[2022] KENET 773 (KLR)

Seifert & another v National Environment Management Authority & another (Tribunal Appeal 50 of 2020) [2022] KENET 773 (KLR) (Environment and Land) (19 October 2022) (Judgment)

Neutral citation: [2022] KENET 773 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Environment and Land

Tribunal Appeal 50 of 2020

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

October 19, 2022

Between

Hubert Seifert

1st Appellant

Esther Gatembu (Suing as Chairman and Secretary respectively of the New Nyali Resident Association)

2nd Appellant

and

National Environment Management Authority

1st Respondent

Pamwhite Limited

2nd Respondent

Judgment

1. Benson Karomo and Hubert Seifert (suing as Chairman and Secretary respectively of the New Nyali Resident Association) filed a Notice of Appeal dated December 4, 2020. Benson Karomo filed a Notice to withdraw suit under Order 25 Rule 1 of the Civil Procedure Rules and an affidavit both dated January 7, 2021 stating that he has withdrawn the entire appeal against the Respondents. In the affidavit dated January 7, 2021 he states that he has arrived at the conclusion that his complaint against the development being undertaken by the Respondent is not merited and he has hence freely and voluntarily decided to withdraw his complaint and the suit.

2. Hubert Seifert and Dr Esther Gatembu (suing as chairman and secretary respectively of the New Nyali Resident Association) filed the Amended Notice of Appeal (pursuant to leave granted on February 1, 2021) dated February 26, 2021 in which they appeal against the 1" Respondent's decision to grant the 2nd Respondent an Environment Impact Assessment License dated October 5, 2020 under Application Reference No PR/MSA/5199 for Proposed Commercial Development of a Festival City Shopping Center (ground, 1st — 2nd floor) on Plot No MN/1/3156.

3. In support of its appeal, the appellant raises the following grounds of appeal:I. There was no public participation1. Contrary and in utter breach of Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003, the 2nd Respondent in consultation with the 1st Respondent failed to seek the views of the persons likely to be affected by the project, including the neighbours who are largely members of the Appellant.2. After approval of the project report, the 2nd Respondent was supposed to seek views of the public by publicizing the project in, inter alia, newspaper of national circulation and announcement in the radio of nationwide coverage. The 2nd Respondent did not do so.3. Further, the Respondents did not hold at least three public meetings with the affected parties and no meeting notices were sent out at least one week prior to the meetings or at all as required Regulation 17 of the Environmental (Impact- Assessment and Audit) Regulations, 2003. 4.The Respondents breached Regulation 21 of the Environmental (Impact Assessment and Audit) Regulations, 2003 by failing to invite the public to give their comments on the environmental impact assessment report by publishing for two successive weeks in the Gazette and in a newspaper with a nation-wide circulation and did not make an announcement of the notice in both official and local languages at least once a week for two consecutive weeks in a radio with a nationwide coverage.5. The EIA Report dated February 7, 2020 states that a public meeting of neighbours was held on February 6, 2020 at 10:30 am at Pokha Place Building Mtwapa, Kilifi County. It states that those attending had no objection to the proposed development. A list of 11 purported neighours attended. However none of them is a genuine resident in New Nyali and it did not state where they are residing. Nobody in New Nyali was invited nor knew about this proposed development. No notice of the alleged meeting was published or sent out in accordance with the law. Further, there is no basis why the meeting was held in Mtwapa, about 10 kilometers from the locality of the development.6. The EIA report dated February 7, 2020 further states that another meeting took place with the affected neighbours without providing evidence. No genuine neighbours were consulted or invited for a meeting as required by the law.7. Although there were no public meetings and there was no compliance with Regulations 17 and 21, the 2nd Respondent distributed questionnaires to some of the neighbours who vehemently objected to the project but the Respondents deliberately ignored the objections raised. Those who filled in the questionnaires specifically objected to the project for reasons, inert alia, that it is located in the residential area, does not have provision for adequate parking resulting to traffic congestion, it will overstretch services like water supply and cause ground water pollution through septic tanks, generate noise, among other grounds.8. Surprisingly five (5) forms from immediate neighbours who raised objections are missing in the NEMA file while several forms were included from staff in shops at Nyali Centre which is far away from the development such as Java Coffee shop, Naivas Supermarket and Planet Yoghurt who are not immediate neighbours.9. The 2nd Respondent did not appoint a suitably qualified co-ordinator to receive and record both oral and written comments during public meetings (which were not held) and no such records were ever submitted to the 1st Respondent.10. The EIA report seems to be a copy and paste job from another assessment since in some clauses it refers to housing developments and mentions Kilifi while this development is located in Nyali, Mombasa County. The report does also not make mention of the parking requirement and provision for the subject development which is a very crucial aspect thereof.II. 2nd Respondent's project has been commenced and is being undertaken against the lawa.The 2nd Respondent's development as commenced is in violation of Regulation EE-6. 2 of the National Building Regulations, 2015 EE - 6. 2 (a) and (b) which prohibit the carrying on of any activity including excavation on public holidays and Sundays. In utter violation of the said of the said Regulation, the 2nd Respondent's has been undertaking excavation works on Sundays and did so on October 20, 2020 which was a public holiday.b.Further, there is no public sewer system in the estate and sewage for the 2nd Respondent's development will have to be processed through septic tanks and soak pits. This will overstretch the capacity of the septic tanks and contaminate the ground water that at the same time will be used to produce borehole water and ultimately lead to outbreaks and spread of waterborne diseases which are life threatening such as cholera and typhoid, endangering the lives of the greater public. The existing neighbouring residents will have their groundwater contaminated as a result.c.In fact, the 2nd Respondent's septic tank is located near the borehole of the neighbouring plot owned by Hubert Seifert and there is a real danger that the water in the borehole will be contaminated due to underground infiltration from the sewage system.III. The 2nd Respondent commenced and commissioned the EIA Study when it had no capacity to do so. The Environmental Impact Assessment Study Report was commissioned by the 2nd Respondent in February 2020. It was signed on February 7, 2020. Yet, the 2nd Respondent was registered as the owner of the subject property. Plot No MN/I/3156 on February 26, 2020. It means that at the time the 2nd Respondent commenced the EIA Study, it was not an owner of the property as defined by section 2 of the Environmental Management and Co-oridantion Act, 1999 and therefore had no capacity to commission and commence the EIA Study. On that score alone, the EIA Study was irregular, illegal and cannot be used to support the Environment Impact Assessment License dated October 5, 2020.

IV. The 2nd Respondent has commenced construction without regard to environmental concerns The 2nd Respondent's own EIA Study Report dated February 7, 2020 made the following recommendations as a mitigation measure but the 2nd Respondent is proceeding with the development without complying with the same:a.Under Clause 6. 2.2 of the 2nd Respondent's own EIA Study Report (page 18 thereof), it was recommended that in order to ensure the occupational safety and health of neighbours, prior notice of at least two weeks should be given to the neighbours concerning the commencement date of the construction. The 2nd Respondent did not give notice as recommended and the neighbours were shocked when construction works commenced without notice.b.Further, the 2nd Respondent deliberately failed to comply with the recommendations of Clause 6. 2.2 of the 2nd Respondent's own EIA Study Report when the 2nd Respondent failed to put labeled notices and warning signs around the perimeter fence of the construction site and to educate the neigbours and the general public on safety requirements. The 2nd Respondent has surrounded the construction site with plain iron sheets only without labels.c.The 2nd Respondent did not conduct consultative meetings with all stakeholders as recommended by Clause 9. 3.2 of the 2nd Respondent's own EIA Study Report.d.Contrary to Clause 9. 4.8 of the 2nd Respondent's own EIA Study Report, the 2nd Respondent did not sprinkle water on the ground during excavation and the neighbours and the general public were subjected and exposed to dust.

4. The Appellant indicated in its Notice of Appeal that there exists Mombasa Elc No 219 Of 2020: Benson Karomo & 4 Others v Pamwhite Limited & Anor but which does not deal with the environmental issues raised herein.

5. The Appellant is seeking the following reliefs before the Tribunal:i.An order and declaration be and is hereby issued that the Environment Impact Assessment License dated October 5, 2020 Reference No PR/MSA/5199 for Proposed Commercial Development of a Festival City Shopping Center (ground, 1st — 2nd floor) on Plot No MN/I/3156 was issued irregularly and against the law and is therefore null and void.ii.The Environment Impact Assessment License dated October 5, 2020 Reference No PR/MSA/5199 for Proposed Commercial Development of a Festival City Shopping Center (ground, 1 —2nd floor) on Plot No MN/l/3156 be and is hereby revoked.iii.The development and construction of Commercial Development of a Festival City Shopping Center (ground, 1" — 2nd floor) on Plot No MN/I/3156 be and is hereby stopped.iv.An order be and is hereby issued to restrain the 2nd Respondent from proceeding with the development and construction of Commercial Development of a Festival City Shopping Center (ground, 1st — 2nd floor) on Plot No MN/l/3156 unless and until a proper Environment impact Assessment License is issued by the 1st Respondent in compliance with the law.v.An environmental restoration order be and is hereby issued directing the 2nd Respondent to restore Plot No MN/l/3156 to its status ante the commencement of Commercial Development of a Festival City Shopping Center (ground, 1st —2nd floor) under the supervision of the 1st Respondent and at the 2nd Respondent's costs within 60 days of this order.vi.Any other and further order the Honourable Tribunal may deem just and fit to grant.vii.Costs of these proceedings be paid by the Respondents jointly and severally.

6. The 2nd Respondent raised a Preliminary Objection dated April 26, 2021 on the following grounds:i.That the people in whose name the suit has been brought under are not the officials of the appellant;ii.That Benson Karomo, Hubert Seifert and Dr Esther Gatembu lack locus standi to bring this suit because they are not officials of the appellant;iii.That Benson Karomo, Hubert Deifert and Dr Esther Gatembu lack locus standi to bring this suit because they do not have any minutes or resolutions of the appellant authorising them to institute this suit;iv.That this suit was withdrawn via a notice of withdrawal dated January 7, 2021 and filed in court on January 26, 2021 and thus there is no proper suit before this Tribunal.

7. The 2nd Respondent further filed a Replying Affidavit dated April 26, 2021 and sworn by Pamela Auma Ogola, the sole director of the 2nd Respondent as well as submissions on its Preliminary Objection dated April 29, 2021.

8. The Appellant, through Hubert Seifert, filed witness statement dated June 23, 2021 stating that, inter alia:i.At the time this appeal was filed, he was serving as the Secretary of the Appellant herein — the New Nyali Resident Association (hereinafter "the Appellant" or "the Association"), a registered association of property owners and residents of the area known as New Nyali in Mombasa County.ii.He is currently serving as the Chairman of the Association having been duly elected on February 2, 2021. iii.The issue in dispute in this appeal is the 1st Respondent's decision to grant the 2nd Respondent an Environment Impact Assessment License dated October 5, 2020 under Application Reference No PR/MSA/5199 for Proposed Commercial Development of a Festival City Shopping Center (ground, 1" — 2nd Floor) on Plot No MN/1/3156.

9. The 2nd Respondent filed an application dated August 25, 2021 for orders, inter alia, that the Chairperson and Vice-chairperson do recuse themselves from hearing themselves from hearing this matter forthwith and the same be heard by other members of the Tribunal.

10. This Tribunal vide the ruling dated March 28, 2022 dismissed the 2nd Respondent’s Notice of Motion Application dated August 25, 2021 with no order as to costs noting that it is not merited.

Submission By The Parties A. 1ST Respondent’s Submissions 11. The 1st Respondent’s filed its submissions dated December 17, 2021 to the Appellant’s Amended Notice of Appeal dated February 26, 2021.

12. The 1st Respondent raised the following issues for determination:i.Whether there was public participation; andii.Whether the Appeal before this Tribunal is merited.

13. On the first issue for determination, the 1st Respondent submit that The Appellant contradicts himself in paragraph 5(i)(g) of the grounds of appeal by stating that the 2nd Respondent issued questionnaires to the neighbours whereby some of the neighbours objected to the proposed project.

14. The 1st Respondent further submit that in relation to the public participation conducted by the 2nd Respondent, the proponent submitted to the Authority minutes for the proposed commercial development for Pamwhite limited meeting held on February 6, 2020 and furthermore they attached questionnaires handed out to the residents of Nyali to give their opinion regarding the propose project.

15. The 1st Respondent notes that that the chairman of the Appellant, while stating that public participation did not occur, clearly participated in it. In page 39-40 of the 1st Respondent's bundle of documents, is a questionnaire filled by one Mr Hubert Seifert the then Chairman. The 1st Respondent submit that the Appellants claims that they were not consulted are false and aimed at misleading this honourable Tribunal.

16. The 1st Respondent cites Principle 10 of the Rio Declaration on Environment and Development, 1992 which defines public participation as follows:“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."

17. The 1st Respondent further cites Article 2(6) of the Espoo convention on Environmental Impact Assessment in a Transboundary Context, on public participation states that,“The Party of origin shall provide, in accordance with the provisions of this Convention, an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding proposed activities and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin."

18. The 1st Respondent submits that Public participation is a national value that is an expression of the sovereignty of the people as articulated under Article 1 of theConstitution. Article 10 makes public participation a national value as a form of expression of that sovereignty.

19. The 1st Respondent further submit 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.

20. On the question of what is the acceptable threshold or what amounts to appropriate and effective public participation, the 1st Respondent cites the case of Luo Council of Elders & 8 others v County Government of Bomet & 24 others [2018]eKLR where the court held:“where the members of the public were facilitated and afforded an opportunity to make their views known and they failed to avail themselves of the opportunity, there was nonetheless compliance."

21. The 1st Respondent submits that a variety of mechanisms may be used to achieve public participation and cites Sachs J of the South African Constitutional Court (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)) who 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."

22. The 1st Respondent’s further cite the case of Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others v County of Nairobi Government & 3 Others Petition No 486 of 2013 in which Lenaola J (as he then was) appreciated that public participation is not the same as saying that the public views must prevail. The Court further stated;“Further, it does not matter how the public participation was effected. What is needed, in my view, is that the public was accorded some level of public participation"

23. On whether the 1st Respondent's issuance of the EIA license was procedural and lawful it cites the preamble of the Environmental Management and Coordination Act, cap 387 hereinafter referred to as (EMCA) which provides for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto.

24. The 1st Respondent cites Section 7 of EMCA read together with section 8 of the EMCA and submit that the core object and purpose for which the Authority is established is to exercise general supervision and co-ordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment.

25. The 1st Respondent submits that towards achieving the aforementioned core objective, the Authority in consultation with lead agencies and relevant stakeholders has prescribed rules and guidelines in respect to review and approval of Environmental Impact Assessments.

26. The 1st Respondent further submits that pursuant to the prescribed rules and guidelines, it is a requirement that a proponent of any project specified in the Second Schedule of the Environmental Management and Coordination Act, cap 387 undertakes an Environmental Impact Assessment Study and submits an environmental impact assessment study report to the Authority prior to being issued with any license by the Authority.

27. It is the 1st Respondent’s submission that in this instance the Authority received the Environmental Impact Assessment project report from the 2nd Respondent on the February 28, 2020 as evidenced by the acknowledgment letter by the Authority.

28. It is the 1st Respondent’s further submission that the Appellant in the matter at hand seems to misunderstand the difference a between a project report and a study report and that the difference is not just in the phrasing of words but the content of the report.

29. The 1st Respondent contends that on September 1, 2020, the 1st Respondent's field officer undertook a site visit and prepared a report on the same and that in the report the officer stated that the neighbourhood is a mixed commercial and residential, with City mall and Naivas centre in the neighbourhood. This clearly shows that the proposed project is not an activity that is out of character with the surrounding environment as the Appellant is trying to bring out.

30. The 1st Respondent further contends that Environmental Impact Assessment (EIA) is a critical examination of the effects of a project on the environment. An EIA identifies both negative and positive impacts of any development activity or project, how it affects people, their property and the environment. EIA also identifies measures to mitigate the negative impacts, while maximizing on the positive ones. EIA is basically a preventive process. It seeks to minimize adverse impacts on the environment and reduces risks. If a proper EIA is carried out, then the safety of the environment can be properly managed at all stages of a project- planning, design, construction, operation, monitoring and evaluation as well as decommissioning.

31. It is the 1st Respondent’s submission that there is a distinction between EIA project report and EIA study report. The 2nd Respondent conducted and submitted an EIA project report as provided by Section 58(1) of the EMCA, Rule 7 and 8 of the Environmental (Impact and Audit) Regulations, 2003. The EIA project being NEMA/PR/MSA/5199 was submitted, assessed and steps taken in accordance with rule 9 of the said regulations 20013 by the 2nd Respondent.

32. The 1st Respondent submits that it satisfied itself, as per Rule 4 and 10 (1) and (2) of the Regulations and the 2nd Schedule of EMCA that the project is not out of character with the environment and will have no significant impact on the environment and that the project report discloses sufficient mitigation measures and issued a license in Form 3 as set out in the First schedule to the these regulations.

33. The 1st Respondent cites Section 58 (2) of the Environmental Management and Coordination Act provides, " The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority: Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases."

34. The 1st Respondent submits that in response to paragraph 30 of the Appellant's submissions, it clearly states that the second schedule provides for a list of projects that fall under the ambit of medium risk projects. The 2nd Respondent's project falls within this category as is stated in paragraph 2 (1) (d).

35. The 1st Respondent further submits that a study report is a requirement for any high risk project under the second schedule of the Act . In schedule two of EMCA high risk projects are classified into two;i.An activity out of character with its surrounding;ii.Any structure of a scale not in keeping with its surrounding.

36. The 1st Respondent contends that there is a clear distinction between the two modes of Environmental Impact Assessment under Part 2 and 3 of the Environmental ( Impact Assessment and Audit) Regulations 2003. EIA under Part 2 of the Regulations is considered based on an EIA Project Report. Section 58 (1) of the EMCA , Rule 7 and 8 of the EIA Regulations requires a proponent to submit a project report.

37. The 1st Respondent further contends that Part 3 of the EIA Regulations on an EIA Study Report only apply when the 1st Respondent has made a decision under Rule 10 (3) of the EIA Regulations 2003. A decision under Rule 10 (3) thereof leads to preparation of the EIA study report where Part 3 and 4 of the Regulations shall apply.

38. It is the 1st Respondent’s contention that as clearly elaborated in section 58 (2) of EMCA the Authority has the mandate to direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.

39. It is the 1st Respondent’s further contention that it approaches matters regarding Environmental Impact Assessments as a statutory mandate. Section 58(5) of EMCA particularly requires EIA studies and reports under EMCA be conducted by individual experts or a firm of experts authorized in that behalf by the 1st Respondent.

40. The 1st Respondent submit that Section 58(5) states, Environmental impact assessment studies and reports required under this Act shall be conducted or prepared respectively by individual experts or a firm of experts authorised in that behalf by the Authority. The Authority shall maintain a register of all individual experts or firms of all experts duly authorized by it to conduct or prepare environmental impact assessment studies and reports respectively. The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee.

41. The 1st Respondent further submit that The firm that prepared the project report in question is duly authorized on behalf of the Authority, they are experts in matters pertaining to Environmental impact assessments and duly licensed to practice as such and thus their professional opinion is important in assisting the Authority in issuing or rejecting an EIA licence.

42. The 1st Respondent contend that the Appellant to the best of its knowledge are neither experts nor are they affiliated to any firm of experts with expertise in matters regarding Environmental impact assessment studies and reports.

43. It cites Section 62 and Section 63 of the EMCA in support of its case. It further cites the decision of Judge Anthony Ombwayo in Eldoret ELC 52 OF 2015, Hosea Kiplagat & Others v Nema & Others in support of its case.

44. It is the 1st Respondents submission that the subject project was carried out as an EIA Project Report. It contends that one simple distinction between the two modes is the level of public participation and that EIA project reports have less involvement as they are perceived to occasion less environmental impact and in which case the requirement to advertise a project in the media does not apply. It further contends that only questionnaire surveys from likely affected persons and in this case the 2nd Respondent even facilitated public meetings in the locality of the proposed project.

45. It is on this basis that the 1st Respondent prays that this Honourable Tribunal dismiss the prayers sought by the Appellants in their Grounds of Appeal.

B. 2ND Respondent’s Submissions 46. The 2nd Respondent filed its written submissions dated December 22, 2021 in respect to the Appellant’s Appeal on December 24, 2021.

47. The 2nd Respondent submit that it relies on the replying affidavit sworn by Pamela Auma Ogola on January 26, 2021 and the 1st Respondent’s response to grounds of appeal dated April 27, 2021 in opposing the appeal.

48. It is the 2nd Respondent’s submission that the appeal herein cannot be in existence as the same was withdrawn on January 7, 2021 by Mr Benson Karomo, the appellant under the provisions of order 25 rule 1 of the Civil Procedure Rules. It further submit that the notice is categorical that the appellant has henceforth withdrawn the entire appeal as against the respondents and the said appeal was instituted by Benson Karomo in his capacity as the chairman of new nyali residents association together with his secretary, Hubert Seifert.

49. The 2nd Respondent contend that this appeal having been withdrawn, there can be nothing available for a subsequent amendment as is purported to have been done on February 26, 2021, the appeal having been withdrawn on January 7, 2021.

50. The 2nd Respondent further contend that the appellant cannot argue as it does that Benson Karomo had no capacity to withdraw the appeal yet he had the capacity to file it. He withdrew the appeal in the capacity in which he instituted it. He instituted the appeal alongside Hubert Seifert in their capacities of chairman and secretary of new nyali residents association respectively. The notice of withdrawal does not indicate that the appeal is withdrawn because Benson Karomo's term as chairman has lapsed as suggested by the appellant herein. He is instead very categorical in his affidavit accompanying the withdrawal of the appeal where he states as follows:-2. That upon further reflection I have arrived at the conclusion that my complaint against the development being undertaken by pamwhite ltdon plot No MN/I/3156 situated in new nyali area within mombasa county is not merited and I have hence freely and voluntarily decided to withdraw my complaint and the suit herein.3. That I therefore have no objection with the said pamwhite limited proceeding with the development works on plot No LR No MN/I/3156 situated in new nyali area within mombasa county.

51. The 2nd Respondent submit that the averments by Mr Benson Karam herein is clear as to why the appeal was withdrawn. The same cannot be countermanded by the secretary, Mr Hurbert Seifert to the extent that the appeal was filed in the official capacities of chairman and secretary of Nyali Residents association respectively.

52. The 2nd Respondent further submit that the recourse available to the appellant would have been to file a fresh appeal, this one having been withdrawn. The grounds of a fresh appeal would have been that it has new officials who have re-evaluated and reconsidered the matter afresh.

53. It is the 2nd Respondent’s submission that the appeal having been withdrawn by Mr Benson Karomo for the clear reasons set out in his affidavit, the appeal ceased to exist immediately thereafter.

54. It is the 2nd Respondent’s further submission that how an amendment would have subsequently been effected on an already withdrawn suit is not understandable and that Hurbert Seifert could not replace Benson Karomo who had elected to withdraw the suit, not in his individual capacity but in his official capacity as the chairman of new nyali residents association. The 2nd Respondent submit that what Hubert Seifert purported to inherit is the office of chairman of new nyali residents association for which he is obligated to honour the decisions made for and on behalf of the said office prior to his occupation of the office.

55. It is the 2nd Respondent’s submission that no appeal exists and the honourable tribunal is obliged to find as such.

56. On whether the appeal is frivolous, lacks merit and should be dismissed the 2nd Respondent submit that the appeal filed herein is nevertheless lacking in merit and should be dismissed with costs as the contested license for the development of the 2nd respondent's parcel of land number plot no/MN/1/3156 was issued legally and procedurally and is valid.

57. The 2nd Respondent submits that it presented the 1st Respondent with an environment project report as provided for under regulation 7 of the environment (impact assessment and audit) regulations 2003 and upon presentation of the environment project report to the 1st Respondent, the same was approved and the 2nd Respondent was issued with an impact assessment license.

58. The 2nd Respondent further submits that all regulations were adhered to as stated by the 1st Respondent in its response to the grounds of appeal filed herein.

59. The 2nd Respondent adopts the said 1st Respondent's response dated April 27, 2021 in its entirety and prays that the honourable tribunal dismisses the appeal herein with costs as it is lacking in merit.

Issues for Determination 60. Having considered the Notice of Appeal dated December 4, 2020, the Amended Notice of Appeal dated February 26, 2021, The Appellant’s witness statement dated June 23, 2021, 1st Respondent’s submissions dated December 17, 2021, 2nd Respondent filed its written submissions dated December 22, 2021, all the documents filed in the Appeal, and all the authorities cited thereat. The Tribunal has identified the following issues for determination of the dispute before the Tribunal:i.Whether there was adequate public participation;ii.Whether the EIA licence renders itself for cancellation; andiii.What orders should the Tribunal make?

A. Whether there was adequate public participation 61. The said EIA Licence is the subject of the Appeal before the Tribunal and was granted by the 1st Respondent to the 2nd Respondent under Application Reference No PR/MSA/5199 for Proposed Commercial Development of a Festival City Shopping Center (ground, 1st — 2nd floor) on Plot No MN/1/3156.

62. 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).

63. 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.”

64. Vide the Amended Notice of Appeal dated February 26, 2021, the Appellant contends that there was no public participation on the following grounds:i.Contrary and in utter breach of Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003, the 2nd Respondent in consultation with the 1st Respondent failed to seek the views of the persons likely to be affected by the project, including the neighbours who are largely members of the Appellant.ii.After approval of the project report, the 2nd Respondent was supposed to seek views of the public by publicizing the project in, inter alia, newspaper of national circulation and announcement in the radio of nationwide coverage. The 2nd Respondent did not do so;iii.Further, the Respondents did not hold at least three public meetings with the affected parties and no meeting notices were sent out at least one week prior to the meetings or at all as required Regulation 17 of the Environmental (Impact- Assessment and Audit) Regulations, 2003;iv.The Respondents breached Regulation 21 of the Environmental (Impact Assessment and Audit) Regulations, 2003 by failing to invite the public to give their comments on the environmental impact assessment report by publishing for two successive weeks in the Gazette and in a newspaper with a nation-wide circulation and did not make an announcement of the notice in both official and local languages at least once a week for two consecutive weeks in a radio with a nationwide coverage;v.The EIA Report dated February 7, 2020 states that a public meeting of neighbours was held on February 6, 2020 at 10:30 a.m. at Pokha Place Building Mtwapa, Kilifi County. It states that those attending had no objection to the proposed development. A list of 11 purported neighours attended. However none of them is a genuine resident in New Nyali and it did not state where they are residing. Nobody in New Nyali was invited nor knew about this proposed development. No notice of the alleged meeting was published or sent out in accordance with the law. Further, there is no basis why the meeting was held in Mtwapa, about 10 kilometers from the locality of the development;vi.The EIA report dated February 7, 2020 further states that another meeting took place with the affected neighbours without providing evidence. No genuine neighbours were consulted or invited for a meeting as required by the law;vii.Although there were no public meetings and there was no compliance with Regulations 17 and 21, the 2nd Respondent distributed questionnaires to some of the neighbours who vehemently objected to the project but the Respondents deliberately ignored the objections raised. Those who filled in the questionnaires specifically objected to the project for reasons, inert alia, that it is located in the residential area, does not have provision for adequate parking resulting to traffic congestion, it will overstretch services like water supply and cause ground water pollution through septic tanks, generate noise, among other grounds;viii.Surprisingly five (5) forms from immediate neighbours who raised objections are missing in the NEMA file while several forms were included from staff in shops at Nyali Centre which is far away from the development such as Java Coffee shop, Naivas Supermarket and Planet Yoghurt who are not immediate neighbours;ix.The 2nd Respondent did not appoint a suitably qualified co-ordinator to receive and record both oral and written comments during public meetings (which were not held) and no such records were ever submitted to the 1st Respondent; andx.The EIA report seems to be a copy and paste job from another assessment since in some clauses it refers to housing developments and mentions Kilifi while this development is located in Nyali, Mombasa County. The report does also not make mention of the parking requirement and provision for the subject development which is a very crucial aspect thereof.

65. The 1st Respondent submits that in relation to the public participation conducted by the 2nd Respondent, the proponent submitted to the Authority minutes for the proposed commercial development for Pamwhite Limited meeting held on February 6, 2020 and furthermore they attached questionnaires handed out to the residents of Nyali to give their opinion regarding the proposed project.

66. The 1st Respondent notes that that the Chairman of the Appellant, while stating that public participation did not occur, clearly participated in it. In page 39-40 of the 1st Respondent's bundle of documents, is a questionnaire filled by one Mr Hubert Seifert the then Chairman. The 1st Respondent submits that the Appellants claims that they were not consulted are false and aimed at misleading this honourable Tribunal.

67. The 1st Respondent submits that there is a difference between a project report and a study report and that the difference is not just in the phrasing of words but the content of the report.

68. It is the 1st Respondent’s submission that the subject project was carried out as an EIA Project Report. It contends that one simple distinction between the two modes is the level of public participation and that EIA project reports have less involvement as they are perceived to occasion less environmental impact and in which case the requirement to advertise a project in the media does not apply. It further contends that only questionnaire surveys from likely affected persons and in this case the 2nd Respondent even facilitated public meetings in the locality of the proposed project.

69. The 2nd Respondent submits that it presented the 1st Respondent with an environment project report as provided for under Regulation 7 of the Environment (impact assessment and audit) Regulations 2003 and upon presentation of the environment project report to the 1st Respondent, the same was approved and the 2nd Respondent was issued with an impact assessment license.

70. The Tribunal is aware that the EIA Regualtions were not amended after the amendment of section 59 (1) of EMCA for uniformity, however, section 31(b) of the Interpretation and General Provisions Act provides that, “no subsidiary legislation shall be inconsistent with the provisions of an Act.” It follows that the advertisement for two successive weeks is no longer a legal necessity as the Regulations cannot supersede the substantive amended provisions of the statute.

71. Regulation 21 of the Regulations provides that,"(1)The Authority shall, within fourteen days of receiving the environmental impact assessment study report, invite the public to make oral or written comments on the report.(2)The Authority shall, at the expense of the proponent—(a)publish for two successive weeks in the Gazette and in a newspaper with a nation-wide circulation and in particular with a wide circulation in the area of the proposed project, a public notice once a week inviting the public to submit oral or written comments on the environmental impact assessment study report; and(b)make an announcement of the notice in both official and local languages at least once a week for two consecutive weeks in a radio with a nationwide coverage.”

72. In Save Lamu & Others v NEMA & Another (NET 196/16), this Tribunal cited with approval the judgment in Constitutional Petition No 305 of 2012: Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others where a three Judge bench of the Kenya Constitutional 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 The 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.” 73. Considering the facts presented to the Tribunal on the question of public participation, we find that the Respondents failed to adhere to the law. This ground of appeal succeeds.

B. Whether the EIA licence renders itself for cancellation 74. This Tribunal derives its powers from section 129 of EMCA. The powers of the Tribunal are well set out under section 129 (3) of the Act which provides that:“Upon any appeal, the Tribunal may:-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; orc.Make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just.”

75. The Tribunal has considered the Appeal and the evidence presented by the parties. We have found that the Respondents did not carry out adequate public participation.

76. The effects of cancellation of the licence would be to cause a repeat of the process that has been carried out including public participation and the ensuing processes.

77. Considering that the project proponent has not complied with the requirements for the grant of the EIA Licence for the disputed project, the Tribunal cancels the license granted by the 1st Respondent to the 2nd Respondent under Application Reference No PR/MSA/5199 for Proposed Commercial Development of a Festival City Shopping Center (ground, 1st — 2nd floor) on Plot No MN/1/3156.

Orders 78. For the above reasons, the Tribunal makes the following orders:i.The Environment Impact Assessment License dated October 5, 2020 Reference No PR/MSA/5199 for Proposed Commercial Development of a Festival City Shopping Center (ground, 1st —2nd floor) on Plot No MN/l/3156 is hereby revoked;ii.The development and construction of Commercial Development of a Festival City Shopping Center (ground, 1" — 2nd floor) on Plot No MN/I/3156 is hereby stopped;iii.The 2nd Respondent is hereby restrained from proceeding with the development and construction of Commercial Development of a Festival City Shopping Center (ground, 1st — 2nd floor) on Plot No MN/l/3156 unless and until a proper Environment impact Assessment License is issued by the 1st Respondent in compliance with the law; andiv.Each party shall bear their own costs.

79. Parties’ attention is drawn to Section 130 of the Environmental Management and Coordination Act.

DATED AT NAIROBI THIS 19THDAY ofOCTOBER 2022. MOHAMMED S. BALALA…………………...………………………CHAIRPERSONCHRISTINE MWIKALI KIPSANG………………………….……… MEMBERBAHATI MWAMUYE……………………………..………………… MEMBERWAITHAKA NGARUIYA…………………….……………………. MEMBERKARIUKI MUIGUA…………………………..……………………… MEMBER