[2021] KENET 656 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.NET 12 OF 2019

ORATA INTERNATIONAL LIMITED............................................................APPELLANT

VERSUS

DIRECTOR GENERAL

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY................RESPONDENT

JUDGMENT

BACKGROUND TO THE DISPUTE

1. The Appellant instituted the present appeal vide a Notice of Appeal dated 2nd May 2019. The appeal is against an Environmental Restoration Order dated 5th March 2019 issued by the Respondent for the closure of the Appellant’s factory situated at Kajiado Parcel No. NOON KOPIR/TRADING CENTRE/209. The Appellant seeks the following orders from the Tribunal:

a) Matter be certified urgent (Sic);

b) Rescind, vary, revoke, alter the stop order dated 5th March 2019;

c) Extension of time to comply and move the factory; and

d) Appointment of an Environment Assesor/Investigator.

2. The appeal was filed contemporaneously with a Notice of Motion application dated 2nd May 2019 filed under certificate of urgency. The Appellant seeks the following orders in the application:

a) That this Honourable Tribunal be pleased to certify this application as urgent and service thereof be dispensed with in the first instance;

b) That this honourable tribunal be pleased to rescind, alter, vary and/or revoke the stop order dated 5th March 2019;

c) That this honourable tribunal be pleased to appoint an environment assessor/inspector;

d) That this honourable tribunal be pleased to extend time to allow the appellant relocate; and

e) That the costs of the application be in the cause.

3) The Appellant states in its Notice of Appeal that the grounds of appeal are set out in the Notice of Motion dated 2nd May 2019 and the supporting affidavit. On 4th July 2019, Counsel for the Appellant and the Respondent appeared before the Tribunal and recorded a consent to compromise the application and the appeal in the following terms:

i. That the Appellant’s factory be reopened for a period not exceeding six months from today (4/12/2019) to allow for completion of unfinished processes and movement (relocation) of the machinery;

ii. That the factory operating hours shall be limited from 6 a.m to 6 p.m;

iii. That the Appellant shall ensure mechanisms for proper control of dust and noise are in place;

iv. That upon expiry of the six months period (by 4/12/2019) the factory shall close and the decommissioning plan to be approved by the Respondent by 4/10/2019;

v. That no order as to costs of the application and appeal;

vi. That mention to confirm compliance of consent order on 5/12/2019.

4. On 11th July 2019, a Notice of Change of Advocates dated 10th July 2019 was filed on behalf of the Appellant and the firm of Olando Okello & Lusenaka Advocates took over representation of the Appellant in the appeal. On 14th August 2019, the Appellant filed a Notice of Motion application dated 13th August 2019 seeking to review, discharge and/or set aside the orders issued on 4th July 2019. On 4th September 2019 when the application dated 13th August 2019 come up for hearing, the parties compromised the application by recording a consent to allow the order sought in the application with no order as to costs.

5. On 13th December 2019, the Appellant filed a Notice of Motion application seeking orders to restrain the Respondent from interfering with its operations pending the hearing and determination of this appeal. When the application came up for hearing, the Appellant’s Advocates withdrew the application.

6. The Appellant filed a list of witnesses, witness statement of Jacob Iyadi Wambulwa and a list and bundle of documents on 5th March 2020.

RESPONDENT’S REPLY

7. The Respondent responded to the appeal vide a Statement of Reply to Appeal dated 27th January 2020. The Respondent contends that it is empowered by statute to ensure that all Kenyans enjoy the right to a clean and healthy environment and it cannot be accused of harassing the Appellant on the basis of discharging its statutory function.

8. The Respondent further contends that it issued the environmental restoration order dated 5th March 2019 pursuant to its statutory mandate. It argues that it issued several improvement notices to the Appellant as a result of dust and noise pollution from its facility leading to the Environmental Restoration Order dated 5th March 2019. On this basis, the Respondent contends that the Tribunal should not curb the statutory powers of the Respondent while the same are being carried out rationally, legally and properly.

9. The Respondent contends that it was convinced by the Appellant of its intention to relocate its facility from the disputed area wherein the Appellant even went ahead to submit a decommissioning plan, but to no vail. The Respondent argues that the Appellant appears unwilling to relocate.

10. On this basis, the Respondent prays that the Appellant’s appeal be dismissed with costs.

SUBMISSIONS

11. In support of the Appeal, the Appellant filed written submissions dated 28th September 2020. On whether it has injured the environment as alleged by the Respondent, the Appellant submits that it has always undertaken its operations diligently and appropriate measures are put in place to ensure sustainable development and environmental management.

12. The Appellant further submits that it has always been open to fair supervision of its activities by the Respondent.

13. The Appellant contends that the Respondent has not demonstrated to the Tribunal how its continued operations have injured the environment as required and that the Environmental Restoration Order dated 5th March 2019 for closure of its factory was not warranted. The Appellant submits that the Environmental Restoration Order should be rescinded and/or revoked.

14. The Appellant thus prays that its appeal be allowed with costs.

15. The Respondent did not file written submissions.

ISSUES FOR DETERMINATION

16. Having Considered the Appellant’s appeal instituted vide a Notice of Appeal dated 2nd May 2019, the witness statement and Appellant’s bundle of documents, the Respondent’s Statement of Reply to Appeal dated 27th January 2020 and the Appellant’s written submissions dated 28th September 2020, the Tribunal will address the following issues:

a) Whether the Appellant’s appeal is merited; and

b) What orders should the Tribunal make?

A. Whether the Appellant’s Appeal is Merited

17. The Environmental Management and Co-ordination Act (EMCA), No. 8 of 1999 establishes the National Environment Management Authority with the object and purpose of exercising general supervision and co-ordination over all matters relating to the environment. This mandate further flows from the Constitution which enshrines the right to a clean and healthy environment under article 42 and sets out several obligations by the state in respect of the environment under article 69.

18. In discharge of its functions, EMCA grants certain powers to NEMA and further sets out various tools to be employed by NEMA towards its mandate. Under section 108 of EMCA, NEMA may issue and serve on any person in respect of any matter relating to the environment, an environmental restoration order. Under section 108 (2) of EMCA, an environmental restoration order may be issued to inter alia require the person to whom it is served to restore the environment as near as it may be to the state in which it was before the taking of the action which is the subject of the order and prevent the person on whom it is served from taking any action which would or is reasonably likely to cause harm to the environment.

19. In discharge of its statutory mandate pursuant to section 108 of the EMCA, the Respondent issued an Environmental Restoration Order dated 5th March 2019 to the Appellant for the immediate closure of the factory situated at Kajiado Parcel No. NOON KOPIR/TRADING CENTRE/209. The reasons for issuance of the environmental restoration order are detailed therein and include:

a) The Appellant’s facility has been operating for 24 hours a day thereby causing nuisance at night to the neighbours and aggravating environmental pollution;

b) Failure by the Appellant to comply with improvement orders issued by the Authority; and

c) Failure by the Appellant to mitigate air and noise pollution from its facility.

20. The evidence adduced before the Tribunal shows that the Respondent had on several occasions raised environmental concerns in relation to the Appellant’s activities. The Respondent issued an improvement order dated 25th October 2016. The Respondent alleges that the Appellant failed to adhere to the improvement order culminating to the issuance of the environmental restoration order dated 5th March 2019.

21. While EMCA grants powers to the Respondent to do certain acts towards environmental conservation, the Act envisions such acts being undertaken within the parameters defined by law. Section 108 (5) of EMCA provides that, in exercising powers to issue environmental restoration orders, the Authority shall:

a) Be guided by the principles of good environmental management in accordance with the provisions of the Act; and

b) Explain the right of appeal of the persons against whom the order is issued to the Tribunal or if dissatisfied with the decision of the Tribunal, to superior courts.

22. The Tribunal finds that the Environmental Restoration Order issued by the Respondent dated 5th March 2019 satisfies the content requirement of section 109 of EMCA since:

a) It specifies the activity to which it relates;

b) It is addressed to the Managing Director of the Appellant;

c) It specifies the time which it comes into effect; and

d) It advises the Appellant of its right of appeal to the Tribunal.

23. The Appellant however, in its appeal challenges the environmental restoration order and contends that prior to its issuance, it was not informed of its offence and was further not accorded an opportunity to be heard. It further contends that it has been diligent in exercising various environmental audits approved by the Respondent for purposes of mitigating noise and air pollution. The Appellant contends that the environmental restoration order dated 5th March 2019 was issued unprocedurally and is thus unlawful.

24. In discharging its mandate under EMCA, there is an implied duty on the part of the Respondent to act in a fair manner. This was succinctly captured in Republic –vs- National Environmental Management Authority Exparte Hakika Transport Services Ltd (2012) eKLR where the court observed as follows:

“Although EMCA does not prescribe the procedure for issuing a restoration order, NEMA would be taking an administrative action and must observe the provisions of Article 47 of The Constitution on fair Administrative action. Article 47(1) and 47(2) provides as follows-

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a Person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

The court went on to observe as follows in relation to the duty of fairness:

“Even without the requirements of the Constitution, there is an implied duty of fairness attached to all administrative Acts. If one needs support for this proposition, then it is found inMisc. Civil Application No. 769 of 2004 Republic –Vs- Attorney General & Another Exparte Waswa & 2 Oths [2005], KLR 280 in which Nyamu & Ibrahim JJ (as they then were) said (at page 286)-

“We also associate ourselves with Lord Mustills holding in the case ofDoody –Vs- The Home Secretary (HL 1993)that where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair.”

25. The Respondent averred that it held negotiations with the Appellant regarding the issues raised in this appeal. In particular there were negotiations regarding relocation of the Appellant’s factory to another location. These averments have not been denied by the Appellant. In a letter dated 25th October 2016 produced by the Appellant and addressed to the Respondent, the Appellant states that:

“We are in the process of relocating our site to Athi River and so to comply with no. 6 (your letter dated 25/10/2016) that requires us to install and operationalize dust control system such as a scruber system will be economically untenable and expensive since it will require that we build a new structure to support dust control system………. We would like to bring to your attention that we are soon relocating the factory machines to Athi River in a well zoned industrial land. We intend to move the machine in phases within six months from date of issue of the necessary licenses and acquisition of facilitating infrastructure that will enable us set up operations.”

26. There is no doubt that the Respondent afforded the Appellant a hearing. It is now over four (4) years since the Appellant made the above representations to the Respondent yet its factory has not been relocated.

27. The Tribunal finds no fault in the Environmental Restoration Order issued by the Respondent. The Appellant’s appeal is not merited.

B. What orders should the Tribunal make?

28. Section 129 (3) of the Environment Management and Co-Ordination Act, No. 8 of 1999empowers the Tribunal to make either of the following orders upon hearing an appeal:

a) Confirm, set aside or vary the order or decision in question;

b) Exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; or

c) Make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just.

29. The Tribunal has found no fault in the Environmental Restoration Order dated 5th March 2019 issued by the Respondent. We confirm the order and hereby dismiss the Appellant’s appeal.

Orders:

1. The Appellant’s appeal be and is hereby dismissed; and

2. Each party shall bear their own costs.

Parties’ attention is drawn to provisions of section 130 of the Environment Management and Co-Ordination Act.

DATED AT NAIROBI THIS 3RD DAY OF MARCH 2021

MOHAMMED S. BALALA…………………...……………………CHAIRPERSON

CHRISTINE MWIKALI KIPSANG………………………….……..MEMBER

BAHATI MWAMUYE……………………………..…………………MEMBER

WAITHAKA NGARUIYA…………………….……………………....MEMBER

KARIUKI MUIGUA…………………………..……………………......MEMBER