rights to issue the environmental restoration order for the stoppage of the construction works being undertaken by the defendant at the project implementation site. However, the 1st plaintiff in the circumstances ought to have required the defendant to submit a fresh EIA study report pursuant to the provisions of Section 64 EMCA to enable a re-evaluation of the project to be done. In coming to this determination, I have taken consideration of precautionary principle which under Section 18 of the Environment and Land Act No. 19 of 2011this court is enjoined to be guided by in matters/issues of sustainable development. Under Section 2 EMCA “precautionary principle” is defined as follows:

“is the principle that where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainity shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.

The damage that contamination or pollution of the underground water, which is the source of water for the community can cause in case it occurs cannot be quantified and may be irreversible. The mere likelihood of potential risk of pollution or contamination is sufficient reason for this court to invoke the precautionary principle as it is better and cheaper to prevent than to cure.

The net result is that I find the application by the 1st plaintiff to have merit and I would grant prayer No. 3 of the Notice of Motion dated 21st April 2015. However, to the extent that prayer 4 of the Notice of Motion seeks orders of demolition of the structures erected on land parcel West Mugirango/Siamani/5818, I consider the same premature as the fresh EIA study report could result in the project being approved. The 1st plaintiff’s application is therefore granted on the following terms;

That an environmental restoration order be and is hereby issued stopping the defendant through itself, agents, employees or servants from engaging in any further construction works at Plot No. West Mugirango/Siamani/ 5818 in Nyamira County until this suit is heard and determined and/or until further orders of the court.

The 1st plaintiff shall within the next 30 days of this ruling direct the defendant under the provisions of Section 64 EMCA to cause to be prepared and submitted to the plaintiff a fresh environmental impact assessment study on the project within such period as the 1st plaintiff may determine which report once submitted will be dealt with as provided under Sections 58 and 59 of EMCA.

The defendant shall not pending the determination of the fresh EIA study report to be submitted to the 1st plaintiff as in (2) above store or dispense any petrol or fuel products in any premises at land parcel number West Mugirango/ Siamani/5818 and/or until further orders of the court.

Each party shall bear their own costs of the application.

Ruling dated, signedand deliveredat Kisii this 18th day of March, 2016.

J. M MUTUNGI

JUDGE

In the presence of:

…………………………………………..for the 1st plaintiff

………………………………….………for the 2nd plaintiff

………………………………….………..for the defendant

J. M. MUTUNGI

JUDGE