[2022] KENET 699 (KLR)

Nato & 3 others v National Environment Management Authority & another (Tribunal Appeal 22 of 2020) [2022] KENET 699 (KLR) (Civ) (12 September 2022) (Judgment)

Neutral citation: [2022] KENET 699 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 22 of 2020

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

September 12, 2022

Between

Michael Barasa Nato

1st Appellant

Salim Suleiman

2nd Appellant

Jane Dali Mwandembo

3rd Appellant

Boniface Ochieng Nyamgutu

4th Appellant

and

National Environment Management Authority

1st Respondent

Focus Container Freight Stations Limited

2nd Respondent

A fresh environmental impact assessment (EIA) study should be carried out before granting an EIA licence where the licence had initially been denied due to safety issues

The appeals challenged the decision of the National Environment Management Authority (1st respondent) to grant an environmental impact assessment (EIA) licence to the 2nd respondent for the installation of bulk liquified petroleum gas (LPG) storage depot. The National Environment Tribunal (Tribunal) held that considering the poor quality of the public participation in the initial application for the EIA licence and the vehement objection to the same, the 1st respondent ought not to have granted the EIA licence without subjecting the downsized project to a fresh EIA study. The Tribunal also held that its jurisdiction did not include making determination on the ownership of land or title to the same.

Reported by Kakai Toili

Environmental Law -environment impact assessments (EIA) - EIA licences -whether a fresh EIA should be carried out before the issuance of an EIA licence to a proprietor who had initially been denied an EIA licence due to safety issues, where the proprietor reduced the size of the project.Constitutional Law- national values and principles of governance - public participation - public participation in an environmental impact assessment context - what did public participation in an environmental impact assessment context entail.Jurisdiction- jurisdiction of the National Environment Tribunal - jurisdiction to make a determination on the ownership of land - whether the National Environment Tribunal had the jurisdiction to make a determination on the ownership of land - Environmental Management and Co-Ordination, 1999, section 129.

Brief facts The appellants were aggrieved by the decision of the National Environment Management Authority (1st respondent) to grant an environmental impact assessment (EIA) licence to the 2nd respondent for the installation of 15,000 MT bulk liquified petroleum gas (LPG) storage depot. According to the appellants, the EIA licence ought not to have been granted to the 2nd respondent as; there was inadequate public participation; the project site was located in a densely populated area; the project would affect the marine life within its locality; there was no proper analysis of the impacts and mitigation measures presented by the project proponent among others.The appellants submitted that the estates of Migadini and Chaani being the ones neighbouring the suit property were densely populated and that there was no room for fire engines or emergency rescue services to save lives and property. It was the appellants’ case that the 1st respondent failed to consider the objections and views from stakeholders. The appellants thus prayed for the revocation of the EIA licence granted to the 2nd respondent.

Issues

Whether a fresh EIA should be carried out before the issuance of an EIA licence to a proprietor who had initially been denied an EIA licence due to safety issues, where the proprietor reduced the size of the project.

What did public participation in an environmental impact assessment context entail?

Whether the National Environment Tribunal had the jurisdiction to make a determination on the ownership of land.

Held

Public participation in the EIA context entailed disseminating information to members of the public about a proposed project, seeking their views on the same either in writing or oral submissions and taking into consideration their views in decision making.

The law required that the lead agencies and the members of the public do participate in the EIA process through various methods. They included sending written memoranda, filling questionnaires, public hearings among other methods. Whereas it would be legally expected that all persons in the Republic of Kenya should be able to access a copy of the Kenya Gazette, read advertisements in the newspapers, listen to announcements on radio and read notices posted near the project site, it was practically impossible for residents of the informal settlements such as Chaani and Migadini estates to access some of the methods of inviting them for public participation. It would be over ambitious for the residents to be expected to access page 12 of 18 the Kenya Gazette or buy newspapers every now and check out the details of the EIA study reports that were coming up for consideration.

To communicate more effectively in informal settlements, it would be expected that the project proponent would make deliberate efforts to invite members of the public through notices posted within areas that were closest to the proposed project site. There was no evidence of such notices during the hearing.

Going by the letter of the County Commissioner who was probably the highest-ranking officer of the National Government at the county level, there was a public hearing on September 25, 2019 but the letter also indicated that, attendance was quite good from both sides even though the atmosphere was highly charged. That corroborated the evidence of the appellants witnesses that there was tension in the meeting and they were prevented from adequately participating in that meeting.

Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. Failure to take into account the requirements of public participation, as required by the law was fatal to the decision. There was no evidence that the respondents called any other public hearing after the impugned hearing of September 25, 2019 to correct the legally ineffective public hearing.

The public hearing could not be just mere theatrics to tick the constitutional box of public participation. Whereas the 1st respondent could not be simply vetoed by the views of the populace, it was mandatory for the populace to be heard prior to the grant of an EIA licence. The public participation for the disputed project was not done in accordance with the Environmental Management and Co-ordination Act (EMCA) and the EIA Regulations.

The jurisdiction of the Tribunal was well set out under section 129 of EMCA and that jurisdiction did not include making determination on the ownership of land or title to the same. The mandate to determine the title, occupation and use of a property lay elsewhere and the Tribunal could not usurp such powers. While there could be a dispute over the property occupied by the residents of Chaani and Migadini Estates, the Tribunal had no power venture into the determination of whether the residents had any rights to occupy the suit property or whether the same was owned by the Kenya Ports Authority (KPA) or any other person.

The powers of the Tribunal only extended to making an inquiry into whether the EIA licence granted to the 2nd respondent exposed the residents to living conditions that were dangerous or negated the rights of the residents to live in a clean and healthy environment. If the Tribunal found that such a licence exposed those residents to danger, it had a duty to protect them as long as they were there but that was not to be construed as giving the residents title to the disputed property or as a bar from eviction from the property in accordance with the law if the property indeed belonged to someone else.

It was not enough for the respondents to argue that the proposed project site was a dangerous zone and disregard the human life and property that could be affected by the negative impacts of the proposed project. The Tribunal could not close its eyes or shut its doors to the residents who were residing in the area adjoining the proposed project site. It was for the relevant authorities to take the requisite steps to ensure there was no human settlement in the areas where they were issuing EIA licences for such dangerous substances.

The initial proposed project of 30,000 MT was opposed by both the 1st respondent and the appellants on safety issues among other reasons. Upon downsizing the same to 15,000 MT, the 1st respondent proceeded to grant the EIA licence to the 2nd respondent without subjecting the same to a fresh EIA Study. The impacts of the 15,000 MT ought to be addressed in an EIA Study process and the residents be allowed to effectively participate in the same before the issuance of an EIA licence, if any.

Considering the poor quality of the public participation in the initial application for the EIA licence for the 30,000 MT project and the vehement objection to the same, the 1st respondent ought not to have granted the EIA licence to the 2nd respondent without subjecting the downsized project to a fresh EIA study. Should the impacts of the downsized project be dangerous to the residents or portend any other dangers to the environment, the 1st respondent had the mandate to do what was right to preserve the environment. The 1st respondent did not necessarily need to grant an EIA licence then call for a fresh EIA study report or further information where it was clear beforehand that there were gaps that needed to be addressed by the project proponent.

Section 63 of EMCA provided that the Authority could require any proponent of a project to carry out at his own expense further evaluation or EIA study, review or submit additional information for the purposes of ensuring that the EIA study, review or evaluation report was as accurate and exhaustive as possible. That section covered the period before the issuance of an EIA licence whereas section 64 of EMCA covered the period after the issuance of the licence.

The 1st respondent erred in granting the EIA licence to the 2nd respondent without subjecting the downsized project to a fresh EIA study report. The appellants had made numerous prayers to the Tribunal among them a prayer that the 2nd respondent be restrained from setting up an LPG facility in any residential area within Mombasa County. The Tribunal was hesitant to issue blanket orders as to do that would prevent the relevant regulatory authorities from effectively carrying out their work which was their statutory mandate. The Tribunal being a statutory body to hear appeals from specific disputes touching on specific licences would serve the public better when approached to resolve specific disputes.

Appeals allowed; EIA licence number NEMA/EIA/PSL/9219 issued to the 2nd respondent on April 30, 2020 cancelled and/or revoked; each party to bear own costs.

Citations Cases Names Expunged (suing on their behalf and on behalf of the Mui Coal Basin Local Community), Eric Mutua, Titus Kivaa P.M, Paul Mumo Kisau, Gideon Wathe Nzau, Florence Mutwali Kitonga, Particia Kisio Kimanzi, Joseph Muthui Nzuni, Margaret Munyoki, Solomon Kimanzi Kivoto, Eunice Keli Wambua, David Kilonzo Maweu, John Kimakio Mutia, Nzomo Mulatia, Mui Coal Project Blocks C and D Liason Committee & Munywoki Mutunga Malombe & others v Permanent Secretary Ministry of Energy, Attorney General, Principal Secretary Ministry of Energy and Petroleum, Principal Secretary Ministry of Mining, Principal Secretary Ministry of Lands Housing and Urban Development, Fenxi Mining Industry Company Limited, Fenxi Mui Mining Corporation Limited & Cabinet Secretary Ministry of Mining (Constitutional Petition 305 of 2012; [2015] KEHC 473 (KLR)) — Explained

Sam Odera & 3 Others vs National Environmental Management Authority & Another (? 400 of 2006; [2006] KEHC 723 (KLR))

Statutes Environmental Impact Assessment and Audit Regulations, 2003 (Act No. 8 of 1999 Sub Leg) — Regulation 17(2) — Interpreted

Environmental Management And Co-Ordination Act (No. 8 of 1999) — Section 59(2); 64 — Interpreted

International Instruments Rio Declaration on Environment and Development, 1992

AdvocatesNone mentioned

Judgment

1. This judgment is for three appeals being NET Appeal 22 of 2020, NET Appeal 24 of 2020 and NET Appeal 25 of 2020 which were consolidated by the Tribunal with NET 22 of 2020 being the lead file.

2. All the appellants are aggrieved by the decision of the 1st respondent to grant Environmental Impact Assessment (EIA) Licence number NEMA/EIA/PSL/9219 issued to the 2nd respondent on April 30, 2020, which licence is for the ‘installation of 15,000 MT Bulk Liquified Petroleum Gas storage depot comprising loading facility, a filling point, hydrant location, jetty, office, associated facilities and amenities located at Plot LR No MN/VI/3711. ’ The common thread of the prayers set out by the Appellants is that the above cited EIA Licence was granted unlawfully and ought to be cancelled.

The Appellants’ Case 3. According to the appellants, the EIA Licence ought not to have been granted to the 2nd respondent as there was inadequate public participation, the project site is located in a densely populated area, the project shall affect the marine life within its locality, there was no proper analysis of the impacts and mitigation measures presented by the project proponent, the project is a threat to the human life within its locality as it borders dense civilian population with many schools being in close proximity to the project site.

4. The appellants listed the following schools as being in close proximity to the proposed project site: Chaani Primary and Secondary Schools, Migadini Primary School, Umoja Primary School, Kipevu Primary School, Blue Sky Academy, Elite Imperial Complex, Good Wish Academy, Sir Morice Academy, Urban Academy, Ferena Junior Academy among others; all whose distance from the project site is between 80 and 880 metres. It is the appellants’ case that the size of the property is does not allow for setbacks and room for the attendant emergency rescue services in the event of a fire accident. The appellants submitted to the Tribunal that the estates of Migadini and Chaani being the ones neighbouring the property are densely populated and there is no room for fire engines or emergency rescue services to save lives and property.

5. Further to the above, the appellants contended that the project was objected to by critical institutions including the Kenya Ports Authority (KPA), the Kenya Navy and Energy & Petroleum Regulatory Authority (EPRA). The appellants further stated that the there were serious concerns raised by other institutions including the 1st Respondent itself which is a demonstration of the dangers that the project posed to the residents of Changamwe, Chaani and Migadini Estates.

6. It is the appellants’ case that the 1st respondent failed to consider the objections and views from stakeholders hence finds that the process was conducted in a very arbitrary manner and in total disregard to the residents’ right to fair administrative action. Finally, the appellants stated that LPG being capable of mixing with air easily forms flammable mixture and can cause fire and explosion if inappropriately stored. They prayed that the appeals be allowed with costs.

The 1st respondent’s case 7. The 1st respondent filed a response to the appeals and called the evidence of Marriane Kioko during the hearing of the case. According to the 1st respondent, the public participation was conducted in accordance with the Environmental Management and Co-ordination Act (EMCA) and the Environmental Impact Assessment and Audit Regulations (the EIA Regulations) and it was satisfied with the process followed by the in conducting the public participation for the project was adequate.

8. Once the 1st respondent received the Environmental Impact Assessment Study Report (EIA Study Report), it subjected the same to a technical review taking into consideration the public concerns raised during public participation as well as the recommendations of the relevant lead agencies. One of the key recommendations from the 1st respondent was for the 2nd respondent to redesign its project by reducing it by half or seeking an alternative site for the same. On April 28, 2020, the 2nd respondent wrote to the 1st respondent confirming its acceptance to downscale the project from 30,000 MT to 15,000 MT. Having accepted to downscale the project as required by the 1st respondent, the 2nd respondent Was Issued with the EIA Licence for the downscaled project and was further required to comply with the conditions attached thereof.

9. On the project location, the 1st respondent argued that the project site is proposed to be undertaken in an area designated as a dangerous zone and is for industries conducting activities largely similar to those being proposed by the 2nd respondent. According to the 1st respondent, it is the residents of the neighbouring estates who have moved into an otherwise dangerous area and put themselves on harm’s way.

10. The 1st respondent’s witness told the Tribunal that some of the dangers associated with a project such as the proposed one is fire explosion due to leakage and seepage of gas and also admitted that the 1st respondent did not carry out any independent assessment to check for any other impacts.

11. The 1st respondent vouched for the EIA Licence that it granted to the 2nd respondent and prayed that the appeals be dismissed with costs.

The 2nd Respondent’s Case 12. The 2nd respondent vehemently opposed the appeals. The 2nd respondent states from the very outset that the appellants claim to be lawful residents of the area yet they are squatters on industrial property and none of them produced any ownership documents during the trial. The 2nd respondent took issue with the prayer that the appellants seek of the Tribunal to restrain the 2nd respondent from setting up and LPG storage plant in Changamwe, Chaani-Migadini areas yet Kenya Ports Authority (KPA) is already in the midst of constructing Kipevu Oil Terminal Common User manifold next to the 2nd respondent’s proposed project site and there is no suit whatsoever that has been instituted against the said construction.

13. On public participation, the 2nd respondent states that it complied with section 59(2) of EMCA and regulation 17(2) of EMCA Regulations. It submitted that there was sufficient public participation as there were advertisements in the Daily Nation on November 14, 2018, the Star Newspaper on November 6, 2018, the Kenya Gazette on November 16, 2018 and on Radio Maisha on December 6, 2018 and members of the public were invited to submit their comments on the project within 30 days. A public hearing was held on September 25, 2019, was attended covered by the media and was attended by over 200 members of the public. According to the 2nd respondent there was also another meeting held on December 6, 2019 and among those in attendance were: Kenya Pipeline Company (KPC) officials, KENGEN officials and an expert from the 1st respondent who pointed out some areas that required to be addressed by the 2nd respondent and the latter moved to address them. According to 2nd respondent, these were reasonable opportunities for public consultation in the matter.

14. As for the lead agencies, the 2nd respondent submitted that it obtained approvals from the Ministry of Petroleum and Mining, Kenya Ports Authority, Kenya Maritime Authority, Kenya Petroleum Refineries Limited and Kengen Company Limited. The project is equally supported by the vast majority of the residents of Kipevu, Chaani and Migadini area of Changamwe Sub County as well as the immediate neigbhour to the project being Multiple Hauliers Limited. The Energy and Petroleum Regulatory Authority and the County Government of Mombasa shall only be approached once the EIA Licence is free of any challenges.

15. When responding to the challenge of why the EIA Licence was issued yet it had been denied initially, the 2nd respondent stated that the 1st respondent had issued conditions upon which it would grant the licence. These were: the 2nd respondent either redesign the project or seek a suitable alternative site. The 2nd respondent claims to have acceded to the demand to downscale the project from 30,000 MT to 15,000MT.

16. In conclusion, the 2nd respondent submitted that the project will not cause the displacement of the indigenous people in the area as the project shall only be carried out on one and half acres of the nine acres owned by the 2nd respondent and will not interfere with the population whatsoever. To buttress this position, the 2nd respondent stated that it shall employ the latest modern technology in the functions of the project and that the appellants are a very small sample of the population that is opposed to the project and their views do not necessarily have to prevail. The 2nd respondent asked the Tribunal to dismiss the Appeal and if there are any areas that require compliance, the Tribunal to specifically ask that those areas to be addressed.

17. On March 23, 2021, the 2nd respondent prayed for Witness Summons against Mr. Michael Sangoro, an officer of the Kenya Ports Authority (KPA) and the prayer was granted.

18. The Witness Mr Michael Sangoro filed a Witness Statement dated April 8, 2021 and annexed documents therein. In his evidence to the Tribunal, Mr Michael Sangoro, who works as the Head of Contracts & Conveyancing in the Board & Legal Services Division of the Kenya Ports Authority, stated that the residents of Chaani and Migadini are trespassers as the land belongs to KPA and was designated for port activities. He proceeded to state that the proposed project site is ideal for the said project as the designated area is for handling and storage of petroleum and petroleum products. Further to this, the witness gave evidence that in the past, KPA denied approval for establishment of facilities similar to the proposed project in areas that are designated as residential and proceeded to annex letters of such denial within Mombasa County.

19. In further evidence, the witness testified that there is a pipeline that passes through Migadini estate but the residents have knowingly constructed their houses atop the pipeline thus risking their lives. The witness gave evidence that when the appellants invaded the area, they found the same already zoned for petroleum storage, construction of tank farms and related petroleum activities.

20. Finally, the witness informed the Tribunal that there are two “very old unprosecuted suits” where the residents of Chaani and Migadini filed suits to oppose their eviction from the area. The two suits are: (1) MSA HCCC No 84 of 2002 Raphael Muli & others vs KPA, Municipal Council of Mombasa and Commissioner of Lands; and (2) High Court Constitutional Petition No 59 of 2015 Raphael Muli & others v County Government of Mombasa, OCPD Changamwe Police Division, Deputy IPG & AG.

Site Visit 21. The Tribunal conducted a site visit of the proposed project site and the neighbouring estates of Chaani and Migadini on June 17, 2021. The site visit was attended by the advocates for the parties, the parties and other representatives from all parties. The visit commenced with a briefing at the 2nd respondent’s project site in the presence of all parties and their advocates which briefing was followed by a guided tour of the project site and another guided tour inside the estates of Chaani and Migadini.

22. The Tribunal observed that the proposed project site is currently being used for storage of goods in containers stacked on each other and shares a boundary wall with a facility that trades in petroleum products while at the back side of the proposed project site is where the residential human settlements start. The residential settlements are quite crowded and there is no adequate space between one house and the next one and is Page 6 of 18 basically a typical low-income estate with some mud houses, others made of corrugated sheets, timber houses and a few stone walled houses.

Analysis 23. The Tribunal has considered the pleadings of the parties, the evidence, documents and the submissions filed in the consolidated appeals. The apparent dispute between the parties is whether the EIA Licence number NEMA/EIA/PSL/9219 was issued in accordance with the provisions of EMCA and the EIA Regulations thereof.

Public Participation 24. The appellants pleaded, called evidence and submitted at length on the inadequacy of the public participation that was conducted prior to the issuance of the disputed EIA Licence.

25. Section 59 of EMCA provides that,1. Upon receipt of an environmental impact assessment study report from any proponent under section 58(2), the Authority shall cause to be published in the Gazette, in at least two newspapers circulating in the area or proposed area of the project and over the radio a notice which shall state—(a)a summary description of the project;(b)the place where the project is to be carried out;(c)the place where the environmental impact assessment study, evaluation or review report may be inspected; and(d)a time limit of not exceeding sixty days for the submission of oral or written comments on the environmental impact assessment study, evaluation or review report. 2. The Authority may, on application by any person extend the period stipulated in sub-paragraph (d) so as to afford reasonable opportunity for such person to submit oral or written comments on the environmental impact assessment report.

3. The Authority shall ensure that its website contains a summary of the report referred to in subsection (1).

26. Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003, hereinafter called the ‘EIA Regulations’ provides that,“(1) 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 nationwide circulation; and(iii)making an announcement of the notice in both official and local languages in a radio with a nationwide 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 co-ordinator 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.”

27. In their evidence to the Tribunal, the appellants’ witnesses stated that there was no public participation for the project as they did not see the notices inviting them for the meeting before the date of the public hearings. They allege that the public meeting of September 25, 2019 was held at the 2nd respondent’s premises and was conducted in English language instead of Swahili which is the more common language among the members of the neighbouring community. Further to this, the appellants argued that there were hooligans at the meeting who prevented the appellants and their representatives from raising their points or ask questions as they otherwise wished. In any event, the meeting dwelled on the positive part of the project with limited right to ask questions over the disadvantages of the project.

28. In its bundle of documents produced at the hearing of the appeal, the 1st respondent has shown with particularity that it wrote to the lead agencies that are relevant to the disputed project on August 20, 2018 and a majority of them replied to the inquiry and gave their views on the EIA Study Report. There is also evidence of newspaper advertisements in the Daily Nation, The Star Newspaper, The Kenya Gazette and an advertising contract from Radio Maisha all which were inviting members of the public to give their views on the EIA Study Report for the disputed project.

29. During cross examination of the 1st respondent’s witness, it was not clear to her as to whether she could verify that there was attendance of the public hearing of May 17, 2018 and whether indeed there was truly a list signed by the attendees of the meeting of September 25, 2019.

30. On its part, the 2nd respondent produced signed lists of attendees to purported public hearings held on September 25, 2019 and allegedly attended by more than 100 residents. On cross examination by the appellants’ advocates, Mr Nura Hassan Rari, the witness for the 2nd respondent appeared unaware of the alleged public hearings and was taken aback by the revelation that one of the person’s whose name appeared in that list actually died in February 2018. He indeed revealed that he only received a list of the attendees of the purported public hearing held at Chaani and Migadini estates.

31. In further defence of the disputed EIA licence, the respondents submitted that the depth of the information provided by the appellants in objection to the contested project is clear evidence to the fact that they were well aware of the project and were engaged in consultations over the EIA Study Report. Further to this, the appellants’ witnesses were challenged on whether there were newspaper advertisements on the project but Mr Amon, witness for the appellants stated that he does not read newspapers. The 2nd respondent submitted that its duty was to ensure that the advertisements are carried in the newspapers and had no capacity to ensure that the witness reads the same.

32. Counsel Mr Ngara, in the written submissions to the appeals observes that, “…public participation in the EIA context entails disseminating information to members of the public about a proposed project, seeking their views on the same be it in writing or oral submissions and taking into consideration their views in decision making.” We agree with this submission.

33. Principle 10 of the Rio Declaration on Environment and Development, 1992 provides that:“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

34. In Constitutional Petition No 305 of 2012, Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others, the court set out the minimum basis for adequate public participation as follows:-“97. From our analysis of the case law, international law and comparative law, we find that public participation in the area of environmental governance as implicated in this case, at a minimum, entails the following elements or principles:a.First, it is incumbent upon the government agency or public official involved to fashion a programme of public participation that accords with the nature of the subject matter. It is the government agency or Public Official who is to craft the modalities of public participation but in so doing the government agency or Public Official must take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities.b.Second, public participation calls for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. In other words, no single regime or programme of public participation can be prescribed and the courts will not use any litmus test to determine if public participation has been achieved or not. The only test the courts use is one of effectiveness. A variety of mechanisms may be used to achieve public participation.Sachs J. of the South African Constitutional Court stated this principle quite concisely thus: “The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day, a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case. (Minister of Health and another v New Clicks South Africa (Pty) Ltd and others 2006 (2) SA 311 (CC))”c.Third, whatever programme of public participation is fashioned, it must include access to and dissemination of relevant information.See Republic v Attorney General & another ex parte Hon Francis Chachu Ganya (JR Misc App No 374 of 2012). In relevant portion, the Court stated: “Participation of the people necessarily requires that the information be availed to the members of the public whenever public policy decisions are intended and the public be afforded a forum in which they can adequately ventilate them.”In the instant case, environmental information sharing depends on availability of information. Hence, public participation is on-going obligation on the state through the processes of Environmental Impact Assessment – as we will point out below.d.Fourth, public participation does not dictate that everyone must give their views on an issue of environmental governance. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, especially in environmental governance matters must, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.e.Fifth, the right of public participation does not guarantee that each individual’s views will be taken as controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive. However, there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received as part of public participation programme. The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the constitutional box.f.Sixthly, the right of public participation is not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.”

35. The dispute before the Tribunal is majorly on whether the 1st respondent was right to issue an EIA licence for the construction of an LPG facility at the disputed project site which neighbours the densely populated area of Kipevu, Chaani and Migadini Estates.

36. Each party in this matter has taken a hard stance over what transpired during the public participation stage prior to the grant of the disputed EIA Licence. The appellant insists there was no public participation while the respondents take the position that there was adequate public participation only that a few individuals feel dissatisfied thus the filing of this appeal. Considering the conflicting positions in the matter, the Tribunal shall resort into evaluating the efficacy of the process that was followed and determine whether it achieved the intention of EMCA and the EIA Regulations thereof.

37. We have perused the documents produced during the hearing of the appeal with respect to the element of public participation and considered the evidence uttered by the various witnesses for the parties. The law requires that the lead agencies and the members of the public do participate in the EIA process through various methods. These include sending written memoranda, filling questionnaires, public hearings among other methods. The Tribunal having conducted a site visit of the project and the neighbouring properties established that indeed the neighbouring estates of Migadini and Chaani are largely the typical informal settlements found in many low-income areas in many major cities and towns in Kenya.

38. Whereas it would be legally expected that all persons in the Republic of Kenya should be able to access a copy of the Kenya Gazette, read advertisements in the newspapers, listen to announcements on radio and read notices posted near the project site, it is practically impossible for residents of the informal settlements such as Chaani and Migadini estates to access some of those methods inviting them for public participation. It would be over ambitious for the residents to be expected to access Page 12 of 18 the Kenya Gazette or buy newspapers every now and check out the details of the EIA study reports that are coming up for consideration.

39. To communicate more effectively in such informal settlements, it would be expected that the project proponent makes deliberate efforts to invite members of the public through notices posted within areas that are closest to the proposed project site. The appellants have argued that there were no notices posted within their estates to allow them get notice of the meeting and to prepare to attend to the same and contribute to the discourse effectively. There was no evidence of such notices during the hearing.

40. The appellants adduced evidence to the effect that the public hearing of September 25, 2019 which was called by the 1st respondent at the 2nd respondent’s property was conducted in English language instead of the more common Kiswahili Language which most of the residents are familiar with. Further to this, the appellants stated that the said meeting was engulfed in tension as there were hooligans who had been placed strategically among the attendees to shout down any participation from the persons who were opposed to the project.

41. In his letter to the Director General of the 1st respondent, the County Commissioner Mombasa County wrote on October 15, 2019:“Director GeneralNational Environmental Management AuthorityPO Box 67839-00200Nairobi.RE: Nema Public Hearing Meeting Held on 25Th September 2019 – Lpg Terminal For Focus Container FreightEnclosed herewith please find minutes for the above hearing that I chaired on the stated date.Attendance was quite good from both sides even though the atmosphere was highly charged. Majority of Chaani and Migadini residents rejected the proposed project and others supported it. One thing that stood out was the issue of safety and possible displacement of residents within Kipevu. (Emphasis supplied)However, I propose to you as a Government Agency charged with the responsibility to handle such issues independently through experts and look into the aspect of safety of the neighbourhood.I am certain your findings will go a long way in informing safety measures of the massive project and re-assuring both the proponents and the neighbours.SignedGilbert B KitiiyoCounty CommissionerMombasa County”

42. Going by the letter of the County Commissioner who is probably the highest ranking officer of the National Government at the County level, it is possible to conclude that indeed there was a public hearing on September 25, 2019 but the letter also indicates that, “Attendance was quite good from both sides even though the atmosphere was highly charged”. In our view, this statement does corroborate the evidence of the appellants witnesses that there was tension in the meeting and they were prevented from adequately participating in the said meeting.

43. Put differently, what is the quality of a public hearing conducted in a tense environment? How effective is such a hearing as a tool of public participation in EIA process? In the Mui Coal Basin Case (ibid), the court stated that, “Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition.” Failure to take into account the requirements of public participation, as required by the law is fatal to the decision. See Sam Odera & 3 others v National Environmental Management Authority & another (2006) eKLR.

44. The Tribunal notes that there is no evidence that the respondents called any other public hearing after the impugned hearing of September 25, 2019 to correct the legally ineffective public hearing cited above. The public hearing cannot be just mere theatrics to tick the Constitutional Box of public participation. Whereas it is true that the 1st respondent could not be simply vetoed by the views of the populace, it is mandatory for the populace to be heard prior to the grant of an EIA licence. The upshot of the above is that the Tribunal finds that the public participation for the disputed project was not done in accordance with EMCA and the EIA Regulations.

Is the Property Site Suitable for the Proposed Project? 45. The appellants contend that the proposed project site adjoins densely populated residential areas which are inhabited by many people and there are many schools which are within the radius of 80 meters to 800 metres from the proposed project site. According to the appellants, the project is a great danger to the residents as an accident of fire would easily consume human life and property at the said residential estates.

46. In its letter dated February 3, 2020 to the 2nd respondent, the 1st respondent advised the project proponent to either redesign the project or seek an alternative site. There were a few reasons for these proposals among them the fact that, the 1st respondent and the relevant lead agencies had reviewed the EIA Study Report and found that, “The proposed project site is in close proximity with a densely populated residential area hence exposing the public to high risk in case of a related emergency”.

47. Condition 2. 17 of the EIA Licence conditions requires that, “The proponent shall site the flare-stack vent away from the neighbouring residential homes, VTTI and KOSF storage tanks”.

48. The Site Description section of the EIA Study Report describes the site as follows:“The proposed project site is within Focus Freight Station compound and is currently under use for clearance and storage of goods. The plot lies in Kipevu area in Changamwe in a notified industrial area, within the Port Area of Mombasa. The site is located near approximately 2km away from the Port of Mombasa and approx 4km from Moi International Airport. The area hosts other Oil terminals such as Vitol Tank Terminal International (VTTI) and the parastatal firm, Kenya Pipeline Company. Abutting the plot to the North is the densely populated Chaani/Migadini Residential Estates composed of both permanent and temporary human settlements and schools.”We have found it necessary to set out the site description in full as the same constitutes part of the high contestation in this matter and it is now common ground that the proposed project site is situate within a densely populated area.

49. In their evidence to the Tribunal, the respondents were quite unequivocal that the project site is within what is zoned as a danger zone and is set aside to handle the kind of industrial use as what is proposed by the 2nd respondent. As a matter of fact, the respondents gave evidence that the neighbouring property, owned by a company called VVTI, is engaged in the same business as proposed by the 2nd respondent yet there has never been any incident of fire, negative effect whatsoever or a suit instituted in any forum for closure of the facility.

50. It was the 2nd respondent’s evidence that it was not going to displace any person from the residential estate since it only required to utilize one and half of the nine acres that it owns at the proposed project site and was going to use the latest modern technology at the facility to ensure the safety of the residents of the neighbouring properties.

51. In his evidence to the Tribunal, Mr Michael Sangoro, who works as the Head of Contracts & Conveyancing in the Board & Legal Services Division of the KPA, the witness stated that the residents of Chaani and Migadini are trespassers as the land belongs to KPA and was designated for port activities. According to him, the residents and the Appellants are squatters on KPA property in a zone that is designated to handle projects such as the proposed one. He indeed, testified that there is a pipeline that passes through Migadini estate but the residents have constructed their houses on the same in spite of being aware of the risk involved.

52. The jurisdiction of the Tribunal is well set out under section 129 of EMCA and the said jurisdiction does not include making determination on the ownership of land or title to the same. The mandate to determine the title, occupation and use of a property lies elsewhere and the Tribunal cannot usurp such powers.

53. While the Tribunal appreciates that there may be a dispute over the property occupied by the residents of Chaani and Migadini Estates, it cannot venture into the determination of whether the residents have any rights to occupy the said property or whether the same is owned by KPA or any other person. The powers of the Tribunal only extend to making an inquiry into whether the EIA Licence granted to the 2nd respondent does expose the residents to living conditions that are dangerous or negate the rights of the residents to live in a clean and healthy environment. If the Tribunal finds that such a licence exposes those residents to danger, it has a duty to protect them as long as they are there but this is not to be construed as giving the residents title to the disputed property or as a bar from eviction from the property in accordance with the law if the property indeed belongs to someone else.

54. It has indeed been argued during the hearing of the appeal that many households even within the residential settlements of Chaani and Migadini use gas cylinders in their houses. Gas cylinders and LPG are not necessarily dangerous or lethal per se, it all depends on how the same is handled. The fears of the Appellants as we understand them is that any fire accidents which may result from the mass storage or processing of the LPG site adjoining the residential settlements would have deleterious effects and fatal consequences on human life and property.

55. It is not enough for the respondents to argue that the proposed project site is a dangerous zone and disregard the human life and property that could be affected by the negative impacts of the proposed project. The Tribunal cannot close its eyes or shut its doors to the residents who are residing in the area adjoining the proposed project site. It is for the relevant authorities to take the requisite steps to ensure there is no human settlement in the areas where they are issuing EIA licences for such dangerous substances.

56. At this point in time, the facts are that the initial EIA Study Report was conducted on the proposal to set up an LPG project with a capacity to handle 30,000 MT. The appellants opposed the licensing of that project and the 1st respondent equally communicated its concerns to the 2nd respondent citing the danger posed to the neighbouring residential estate. The witness from KPA, equally confirmed to the Tribunal that KPA also does not give consent for approval of projects such as the one that had been applied for by the 2nd respondent, if they are proposed to be undertaken in residential areas. Eventually, the 2nd respondent ceded ground and downsized its project to handle 15,000 MT and an EIA Licence was granted for an LPG project with the revised capacity.

57. The Tribunal having conducted a site visit to the disputed project site appreciates the close proximity between the proposed project site and the residential estates of Chaani and Migadini. The initial proposed project of 30,000 MT was opposed by both the 1st respondent and the appellants on safety issues among other reasons. Upon downsizing the same to 15,000 MT, the 1st respondent proceeded to grant the EIA Licence to the 2nd respondent without subjecting the same to a fresh EIA Study.

58. KPA being a key lead agency in the licensing of the proposed project submitted to us that it denies licences for set up of LPG projects of the nature in this suit to applicants seeking to conduct their businesses in areas designated as residential areas. This is an obvious indicator of the impacts that such a facility would have on the residents of such an area. The impacts of the 15,000 MT ought to be addressed in an EIA Study process and the residents be allowed to effectively participate in the same before the issuance of an EIA Licence, if any.

59. Considering the poor quality of the public participation in the initial application for the EIA licence for the 30,000 MT project and the vehement objection to the same, the 1st respondent ought not to have granted the EIA Licence to the 2nd Respondent without subjecting the downsized project to a fresh EIA study. Should the impacts of the downsized project be dangerous to the residents or portend any other dangers to the environment, the 1st respondent has the mandate to do what is right to preserve the environment. The 1st respondent does not necessarily need to grant an EIA Licence then call for a fresh EIA Study report or further information where it is clear beforehand that there are gaps that require to be addressed by the project proponent.

60. We are emboldened in making that holding by section 63 of EMCA which provides that,“The Authority may require any proponent of a project to carry out at his own expense further evaluation or environmental impact assessment study, review or submit additional information for the purposes of ensuring that the environmental impact assessment study, review or evaluation report is as accurate and exhaustive as possible.”This section covers the period before the issuance of an EIA Licence whereas section 64 of EMCA covers the period after the issuance of the licence.

61. Considering the above, we find that the 1st respondent erred in granting the EIA Licence to the 2nd respondent without subjecting the downsized project to a fresh EIA Study Report.

What Orders should the Tribunal Make? 62. The appellants have made numerous prayers to the Tribunal among them a prayer that the 2nd respondent be restrained from setting up an LPG facility in any residential area within Mombasa County. The Tribunal is hesitant to issue blanket orders as to do that would prevent the relevant regulatory authorities from effectively carrying out their work which is their statutory mandate. The Tribunal being a statutory body to hear appeals from specific disputes touching on specific licences would serve the public better when approached to resolve specific disputes.

Orders 63. The notices of appeal being NET 22 of 2020 dated June 17, 2022, and NET 24 of 2020 and NET 25 of 2020 both dated June 29, 2020 are allowed in the following terms:i. The EIA licence number NEMA/EIA/PSL/9219 issued to the 2nd respondent on April 30, 2020 is hereby cancelled and/or revoked.ii. Each party to bear own costs.

DATED AND DELIVERED AT NAIROBI, THIS 12TH DAY OF SEPTEMBER 2022. Mohammed Balala …………………………………………………ChairpersonChristine Kipsang…………………………………Vice ChairpersonBahati Mwamuye……………………………………………………………………MemberWaithaka Ngaruiya……………………………………………………………MemberKariuki Muigua……………………………………………………………………Member