[2024] KENET 503 (KLR)

Sikalieh (Chairman) Suing on behalf of Karen Langata District Association) v National Environment Management Authority & another (Appeal 4 of 2023) [2024] KENET 503 (KLR) (12 March 2024) (Judgment)

Neutral citation: [2024] KENET 503 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Appeal 4 of 2023

Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair & Duncan Kuria, Member

March 12, 2024

Between

Samora Sikalieh (Chairman) Suing On Behalf Of Karen Langata District Association)

Appellant

and

National Environment Management Authority

1st Respondent

Nairobi Waldorf School Trust

2nd Respondent

Judgment

1. The Appeal was initiated vide a Notice of Appeal dated 26th January 2023. The Appellants are aggrieved by the decision of the 1st Respondent to issue the Environmental Impact Assessment Licence Number NEMA/EIA/PSL/22968 dated 29th November 2022 to the 2nd Respondent for the construction of 20 classroom units, a dining hall and other associated amenities on Plot LR 7336/76 along Nandi Road, Karen Area.

2. The summary of the grounds of appeal advances six grounds, namely:a.Public participation did not meet the threshold envisaged in the Constitutionof Kenya and the Environmental Impact Assessment and Audit Regulations (Regulations).b.Respondents ignored the fact that the proposed development will strain the limited water and sewerage system.c.The Respondents overlooked the fact that the area within which the proposed construction is to be undertaken is a low-density residential area, and as such, construction of 20 classroom units, a dining hall and other associated amenities that will accommodate a large number of persons is completely out of character with the surroundings.d.The Respondents overlooked the fact that the project will lead to a loss of biodiversity and lead to a change in species composition, and displacement of sensitive species.e.The Respondent ignored the fact that the proposed project violates the physical planning laws of Karen and Lang’ata areaf.The Respondent overlooked the fact that the implementation of the project will have grave impacts if the environment and the proposed mitigation measures for the said impacts are grossly insufficient.

3. Thus, the Appellants are seeking the cancellation of the Environmental Impact Assessment Licence Number NEMA/EIA/PSL/22968.

4. The 1st Respondent opposed the appeal through the 1st Respondent Reply to Notice and grounds of appeal dated 11th October 2023. It contends that:a.Public Participation in the Environmental and Social Impact Assessment Project Report was conducted: it was established that the 2nd respondent issued forty questionnaires which were duly filled by thirty-eight neighbours. Further, advertisements of the project were done in the newspapers and meetings on the proposed project were held with the Karen Langata District Association (KLDA)members chaired by the applicant hereinb.The source of water for the school and if it is connected to the sewerage system: The school buys water from external sources, and the water is transported using bowsers. Also, the school is not connected to the main sewerage line. It uses septic tanks for the disposal of its sewagec.The existing road network cannot support a project of the 2nd respondent's magnitude: The school uses three buses to ferry students and there is a long driveway inside the school. There are two gates; front and rear plus a roundabout therefore, vehicles drive in from the entrance and exit at the gate on the rear end.d.Noise pollution from the target population of the project: the project targets 400 students drawn from both the primary and the secondary sections of the school after the merger of operations with the school Miotoni campus. Consequently, there is a high likelihood of there being uncontrolled noise due to the student populatione.Biodiversity loss: at the time of the visit, it was observed that seven trees had been cut down by the 2nd respondent and the relevant permit had been obtained from Nairobi City county

5. On its part, the 2nd Respondents adopted the Replying affidavit sworn by James Kioko Muthusi on 20th March 2023, where they urged the tribunal to dismiss the appeal in its entirety with costs to the 2nd Respondent. They further contended that:a.The water issue was addressed in that the school shall buy its water and will be supplied with it as it has been for the past 2 decadesb.The architectural plan of the school is such that no natural habitat shall be extricated to create rooms for classes. The design is such that the classrooms and labs shall be built around the existing natural habitat.c.The population of students in the school is such that the noise produced shall be contained within the nature of the schoold.Regarding the traffic, the school intends to have a long driveway inside the school to ensure no traffic on the main road.

6. Upon careful review of all materials submitted by the parties, including oral evidence, counsels' submissions, and matters raised in the appeal, the following issues for determination have been identified:a.Whether the issuance of the Environmental Impact Assessment (EIA) License was irregular due to the exemption of undertaking a full EIA Assessment study;b.Whether there was adequate public participation; andc.Whether the EIA license was fatally defective.Whether the issuance of the Environmental Impact Assessment (EIA) License was irregular due to the exemption of undertaking a full EIA Assessment study.

7. The Appellants contend that the 1st Respondent abused its discretion by exempting the project in question from EIA Study despite the overwhelming evidence that the project had profound impacts to the environment with no sufficient mitigation measures.

8. Section 58 (2) of EMCA provides that;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.”

9. The Second Schedule of EMCA lists activities for which an environmental impact assessment study is required unless exempted by the National Environment Management Authority (NEMA). They include projects involving the construction of local roads and facility access roads, schools and related infrastructure for learners not exceeding one hundred, and they received a notification of approval of development permission.

10. The Respondents have admitted they intend to construct a school that will hold four hundred students. There is no doubt that the development being carried out by the Respondents on the suit property falls under the second schedule of the EMCA, and as such, the same requires environmental impact assessment study unless the Respondents are exempted from conducting such study. These exemptions were granted.

Whether the EIA license was fatally defective. 11. The Appellant took issue with the EIA licence on the ground that it failed to meet the required parameters in law. The Appellant contended that the impugned licence was issued based on a project report that was never signed by the lead expert, assistant lead expert and the proponent.

12. Section 58 (7) of EMCA provides that EIA shall be conducted in accordance with the Environmental Impact Assessment regulations, guidelines and procedures issued under this Act. Regulation 16 of the EIARegulations provides that:An environmental impact assessment study prepared under these Regulations shall take into account environmental, social, cultural, economic, and legal considerations, and shall—a.identify the anticipated environmental impacts of the project and the scale of the impacts;b.identify and analyze alternatives to the proposed project;c.propose mitigation measures to be taken during and after the implementation of the project; andd.develop an environmental management plan with mechanisms for monitoring and evaluating the compliance and environmental performance which shall include the cost of mitigation measures and the time frame of implementing the measures.”

13. For clarity in addressing the issues raised by the Appellants, we shall address each of the elements of the alleged deficiencies.

The lack of signatures 14. A signature is, of course, mandatory under Regulation 18 of the Environmental (Impact Assessment and Audit) Regulations, 2003 (EIA Regulations) contained in EMCA.

15. Regulation 18 (2) provides the environmental impact assessment study report shall be accompanied by a non-technical summary outlining the key findings, conclusions and recommendations of the study and shall be signed by the proponent and environmental impact assessment experts involved in its preparation.

16. However, upon review of the submitted Environmental Impact Assessment (EIA) study report, it is evident that there was no signature accompanying the non-technical summary as required by Regulation 18 (2) of the Environmental (Impact Assessment and Audit) Regulations, 2003 (EIA Regulations) contained in EMCA.

Noise Pollution 17. The 1st Respondent admits that it directed the 2nd Respondent to provide it with evidence of mitigation measures it has taken to contain the noise within the set standards under the EMCA (Noise Regulations) of 2009. They further aver that the 2nd Respondent has failed to comply with the directions to date.

18. Regulation 3(2) of the EMCA (Noise and Excessive Vibration Pollution (Control)) Regulations, 2009, read together with articles 42 and 69 of the Constitution, places an obligation on every person whenever they produce noise to prevent it from being loud, unreasonable, unnecessary or unusual.

Whether there was adequate public participation 19. 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).

20. 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; andiii)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; andd)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.”

21. Vide the Notice of Appeal dated 26th January 2023, the Appellant contends that there was no public participation. They state that public participation in the Environmental and Social Impact Assesment Project Report did not meet the threshold envisaged in the Constitution and the Environmental (Impact Assessment and Audit) Regulations.

22. Furthermore, the Appellants contend that the EIA License was issued based on a project report that lacked genuine and meaningful public participation. They allege that the public participation process was inadequate and did not meet the benchmark guidelines established under Regulation 17. The Appellants also state that the 2nd Respondent failed to provide any evidence of distributed questionnaires to the members. Additionally, they highlight that the EIA Lead expert did not sign the project report and was not called to testify or explain to the tribunal the manner in which the public participation was conducted.

23. The 1st Respondent submits via its reply to notice and grounds of appeal, that it was established that the 2nd Respondent issued 40 questionnaires which were duly filled by thirty-eight neighbours. Further, advertisements of the project were done in newspapers and meetings of the proposed project were held with the Karen Langata District Association (KLDA) members chaired by the Applicant.

24. The 2nd Respondent submits that an EIA lead expert engaged all stakeholders within the area, including members of the association who were issued with questionnaires and their concerns accordingly considered in the EIA project report, which were annexed as JKM 7.

25. Upon perusal of the 2nd Respondent’s documentary evidence, JKM 7 and the entirety of the evidence provided, JKM 7 provides for the corporate membership application form and for the avoidance of doubt, no minutes have been provided by the 2nd Respondent as evidence. The Respondent has failed to produce any correspondences, notices, minutes or proof that any public participation exercises were conducted.

26. As was held in the case of Ken Kasinga vs. Daniel Kiplagat Kirui & 5 others (2015) eKLR,where the procedures for the protection of the environment are not followed, including the process of public participation, then an assumption may be drawn that the right to a clean and healthy environment is under threat. The evidence before this court shows that the appellants did not only breach the provisions of Section 58 and 59 of the Environmental Management and Co-ordination Act, but also Article 69(1) (d) of the Constitution which provides that the State shall encourage public participation in the management, protection and conservation of the environment.

27. Further in case of John Kabukuru Kibicho & Another vs. County Government of Nakuru & Others (2016)eKLR where Muyao, J reiterated the need for public participation and stated:“Public participation, especially when it comes to EIA’s, is extremely critical and cannot be treated as a formality or inconvenience. It is the core of any EIA exercise.”

28. The Appellant's other contention was that the 1st Respondent unlawfully failed to consult the lead agencies that ought to have been consulted, listing Nairobi Water and Sewerage company, Kenya Power and Kenya Urban Roads Authority, thus failing to observe regulation 20(1) of the regulations

29. Regulation 20(1) of the regulations provides that ‘the Authority shall, within fourteen days of the receipt of the environmental impact assessment study report, submit a copy of the report to any relevant lead agencies for their comments.

30. In this instant case there is no evidence that a copy of the project report was submitted to each of the relevant lead agencies.

31. In the absence of evidence that indeed there was public participation in the EIA Process the tribunal finds it difficult to conclude that such participation occurred.

Does the EIA License render itself for cancellation? 32. 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.”

33. The Tribunal has considered the Appeal, the evidence presented by the parties and perused the bundles of documents presented by the parties. We have found that the Respondents did not adhere to the requirements for the grant of an EIA License

34. 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

Orders 35. For the above reasons, the Tribunal makes the following orders:a.The Environment Impact Assessment License Number NEMA/EIA/PSL/22968 dated 29th November 2022 is hereby revokedb.The Construction of the semi-permanent classrooms, dining hall and other associated amenities on Plot L.R No 7336/76 is hereby stopped.c.The 2nd Respondent is hereby restrained from proceeding with the development unless and until a proper Environmental Impact Assessment License is issued by the 1st Respondent in compliance with the lawd.Each party shall bear their own costs.

DATED AND DELIVERED AT NAIROBI, THIS 12TH DAY OF MARCH 2024EMMANUEL MUMIA………………….CHAIRMANWINNIE TSUMA…….……………........VICE-CHAIRDUNCAN KURIA…….....…….....................MEMBER