[2022] KENET 744 (KLR)

Pattni & 8 others v National Environment Management Authority & another (Tribunal Appeal 15 of 2021) [2022] KENET 744 (KLR) (2 September 2022) (Judgment)

Neutral citation: [2022] KENET 744 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 15 of 2021

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

September 2, 2022

Between

Karan Pattni

1st Appellant

Tanvi Ramesh Shah

2nd Appellant

Kavita Achal

3rd Appellant

Dhavani Patel

4th Appellant

Ketan Shah

5th Appellant

Nishita Pattni

6th Appellant

Sankesh Dedhia

7th Appellant

Alka Gandhi

8th Appellant

Anisha Shah

9th Appellant

and

National Environment Management Authority

1st Respondent

Vem Investments Limited

2nd Respondent

Judgment

1. The present Appeal was commenced vide a Notice of Appeal dated 2nd August, 2021. The Appellants moved to the Tribunal being aggrieved by the decision of the 1st Respondent to grant the 2nd Respondent with the Environmental Impact Assessment License No. Nema/EIA/PSL/11653 dated 2nd June, 2021 for the proposed construction of a seventeen-storey residential project on L.R. No. 1870/II/280 in the Westlands area of Nairobi City County.

2. Both Respondents opposed the Appeal. The 1st Respondent filed the 1st Respondent’s Reply to the Notice and Grounds of Appeal dated 24th September, 2021; while the 2nd Respondent filed a Statement of Response dated 3rd September, 2021.

3. As directed by the Tribunal, the Appeal was heard vide viva voce evidence presented at the hearing of the Appeal as well as written submissions. Having considered the pleadings filed by the parties, the testimony and exhibits adduced at the hearing, and the written submissions of the parties; the Tribunal identifies the following as the issues for determination in this case:a.Whether the Environmental Impact Assessment License No. Nema/EIA/PSL/11653 dated 2nd June, 2021 was issued in a procedurally correct manner;b.Whether the proposed development poses an unacceptable risk to the environment without adequate mitigation measures being provided in the Environmental Impact Assessment Project Report; andc.Whether there was adequate and lawful public participation.

Whether the Environmental Impact Assessment License No. Nema/EIA/PSL/11653 dated 2nd June, 2021 was issued in a procedurally correct manner 4. Having considered the Notice of Appeal and the grounds therein, together with the testimony provided by the Appellants on one hand, and the 1st Respondent’s Reply to the Notice and Grounds of Appeal and the testimony provided in support thereof on the other hand; the Tribunal is satisfied that the 1st Respondent received a procedurally compliant Environmental Impact Assessment Study Report and submitted the same for comments by lead agencies. We are also satisfied that the 1st Respondent’s subsequent site visit buttresses the procedural compliance required of the 1st Respondent as the regulator.

5. The 1st Respondent correctly situated the proposed project as being a low to medium risk project for which a project report would suffice, and no evidence has been laid before us to sustain a view that the proposed project would have been a high-risk one necessitating a full study report. In that regard, the Appellants’ contentions on the wide publication and communication of the Project Report as would have been required for a study report do not succeed.

6. Accordingly, we find that the 1st Respondent met the procedural requirements of Regulations 7,9, and 10 of the Environmental (Impact Assessment and Audit) Regulations, 2003 in its issuance of the Environmental Impact Assessment License No. NEMA/EIA/PSL/11653 dated 2nd June, 2021.

Whether the proposed development poses an unacceptable risk to the environment without adequate mitigation measures being provided in the Environmental Impact Assessment Project Report 7. A procedurally compliant issuance of an Environmental Impact Assessment license may nevertheless be one which while procedurally compliant is one which has not properly considered the substantive environmental protection questions at issue. In the present Appeal, the Appellants situate substantive questions as to the environmental probity of the proposed project as the heart of their case.

8. It was the Appellants’ contention that the proposed project:a.Is to build on riparian land, with no indication in the Project Report of the highest water level, and with insufficient mitigation measures being provided in the Project Report;b.Will create a negative environmental situation through the build up of traffic on the narrow access road; andc.The project generally would negatively impact the ‘visual quality and aesthetics of the neighbourhood.’

9. Both Respondents strenuously denied these allegations. It was their separate but common contention that L.R. No. 1870/II/280 is not riparian land and there are no environmental issues arising from the same. Additionally, both Respondents contend that the Appellants have not proved their assertions on the question of the alleged riparian status of the project site or the project’s alleged negative impacts on the riparian areas said to be within the wider vicinity of the project site.

10. Section 107 of the Evidence Act [ Chapter 80 of the Laws of Kenya] is an oft cited provision of statute. It reads as follows:“107. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

11. In the present Appeal, the Appellants bore the burden of proof to the required civil standard of proof that the proposed development poses an unacceptable risk to the environment without adequate mitigation measures being provided in the Environmental Impact Assessment Project Report. They did not discharge this burden. From their pleadings and testimony, it is evident that the allegations made by the Appellants were speculative and not supported by evidence. The Appellants did not prove that LR. No. 1870/II/280 is riparian land or that the proposed project will have any adverse effects on any riparian land in the wider vicinity for which no adequate mitigation measures had been provided in the Project Report.

12. Moreover, and having also considered the Project Report as well as the report by the Water Resources Authority dated 31st May, 2021 and titled ‘Riparian Marking and Pegging on Plot LR. No. 1870/II/280 located off General Mathenge Road, Westlands Area, Nairobi County”, on our part we are satisfied that the 1st Respondent properly considered the riparian question and arrived at the correct decision in both procedure and substance.

13. Turning to the vehicular traffic assertion raised by the Appellants, we find that the same is similarly speculative and not backed by evidence. Our consideration of the Project Report and materials placed on record does not disclose any vehicular traffic issue that would rise to the level required for our intervention at the present time.

14. At the hearing of the Appeal, the Appellants’ testimony did not particularize their contention that the project generally would negatively impact the ‘visual quality and aesthetics of the neighbourhood’ or provide evidence for the same. The 2nd Respondent’s evidence that the proposed project was similar to already existing projects of a similar nature was not rebutted.

15. Accordingly, the Tribunal finds that the proposed development does not pose an unacceptable risk to the environment for which the mitigation measures provided in the Project Report are insufficient.

Whether there was adequate and lawful public participation 16. The 2nd Respondent has stated that the times material to the public participation question at issue in this Appeal were unprecedented. Kenya and the rest of the world were contending with a global pandemic the likes of which had not been seen in over a century. In response to the COVID-19 Pandemic, the Government of Kenya put in place containment measures that, inter alia, limited the size of public gatherings and the ability of Kenyans to undertake activities in the usual manner.

17. This is the basis upon which the 2nd Respondent, through the testimony and report of Mr. Benjamin Ombati, sought to justify the lack of public meetings on the Project Report and the complete reliance on questionnaires and written feedback. The Appellants strenuously argued against this proposition and provided Mr. Achuti Mochama a licensed Lead Expert to rebut the evidence of the 2nd Respondent’s Lead Expert.

18. The 1st Respondent’s position was that at the consideration stage it was satisfied that the questionnaires were sufficient public participation. The 1st Respondent highlighted that not all the questionnaires annexed to the Project Report were in favour of the proposed development.

19. The Appellants’ witness, Ms. Tanvi Ramesh Shah, conceded both in her witness statement as well as in her oral testimony that she was not a resident of the area at the time public participation was being conducted. Accordingly, she could not give any testimony to support an allegation of selective distribution or non-distribution of questionnaires by the 2nd Respondent. Indeed, the Appellants did not provide any direct testimony from any person who ought to have received a questionnaire but did not, or who submitted a completed questionnaire that was not included in the Project Report, or who gave any feedback by a means other than by the questionnaire which is not covered within the Project Report.

20. We agree that the public participation conducted by the 2nd Respondent in March 2021 must be viewed through the lens of the COVID-19 situation prevailing at the time and the containment measures in place then. With that in mind, and also considering the questionnaires adduced as well as the testimony of the parties, our consideration of the questionnaires annexed to the Project Report does not disclose an insufficiency in terms of public participation. The number of returned questionnaires is adequate when one considers that one cannot be compelled to complete and return a questionnaire, the distribution area for the questionnaires gave the local community most likely to be impacted an opportunity to be heard on their views and concerns, and there was sufficient information and disclosure for persons to make informed comments on the proposed development.

21. As stated earlier, the 1st Respondent correctly situated the proposed project as being a low to medium risk project for which a project report would suffice, and no evidence has been laid before us to sustain a view that the proposed project would have been a high-risk one necessitating a full study report. In that regard, the Appellants’ contentions on the wide publication and communication of the Project Report as would have been required for a study report do not fail.

22. In view of the foregoing, we find that there was adequate and lawful public participation.

Disposition and Orders 23. For the reasons stated above, and in line exercise of its powers under Section 129 (3) of the Environment Management and Co-Ordination Act, the Tribunal makes the following Orders: -i.The Notice of Appeal dated 2nd August 2021 is dismissed with no orders as to costs;ii.All orders barring the implementation of the proposed project that is the subject of Environmental Impact Assessment License No.Nema/EIA/PSL/ 11653 dated 2nd June, 2021 are lifted with immediate effect; and

24. The Parties attention is drawn to the provisions of Section 130 of the Environment Management and Co-ordination Act.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF SEPTEMBER 2022. Mohammed S. Balala ................... ChairpersonChristine Mwikali Kipsang’.......Vice-ChairpersonBahati Mwamuye .............................MemberWaithaka Ngaruiya...........................MemberKariuki Muigua ............................. Member