[2024] KENET 479 (KLR)

Nyamgutu & 5 others v National Environment Management Authority & another (Tribunal Appeal 009 of 2022) [2024] KENET 479 (KLR) (8 February 2024) (Judgment)

Neutral citation: [2024] KENET 479 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 009 of 2022

Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair, Kariuki Muigua, Duncan Kuria & Ronald Allamano, Members

February 8, 2024

Between

Bonface Ochieng Nyamgutu

1st Appellant

Collins Kinuthia Kiarie

2nd Appellant

Joseph Mqalusha Abedi

3rd Appellant

Maula Mwijuma Kibwana

4th Appellant

Mohamed Shafi Mohamed

5th Appellant

Naaman Ali Said

6th Appellant

and

National Environment Management Authority

1st Respondent

Aveitas Investment Company

2nd Respondent

Judgment

A. Introduction 1. The Appellants moved the Tribunal by way of the Notice of Appeal and Statement of Appeal both dated 24th February 2022 seeking cancellation of EIA License No: NEMA/EIA/PSL/15690 issued to the 2nd Respondent on 24th January 2022 for the establishment of a 30,000MT Liquefied Petroleum Gas Mounded Storage Depot(construction phase one entails 25,750MT and phase2 4,250MT), 1oNo. Horizontal Cylindrical Mounded Bullet Tanks, NPS 12”/DN 300LPG import pipeline from the New Kipevu Oil Terminal Common User Manifold (KOT-CUM) via Kenya Ports Authorities and Kenya Railways Company wayleaves, tanker-truck loading gantry with 6No. Bays, 1592m2 fire water storage tank, vehicle parking, associated facilities and amenities Located at Plot No. Mombasa LR No. MN/VI/4794 in Kibarani, Changamwe Su-County, Mombasa County.

2. Contemporaneous to the filing of the Notice of Appeal, the Appellants filed their respective witness statements all dated 24th Februaary 2022. Subsequently, the Appellants filed the witness statement (expert report) prepared by Stephen M. Rukwaro and dated 8th July 2022.

3. In summary, the Appeal raises the following grounds:a.Failure by the 2nd Respondent to carry out any public participation and failure by the 1st Respondent to ensure that public participation was done before the issuance of the license in question;b.Failing to assess safety, security and environmental concerns before issuance of the impugned license;c.Failing to consider that the project is very close to navigation channel, a major highway- the only road connecting the City of Mombasa with the Mainland West and the only entrance to the port and any incident or accident would have devastating effect on the coastal economy that is heavily dependent on the said road and port as well;d.Failure by the Respondents to consider that the project operations will affect air quality on micro-scale through exhaust emissions from trucks as well as fugitive emissions (leakages);e.Failure by the respondents to simulate potential disaster scenarios which for liquefied petroleum gas (LPG) include ‘Boiling Liquid Expanding Vapor Explosions’ (BLEVE) which may arise in such projects and the containment measures thereof. Minimum safety distances (In case of worst case of a BLEVE scenario) to the facilities and residential areas have not been assessed. The surrounding areas of Kibarani, Chaani and Bahati residential areas within the BLEVE radius;f.Failure by the respondents to respond on or act on several complaints by the Appellants concerning the failure to incorporate overall petroleum standards, the hazards of the road transport access and exit through Highway have not been appreciated and no alternatives have been considered;g.Failure of the Respondents to consider that the project will cause air and noise pollution that will adversely affect the health of the residents living near the site. The potential air pollution risks to respiratory systems increasing chances of asthma and bronchitis attacks; andh.Failure by the Respondents to consider impact on marine bio-diversity and the social economic activities of the fishermen along Makupa creek in case of marine pollution

4. The appeal did not go unopposed, and in that regard the 1st Respondent filed its Reply to appeal dated 19th May 2022. Equally, the 2nd Respondent filed its Reply dated 20th May 2022 and the witness statement of Steve Onserio Nyamori of even date. The 2nd Respondent also filed by the expert report dated 3rd August 2022 prepared by James Opindi and Paul Mwaponda.

5. The Appeal was heard by way of oral hearing whereby all parties presented their respective witnesses who gave oral evidence.

B. Analysis And Determination 6. Having carefully considered all the pleadings, documents and evidence tendered by parties, we have isolated the following as the issues arising for determination:i.Whether there was sufficient public participation before the issuance of the impugned EIA license.ii.Whether the Environmental Impact Assessment Study Report sufficiently addresses the environmental risks posed by the proposed project.

Whether there was sufficient public participation before the issuance of the impugned EIA license. 7. It is the Appellants’ case that the Respondents did not conduct public participation before the impugned EIA license was issued to the 2nd Respondent. Public participation can be defined as the process of engaging the public or a representative sector while developing laws and formulating policies or making decisions that affect them. We are guided by the holding of the High Court in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, where a five-judge bench defined public participation as follows:‘Courts have also dealt with the concepts of public participation and stakeholders’ consultation or engagement. The High Court in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others [2014] eKLR while referring to the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) adopted the following definition of public participation: -“According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process.”Public participation therefore refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms. At times it may include consultations. The Black’s Law Dictionary 10th Edition defines ‘consultation’ as follows: -‘’The act of asking the advice or opinion of someone. A meeting in which parties consult or confer.’’

8. Article 10 of the Constitution imposes an obligation on the State, that is to say every State organ, State officer or public officer to facilitate a consultative process with the public in the State organs or State officers' processes, application of any law, public policy or decision making. Separately and regarding matters of the environment, Article 69 of the Constitution also imposes parallel obligations on the state to encourage public participation in the management, protection, and conservation of the environment.

9. Internationally, Principle 10 of the Rio Declaration on Environment and Development provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level and that each individual shall have the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Additionally, Principle 22 provides for the effective participation of indigenous people and their communities and other local communities in the achievement of sustainable development.

10. A five-judge bench of the High Court in the case of Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, succinctly explained the reasoning behind having public participation as a constitutional imperative as follows:‘It may be tempting to ask why the law and indeed the Constitution generally imposes this duty of public participation yet the State is generally a government for and by the people. The people elect their representative and also participate in the appointment of most, if not all public officers nowadays. The answer is, however, not very far. Our democracy contains both representative as well as participatory elements which are not mutually exclusive but supportive of one another. The support is obtained even from that singular individual.We also have no doubt that our local jurisprudence deals at length with why the Constitution and statute law have imposed the obligation of public participation in most spheres of governance and generally we take the view that it would be contrary to a person's dignity (see Article 28) to be denied this constitutional and statutory right of public participation.’ (emphasis ours)

11. Therefore, the importance of public participation cannot be gainsaid. In Matatiele Municipality v President of the Republic of South Africa (2) (CCT73/05A), the South African Constitutional Court stated as follows: -‘A commitment to a right to…public participation in governmental decision-making is derived not only from the belief that we improve the accuracy of decisions when we allow people to present their side of the story, but also from our sense that participation is necessary to preserve human dignity and self-respect…’

12. Similarly, the same Court in the case of Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 others, CCT 86/08 [2010] ZACC 5 discussed the importance of public participation as follows: -“.…engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands. In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.

13. Public participation is therefore regarded both as a proper and fair conduct of democratic government in public decision-making activities and as a fundamental component of the EIA process. Citizens have a right to be involved in the decision making about the planned interventions that will affect their lives, and the opinions and views of experts should not be the sole consideration in decisions about planned interventions.

14. Indeed, looking at international law and comparative law and how this right of public participation has been contextualized, it is proper to conclude that public participation in environmental law issues and governance has risen to the level of a generally accepted rule of customary international law. Thus, in Kenya, in addition to the explicit constitutionalization (sic) of this right in Articles 10, and 69 of our Constitution, the right to public participation in environmental governance is further entrenched under Article 2 (5) of the Constitution.

15. We are also aware that Kenya has embraced the principles of sustainable development. These are not only captured in the Constitution but also in section 3(5) of the EMCA. Section 3(5) of EMCA recognizes the principle of public participation in the development of policies, plans and processes for the management of the environment as one of the key principles of sustainable development.

16. Having opined as hereinabove, we are bound to review the evidence on record to determine whether there was sufficient public participation before the issuance of the impugned EIA license. Towards that end, we are bound by the decision of the High Court in Mohamed Ali Baadi and others v Attorney General & 11 others, supra where a Five-Judge Bench laid down the test of determining the adequacy of public participation in environmental matters. The Court held as follows:‘The standard of ascertaining whether there is adequate public participation in environmental matters, in our view, is the reasonableness standard which must include compliance with prescribed statutory provisions as to public participation. This means, for example, if you do not comply with the set statutory provisions, then per se there is no adequate public participation. And, the question is not one of substantial compliance with statutory provisions but one of compliance.’ (emphasis ours)

17. Based on the above holding of the Court, we are obligated to review the evidence on record against the prescribed statutory provisions on public participation to determine whether there was compliance with the same. In that regard, we note that Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 imposes an obligation on the proponents of any project in consultation with the 1st Respondent to seek views of persons who may be affected by the project. The said regulation states as follows: 17. Public participation(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.

18. Additionally, under Regulations 21 and 22, prior to the making of any decision on the ESIA Study Report, the 1st Respondent is again required to involve the public. The 1st Respondent is specifically obligated to invite the public, through the print media and in a prescribed format, to make oral and written comments on the Report. Further, Regulation 20 requires the 1st Respondent to submit a copy of the report to the relevant lead agencies for their comments.

19. Having reviewed the evidence on record, we note that the 2nd Respondent has provided evidence of public participation in form of duly filled questionnaires which sought views of the members of the public on the proposed project. Additionally, the 2nd Respondent published an advertisement in the Star Newspaper on 28th October 2020 and the Daily Nation on 29th October 2020 inviting members of the public to give their views on the proposed project. A similar advertisement was run on Bahari Radio Station on 29th October 2020. A further advertisement was published in the Kenya Gazette on 23rd October 2020 inviting members of the public to submit their comments on the proposed project.

20. We also note that pursuant to its mandatory obligation under Regulation 20, the 1st Respondent submitted a copy of the report to the relevant lead agencies for their comments.

21. That said, it is our finding that there was no full compliance with the prescribed statutory framework on public participation hence falling short of the required standard of public participation in environmental matters. First, whereas the Respondent have provided evidence of public participation meetings in compliance with Regulation 17(2)(b), no evidence has been placed before the Tribunal to show compliance with Regulation 17(2)(c).

22. Under the said regulation, the proponent of the project is required to 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. Evidence of such notices was not availed. Without prior and adequate notice of the public participation meetings, it follows that some members of the public were denied the opportunity to participate in the public participation exercise. This waters down the quality of public participation conducted by the Respondents.

23. Second, no evidence was placed before the Tribunal to show that the proponent of the proposed project publicized the project and its anticipated effects and benefits by 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. This is a mandatory requirement under Regulation 17(2)(a)(i). The only evidence provided is an alleged photograph of the 2nd Respondent’s consultant purportedly mounting a poster captured at page 131 of the ESIA Report. The said photograph is not clear and we cannot tell the contents of the alleged poster.

24. Third, whereas there was publication of a notice of the proposed project in two newspapers of nationwide circulation, the same was not done for two successive weeks as required under Regulation 17(2)(a)(ii).

25. Lastly, under Regulation17(2)(d) the proponent of the proposed project is mandated to ensure, in consultation with the Authority that a suitably qualified coordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority. There was no evidence placed before us to show that such a qualified coordinator was appointed.

26. The upshot of the foregoing is that the first issue for determination answers in the negative; there was no sufficient public participation before the issuance of the EIA license as there was no compliance with the applicable legal framework on public participation. As stated in Mohamed Ali Baadi and others v Attorney General & 11 others, supra, the question is not one of substantial compliance but one of compliance.

Whether the Environmental Impact Assessment Study Report sufficiently addresses the environmental risks posed by the proposed project 27. It is the Appellants’ contention that there was failure to assess safety, security and environmental concerns before the issuance of the EIA license. Apart from making a blanket statement, the Appellants have not specified the concerns which were not addressed.

28. That said, we have reviewed the ESIA study report and the oral evidence presented by parties, and find that the report adequately addresses the impacts of the project on safety, security and environment. Further, under the direction of the 1st Respondent, the 2nd Respondent undertook a Quantitative Risk Assessment to quantify the project risks and assessed the risk exposure to the proposed project affected persons. Further, the 1st Respondent has also provided an emergency preparedness and response plan, which we find to be satisfactory.

29. The Appellants also allege that the project is close to a navigation channel, a major highway-the only road connecting the City of Mombasa with the Mainland West and the only entrance to port and any incident or accident would have a devastating effect on the coastal economy that is heavily dependent on the said road and port. Equally it is our finding this concern on safety is adequately addressed by both the ESIA study report and the emergency preparedness and response plan. Further, the location of the project is in compliance with the relevant zoning laws.

30. It is also urged by the Appellants that the Respondents failed to consider that the project’s operations will affect air quality on micro-scale through exhaust emissions from trucks as well as leakages. Regarding emissions from trucks, the law places the responsibility of controlling air pollution by motor vehicles on the owner of the vehicle. This is provided under Section 82 of EMCA. Regarding leakages, it is our finding that the report and the subsequent improvements thereof have provided sufficient safeguards and mitigation measures to address any leakages.

31. The Appellant also allege that that project will cause air and noise pollution that will adversely affect the heath of the residents living near the site. We find this claim to be without merit as the area where the proposed project is to be implemented is already zoned for industrial purposes. In any event condition 2. 9 of the EIA license provides that the proponent shall ensure strict adherence to the provisions of the Environmental (Air Quality) Regulations of 2014 while condition 2. 21 requires the proponent to ensure compliance with the provisions of the Environmental Management and Coordination (Noise and Excessive Vibrations Pollution Control) Regulations of 2009.

32. Lastly, the Appellants allege that the Respondents failed to consider impact on marine biodiversity and the social economic activities of the fishermen among Makupa Creek in case of pollution. Having analyzed the evidence, we take cognizant of the fact that proposed project’s marine footprint is limited to the LPG importing vessels which are well regulated and governed by the relevant national and international laws. Further, in case of accidental leakages, the LPG vaporizes into gaseous form under normal atmospheric conditions and hence very low likelihood of spillage into the ocean.

33. In addition, the 2nd Respondent undertook an ecological assessment of the impacts of the project on the marine environment and therefore the Appellants claim is without merit.

34. To conclude on this issue, it would be remiss for us not to point out that the responsibility of a project proponent towards the environment does not end with the issuance of an EIA licence. The ESIA process continues through the EIA Licence conditions and which form the premise on which the 1st Respondent and other lead agencies can monitor compliance by the proponent and issue improvement orders where necessary. Indeed, the EIA license conditions provides that the proponent shall comply with the 1st Respondent’s improvement orders throughout the project cycle.

35. In view of the foregoing, it is our finding that Environmental Impact Assessment Study Report sufficiently addresses the environmental risks posed by the proposed project.

C. Final Disposition 36. Under Section 129(3) of EMCA, upon hearing any appeal, the Tribunal has powers to issue orders that are necessary for the enhancement of the principles of sustainable development. This is in line with Article 159(2)(e) which obligates Courts and Tribunals to promote the values and the principles of the Constitution while exercising judicial authority. Among these principles is Sustainable development provided under Article 10(2)(d) of the Constitution.

37. Further, Section 3(5) of EMCA provides public participation as one of key principles of sustainable development. As such, having found that there was no sufficient public participation before the issuance of the impugned EIA license the Tribunal allows the Appellant’s Appeal in the following terms:a.EIA License No: NEMA/EIA/PSL/15690 issued to the 2nd Respondent on 24th January 2022 for the establishment of a 30,000MT Liquefied Petroleum Gas Mounded Storage Depot(construction phase one entails 25,750MT and phase2 4,250MT), 1oNo. Horizontal Cylindrical Mounded Bullet Tanks, NPS 12”/DN 300LPG import pipeline from the New Kipevu Oil Terminal Common User Manifold (KOT-CUM) via Kenya Ports Authorities and Kenya Railways Company wayleaves, tanker-truck loading gantry with 6No. Bays, 1592m2 fire water storage tank, vehicle parking, associated facilities and amenities Located at Plot No. Mombasa LR No. MN/VI/4794 in Kibarani, Changamwe Su-County, Mombasa County is hereby cancelled for want of sufficient public participation.b.Each party to bear their own costs.

DATED AND DELIVERED AT NAIROBI, THIS 8th DAY OF FEBRUARY 2024EMMANUEL MUMIA - CHAIRMANWINNIE TSUMA - VICE-CHAIRKARIUKI MUIGUA - MEMBERDUNCAN KURIA - MEMBERRONALD ALLAMANO - MEMBER