[2021] KENET 202 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIROMENT TRIBUNAL AT NAIROBI

TRIBUNAL APPEAL NO. NET 209 OF 2017

SKY AFRICA HOLDINGS LIMITED.....................................................................................................APPELLANT

VERSUS

NATIONAL ENVIROMENT MANAGEMENT AUTHORITY (NEMA).......................................RESPONDENT

JUDGMENT

Background

1. By the Notice of Appeal dated 30th June, 2017 [filed: 6th July, 2018] the Appellant herein appealed against the Respondent’s Environmental Restoration Order dated 17th May, 2017 [ Ref: NEMA/CDE/NRB/21/14 VOL. II, by dint of which Environmental Restoration Order the Respondent directed the Appellant to:

a. Immediately demolish the boundary walls and other permanent structures on the Appellant’s property being L.R. No. 22842 Nairobi for being within the river path and riparian reserve of Kibagare River;

b. Restore the river and riparian reserve to their condition as before the developments had been made on L.R. No. 22842 Nairobi within twenty-one days of the date of receipt of the Order;

c. Undertake to determine the original course of the Kibagare River in consultation with the Surveys of Kenya and the Respondent, within twenty-one days of the date of receipt of the Order;

d. Undertake a hydrological surer of the river to determine the adequacy (capacity) of the river canal within the Appellant’s premises and submit the same to Respondent within twenty-one days of the date of receipt of the Order;

e. Submit a letter of commitment to the Respondent committing to abide by the aforementioned requirements (a-d), to be received by the Respondent within seventy-two hours of the date of receipt of the Order; and

f. Liaise with relevant lead agencies for the relevant documents and advice.

2. In the Respondent’s Environmental Restoration Order dated 17th May, 2017 the Respondent premised its decisions on the following grounds:

a. That the Appellant had canalized the Kibagare River within its property and thereafter constructed boundary walls on the river and also erected permanent structures on its riparian reserve;

b. The Appellant had deliberately diverted the course of the Kibagare River to pave way for the developments within it premises in a manner and with an effect that was detrimental to other the environment, other users and public utilities; and

c. That the Appellant did not obtain the requisite Environmental Impact Assessment Licence for the construction of the developments on the river and the riparian reserve.

3. On the basis of the Environmental Restoration Order, on 29th June 2017 officers of the Respondent entered the Appellant’s premises and proceeded to mark with paint developments and structures within the Appellant’s premises; which they contended were constructed in the course of the river or within its riparian reserve.

4. Accordingly, the Appellant’s Notice of Appeal dated 30th June, 2017 sought the following reliefs from this Tribunal:

a. A permanent stop order restraining the Respondent from harassing or intimidating the Appellant, or in any way whatsoever interfering with the peaceful and quiet enjoyment of L.R. No. 22842 Nairobi;

b. A stop order restraining the Respondent from demolishing or destroying any of the buildings, improvements, amenities, boundary wall or other structures on L.R. No. 22842 Nairobi pending the hearing and determination of the present Appeal;

c. A permanent restraining order restraining the Respondent from demolishing or destroying any of the buildings, improvements, amenities, boundary wall or other structures on L.R. No. 22842 Nairobi;

d. A declaration that the Appellant has not in any way interfered with or altered the course of the Kibarage River; and

e. Costs of the Appeal.

5. The Appellant’s Appeal was premised on thirteen (13) grounds stated at Paragraph 4 of the Notice of Appeal. In summary, the Appellant contended that:

a.It had purchased the property from the original developer in the year 2005 with all the buildings and structures as they appear today, save for the addition of a laundry room;

b.The developments on the premises, known as Jade Valley Estate, had received all necessary approvals, with the building plans having been approved by the Nairobi City Council and a subsequent Occupation Certificate having been issued by the Council,

c.The approved building plans had taken into consideration the course of the river and the river’s course had not in any way been altered by the Appellant,

d.The Respondent had no justification and had provided no evidence to support its contention that the course of the river had been altered by the Appellant or any other party; and

e.The Respondent’s decision and proposed action of demolition were illegal and based on selective application of the law.

6. The Notice of Appeal was supported by the Supporting Affidavit dated 30th June 2017 [ filed: 6th July 2017] deponed to by a director of the Appellant, Bipin Mawjee. The deponent, in his capacity as a director of the Appellant, affirmed the positions advanced in the Notice of Appeal and gave evidence on behalf of the Appellant.

7. The Respondent entered appearance in this matter vide a Notice of Appointment of Advocate dated 21st August, 2017 [ filed: 22nd August,2017]. Thereafter, the Respondent filed a Notice of Change of Advocates dated 29th November,2017 [ filed: 1st December,2017]. In substantive response to the Appeal, the Respondent filed the Respondent’s Reply to the Appeal and Counterclaim dated 26th February,2018; which was filed on even date. By way of response to the Appeal, the Respondent contended that:

a.It had acted lawfully and within its proper mandate;

b.The Appeal contained falsehoods, material non-disclosures and was an attempt to mislead the Tribunal;

c.The fact that the developments and structures allegedly pre-dated the establishment of the Respondent and the enactment of the Environmental Management and Co-ordination Act [ Act No. 8 of 1999, hereinafter “EMCA”] did not in any way absolve the Appellant from compliance;

d.The Respondent had received numerous complaints that the Appellant’s development had encroached on the sewer-line and thus blocking access to it;

e.The Respondent’s site inspection of 3rd May 2017 had established that the Appellant had constructed a concrete boundary wall atop Kibagare River spanning both exits of the Appellant’s property, in addition to constructing permanent structures on the riparian reserve;

f.The Appellant had failed to comply with an Improvement Notice dated 3rd May 2017 and to provide the approvals and licenses for the development; which led to the issuance of the Environmental Restoration Order at issue in this Appeal; and

g.The Appellant’s developments are illicit and in violation of applicable provisions of the Environmental Management and Co-ordination Act, as well as the right to a clean and healthy environment.

8. In its Cross-Appeal/Counterclaim, the Respondent underscored its aforementioned contentions, and prayed that the Appeal be dismissed, and the Cross-Appeal/Counterclaim allowed. The Cross-Appeal/Counterclaim prayed for orders that:

a.The boundary wall and other permanent structures on the Appellant’s premises built on the river and within the riparian reserve be immediately demolished;

b.The Appellant be ordered to immediately restore and rehabilitate the river and the riparian reserve to the condition they were in before the development activities had been undertaken;

c.The Appellant be ordered to undertake an immediate hydrological survey of the Appellant’s Canal/Waterway to determine the adequacy (capacity) of the river canal and submit the same to the Tribunal before the full hearing and determination of the Appeal;

d.The structures inhibiting access to the sewer-line be removed;

e.The Appellant be ordered to conduct an Environmental Audit (EA) of its facility, as well as the carrying capacity of the river;

f.The Survey of Kenya be ordered to establish the original course of the Kibagare River before the full hearing and determination of the Appeal;

g.In the event of non-compliance with the foregoing, a stop order and closure order be issued to and as against the Appellant; and

h.Costs of the Appeal and the Cross-Appeal/Counterclaim.

9. The Respondent’s Reply to the Appeal and Counterclaim was supported by the Respondent’s Replying Affidavit of Njoki Mukiri dated 26th February 2018 and filed on even date. The deponent, in her capacity as the County Director of Environment (CDE)- Nairobi, affirmed the positions advanced in the Reply to Appeal and Cross-Appeal/Counterclaim and gave evidence on behalf of the Respondent.

10. In view of the Respondent’s pleadings and deposition, the Appellant filed the Appellant’s Replying Affidavit to the Respondent’s Response and Cross-Appeal dated 15th May 2018 and filed on 16th May 2018. The deponent of that Replying Affidavit, Bipin Mawjee, articulated the following summarized grounds in reply:-

a.The Cross-Appeal/Counterclaim was incompetent and unprocedural; and thus the Tribunal lacks the jurisdiction to hear and determine it;

b. EMCA cannot be applied retrospectively, and once developments had been approved by the relevant bodies existing at the time subsequent changes to the law and subsequent establishment of supervising bodies cannot apply to those already existing developments;

c.The Appellant was not aware of any complaints to the Respondent relating to its property and it had never been given any opportunity to respond to and rebut those complaints;

d.The sewer-line lay outside the Appellant’s property and was in no way obstructed by any structure built by or belonging to the Appellant; and

e.Even in response the Respondent had once again been unable to show evidence in support of its contention that the course of the river had been diverted by the Appellant or in any way affected by the Appellant.

11. Within the course of the proceedings, the Parties entered into a limited Consent dated 25th October 2018 and signed by respective Counsel. The six key points of that Consent were that by consent of the parties:

a.The Appellant undertook to remove the concrete wall erected across Kibarage River on LR 22842 Nairobi within sixty days of the date of the Consent;

b.The Appellant would be at liberty to put up “an environmentally friendly security boundary to replace the removed concrete wall subject to an approval to be obtained from the respondent;

c.The Appellant would subject the canal/waterway on its premises to a hydrological study for the purposes of determining its waterflow carrying capacity within thirty days of the date of the consent;

d.The Appellant would prepare and submit an Environmental Audit (EA) with respect to its entire property and with emphasis on the sewer-line and riparian reserve within thirty days of the date of the consent;

e.The Respondent foregoes any interim demolition action pending further orders or directions of the Tribunal; and

f.The Appellant indemnifies the Respondent against any claim or damages “in relation to the subject matter herein.”

12. Following the limited Consent dated 25th October, 2018; the Appellant submitted the following documents to the Respondent:

a.A hydrological study of the Kibagare River;

b. An Environmental Audit of Jade Valley Estate; and

c. A drawing plan for the proposed re-design of the boundary wall.

13. Upon consideration of the same, the Respondent filed the Further Statement of Reply of the Respondent dated 21st January 2020 [ filed: 22nd January 2020]. The Further Statement of Reply of the Respondent stated that:-

a.Hydrological Study Report – The Respondent approved and accepted the Hydrological Study Report, and accepted its conclusion on the sufficiency of the water channel to accommodate water flows;

b.Environmental Audit (EA) Report–The Report was inadequate in terms of its disclosure and analysis of material circumstances, failed to correctly contextualize the applicable regulations and standards, fails to provide an adequate analysis of environmental impacts and thereafter suggest mitigation measures, fails to identify the housing units and structures that have encroached on the riparian reserve and thereafter establish their impacts, and did not have sufficient public participation given that only two questionnaires were attached and no disclosure as to the proximity of their respondents to the subject property or disclosure of contact and participation of the immediate community;

c.Drawing plan for the proposed re-design of the boundary wall– The Respondent deemed it adequate and an appropriate alternative.

14. In its Further Statement of Reply of the Respondent dated 21st January 2020, the Respondent stated that on 31st October 2019 its officers and an officer from the Water Resources Authority conducted a further site inspection of the premises. The Further Statement of Reply proceeded to annex a Report by the Water Resources Authority, which contained a tabular examination of structures within the Appellant’s premises and their extent of encroachment.

15. By consent, the Parties agreed that the Appeal be canvassed by way of written submissions and on the basis of the documents on record. Accordingly, the Appellant filed the Appellant’s Submissions dated 18th May, 2020 as supported by the Appellant’s List of Authorities of even date. Those two documents were filed on 22nd May,2018. In response to the same, the Respondent filed another Respondent’s Reply to the Appeal sworn by Mamo B. Mamo on 19th August 2020 [ filed: 19th August 2020] and the Respondent’s Written Submissions dated 26th August 2020. Thereafter, the Appellant filed the Appellant’s Supplementary Submissions dated 4th September 2020 [ Filed: 14th September 2020] which were supported by the Appellant’s Supplementary List of Authorities 4th September 2020 [ Filed: 14th September 2020].

16. From the Proceedings of this matter as well as the Pleadings, Documents, Submissions and Authorities filed by the Parties, the key positions of the Appellant and the Respondent are summarized as below.

Appellants’ Case

17. The Appellant principally contends that:

a. In the present Appeal, the burden is on the Respondent to show that the impugned decision being the Environmental Restoration Order dated 17th May 2017 was and is legally valid and factually proper;

b. The Appellant has not altered the course of the Kibagare River, nor has the Respondent adduced any evidence to demonstrate and support its contention that the River had been altered, and by the Appellant;

c. The Appellant’s property does not feature any buildings within the riparian reserve, and the Respondent did not factually establish that they indeed were infringing on the riparian reserve before taking the impugned decision;

d. The Suit Property’s building plans were approved by the relevant authorities in the year 1995, and the Appellant has made no additions or developments to the site save for the construction of a laundry room;

e. The Appellant’s property and the development therein cannot be credibly said to pose a threat to the environment or to persons living in the area; contrary to the assertions by the Respondent;

f. The Respondent’s Cross-Appeal is not legally permissible and cannot be determined by this Tribunal; and

g. The impugned Environmental Restoration Order seeks to illegally apply the law retrospectively against the Appellant.

Respondent’s Case

18. The Respondent principally contends that:

a. The 1995 approvals that were granted by the then competent authorities cannot and do not insulate the Appellant from compliance with existing law;

b. The Environmental Restoration Order dated 17th May 2017 was well founded in law and in fact;

c. The burden is on the Appellant to demonstrate to the satisfaction of the Tribunal that the Environmental Restoration Order dated 17th May 2017 was not well founded in law and in fact;

d. The Appellant has not substantially complied with the Environmental Restoration Order dated 17th May 2017 and the Consent Order dated 25th October 2018; and this non-compliance presents a continuing threat of harm to the environment and persons in the subject area;

e. The Appellant should be ordered to submit a fresh Environmental Audit, addressing the concerns raised by the Respondent with regard to the initial Environmental Audit submitted by the Appellant; and

f. The Respondent’s Cross-Appeal is abandoned.

19. The Tribunal notes that the Respondent abandoned its Cross-Appeal as expressly stated in its written submissions fated 26th August 2020. The Tribunal also notes that a number of the issues initially raised in the Appeal as well as in response by the Respondent were settled pacifically by the Parties through the Consent dated 25th October 2018. This resulted in a significant narrowing of the issues for analysis and determination by the Tribunal.

Analysis and Determination by the Tribunal

20. After considering the Pleadings, Documents, Submissions, and the Authorities filed by the Parties, the Tribunal has identified six (6) Issues for Determination, namely: -

a. Who bears the burden of proof in relation to the legal and factual probity of the impugned decision being the Environmental Restoration Order dated 17th May 2017; the Appellant or the Respondent?

b. Does the impugned decision seek to retrospectively apply the law as against the Appellant in a manner not provided for under the law?

c. Are the buildings and developments in ‘Jade Valley’ within the Riparian Reserve?

d. Did the Appellant alter the course of the Kibagare River?

e. Should the Appellant be ordered to conduct and submit a fresh Environmental Audit of ‘Jade Valley’?

f. Who should bear the costs of the Appeal?

Who bears the burden of proof in relation to the legal and factual probity of the impugned decision, being the Environmental Restoration Order dated 17th May 2017; the Appellant or the Respondent?

21. The Tribunal is not bound by the strict rules of evidence. Nonetheless, the Tribunal is enjoined to apply the general principles of Burden of Proof and Standard of Proof. Generally, when a party before the Tribunal asserts the existence of any fact, that party assumes the burden of proof. This is encapsulated in the maxim ‘semper necessitas probandi incumbit ei qui agit’ (the necessity of proof always lies with the person who lays charges).

22. As was held in Anne Wambui Ndiritu -v- Joseph Kiprono Ropkoi & Anor [ Civil Appeal No. 345 of 2000, [2005] 1 EA 334]

“The legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however also the evidentiary burden that is cast upon any party of proving any particular fact which he desires the court to believe in its existence…”

23. The Appellant has moved to the Tribunal and alleged that the Environmental Restoration Order dated 17th May 2017 is improper and has articulated thirteen (13) grounds for the same as stated at Paragraph 4 of the Notice of Appeal. Accordingly, at first instance it is incumbent on the Appellant to establish its case and adduce compelling evidence in support of the same; with the Burden of Proof thereafter shifting to the Respondent to defend the probity of the Environmental Restoration Order dated 17th May 2017.

24. If an Appellant does not first establish its case and adduce compelling evidence in support of the same, the Burden of Proof does not shift to the Respondent at all. In those circumstances, that Appellant’s case would have been one of bare allegations and speculation.

25. On the other hand, once an Appellant has discharged its burden at first instance, it is then the burden of the Respondent to defend the decision that it had made; and specifically to show that it was factually sound, permitted within the provisions of the Environmental Management and Co-Ordination Act (EMCA), and permitted by any applicable wider principles of law or statutes.

Does the impugned decision seek to retrospectively apply the law as against the Appellant in a manner not provided for under the law?

26. The Appellant contends that the Respondent sought to retrospectively apply Regulation 31(1) of the Environmental (Impact Assessment and Audit) Regulations, 2003 ( “the Regulations”) against it. The Appellant further contends that the Regulations can only be applied prospectively unless the law expressly states otherwise, which in the present case the Appellant contends it does not.

27. On its part, the Respondent contends that Regulation 31(1) can be applied retrospectively.

28. Regulation 31(1) reads as follows:

31. Environmental audit study

(1) An environmental audit study shall be undertaken on the following development activities which are likely to have adverse environmental impacts—

(a) ongoing projects commenced prior to the coming into force of these Regulations; or

(b) new projects undertaken after completion of an environmental impact assessment study report.

29. We are clear in our minds that a plain reading of the text of Regulation 31(1) indicates that the same would apply prospectively and to ongoing projects commenced prior to the coming into force of those Regulations in the year 2003 OR to new projects undertaken after completion of an environmental impact assessment study report.

30. In the present case, the Appellant has adduced evidence that its development had been completed prior to coming into force of the Regulations, and that no new projects had been undertaken thereafter save for the construction of a small laundry room. The Appellant adduced a Site Plan for the Suit Property that was drawn and lodged in October 1995, a Deed Pan dated 14th May 1997 (Deed Plan No. 21252), as well as the sale agreement by which it acquired the already developed property. The Sale Agreement dated 28th April 2005 describes at Recitals (3) and (4) describes the project as at the time of the purchase.

31. Accordingly, the Tribunal finds that the Respondent erred in seeking to retrospectively apply the Regulation 31(1) as against the Appellant.

Are the buildings and developments in ‘Jade Valley’ within the Riparian Reserve?

32. In relation to the riparian question, the Environmental Restoration Order dated 17th May 2017 cited Section 41(1) of EMCA and Regulation 6 (c) of the Environmental Management and Co-ordination (Water Quality) Regulations, 2006 as the legal basis for its factual statements that the boundary walls and other permanent structures of the Suit Property were on the Kibagare River and its riparian reserve.

33. The Appellant has contended that at the time the project was undertaken, the building plans had been approved by the then Nairobi City Council and relevant offices; and no evidence existed that the boundary walls and permanent structures were on Kibagare River or within its riparian reserve.

34. On its part, the Respondent contends that the Appellant has not adduced any evidence in support of the above contention. The Respondent further contends that it produced a Site Inspection Report (marked as ‘NM1’) and a Report by the Water Resource Authority (marked as ‘NM3’) which the Respondent contends prove that the Appellant is in violation of Section 41(1) of EMCA and Regulation 6 ( c) of the Environmental Management and Co-ordination (Water Quality) Regulations, 2006.

35. From the outset, we wish to state that the allegations with respect to the riparian reserve were made by the Respondent through the impugned decision as well as the Site Inspection Report. It is therefore the burden of the Respondent to establish the probity of its allegations and to adduce evidence in support of the same. It cannot be the case that at first instance the Respondent can make such assertion in a Restoration Order and not have to sustain it. Bare allegations by the Respondent on questions riparian reserve encroachment would not convince this Tribunal to uphold a decision that the Respondent has issued.

36. The Respondent’s Site Inspection Report dated 25th August, 2017 was dated and issued after the impugned decision. Be that as it may, the Tribunal having considered the Report notes that the Report contends that the Kibagare River is the channel shown in the pictures within the Report. Similarly, the Environmental Restoration Order dated 17th May 2017 does not provide any evidence to support the Respondent’s contentions that the buildings and boundary walls are within the prohibited zone. The Report does not contain any measurements that specifically identify where the middle of the river and its high-water mark are, and where each building or structure lies in relation to the same.

37. Such measurements are contained with annexure ‘NM3’ of the sworn deposition of Mamo B. Mamo for the Respondent, which is dated 19th August 2020 and is the Respondent’s Second Further Reply to the Appeal. While the Respondent has characterized that annexed one-page document as a Report by the Water Resources Authority, the Tribunal noted the following:

a. The document is undated and is not on the letterhead of the Water Resources Authority;

b. The document is not signed; and

c. The document does not provide diagrammatic or pictorial representations in support of the tabulation contained therein.

38. For those reasons, the Tribunal finds that ‘NM3’has no probative value.

39. Turning back to‘NM1’, which is the Site Inspection Report dated 25th August 2020, the Tribunal notes that the Report contains pictures within it. The angles and perspectives of the pictures did not aid in establishing the Respondent’s allegation. Of the five (5) pictures, three (3) did not clearly depict a river, one showed the river but did not show any buildings or structures in relation to it, and the last which should a boundary wall neither showed the river nor any identifier which we could relate to the subject matter before the Tribunal.

40. This issue cannot be closed without the Tribunal addressing paragraphs (1) and (2) of the limited consent dated 25th October 2018 which was entered into by the Parties. Those two paragraphs read as follows:

1. “The appellant shall within 60 days from the date of this consent, remove the boundary concrete wall erected across River Kibarage (sic) on LR 22842;

2. “The appellant is at liberty to put up an environmentally friendly security boundary to replace the removed concrete wall subject to an approval to be obtained from the respondent.”

41. As stated at Paragraph 13(c) hereinabove, the Respondent is on record as accepting the alterations to the boundary wall and stating that there is no longer an environmental issue with respect to the boundary wall. That being the Respondent’s position and noting that the same flows from a limited consent between the Parties, the Tribunal cannot consider those two paragraphs of the limited consent or the question of the boundary wall within the context of the riparian reserve issue.

42. Accordingly, the Tribunal finds that there is no evidence that the buildings and developments in ‘Jade Valley’ are within the Riparian Reserve.

Did the Appellant alter the course of the Kibagare River?

43. Flowing on from its allegations with respect to riparian reserve, it was the position of the Respondent that the Appellant’s alleged encroachment was as a result of the Appellant’s alleged alteration of the course of the Kibagare River through canalizing the river.

44. Neither during the material time, nor in the course of these proceedings, has the Respondent adduced any evidence in support of its contention. The Tribunal notes that both the Environmental Restoration Order dated 17th May 2017 and the Respondent’s Site Inspection Report dated 25th August, 2017 directed the Appellant to conduct a survey to “determine the original course of the Kibagare River in consultation with Surveys of Kenya (SOK) and NEMA…”

45. It is clear that the Respondent had not at the material time established the original course of the Kibagare River. This would be a necessary first step before presentation of an allegation that the Appellant has altered the course of the Kibagare River.

46. As stated at paragraph 33 hereinabove, the Respondent has a burden to prove its allegations with respect to riparian reserve and also the alleged alteration of the course of the river by the Appellant.

47. It is not the Appellant’s burden to prove that the Respondent’s primary allegations are not true or factual. The Respondent must first establish and support its contentions as the party making the allegation before the Burden of Proof shifts to the Appellant. The Tribunal cannot establish a precedent where a general unsupported allegation by the Respondent in its capacity as the environmental regulator by default puts an Appellant on its ‘defence’ as it were. To do so would require Appellants to prove negatives. As Seaton, JSC noted in the Ugandan case of JK Patel vs Spear Motors Ltd [ SCCA No. 4 of 1991, [ 1993] VI KALR 85]

“The proving of a negative task is always difficult and often impossible, and would be a most exceptional burden to impose on a litigant.”

48. Accordingly, the Tribunal finds that there is no evidence that the Appellant altered the course of the Kibagare River.

Should the Appellant be ordered to conduct and submit a fresh Environmental Audit of ‘Jade Valley’?

49. The prayer for the Appellant to be ordered to conduct a fresh Environment Audit of ‘Jade Valley’ was contained in the Cross-Appeal that was abandoned by the Respondent. The Tribunal has identified this point as an issue for determination due to the fact that notwithstanding the withdrawal of the Cross-Appeal the Respondent sought to reintroduce the issue through its Respondent’s Reply to the Appeal sworn by Mamo B. Mamo on 19th August 2020 [ filed: 19th August 2020], which was subsequent to the Respondent’s Further Reply to the Appeal dated 21st January 2020. The Respondent also raised the issue in the Respondent’s Written Submissions dated 26th August 2020.

50. To our mind, after abandoning the issue through the withdrawal of its Cross-Appeal the Respondent erred in seeking to reintroduce the same through its Second Further Reply to the Appeal and through the Respondent’s Written Submissions. The Appellant had by that stage proceeded on the basis that the issue was no longer part of the Appeal, and it would be prejudicial to the Appellant for an earlier abandoned issue to be reintroduced at the 11th hour and without the opportunity for the Appellant to respond.

51. The Tribunal also notes that an Environmental Audit was one of the elements of the limited consent dated 25th October, 2018; and the Appellant submitted to the Respondent an Environment Audit pursuant to that limited consent. It is the Respondent’s position that it considered the same unsatisfactory and consequently it sought an express order from the Tribunal compelling to the Appellant to conduct and submit a fresh Environmental Audit. However, and noting that the issue stems from a limited consent by the parties, it would have been prudent for the Respondent to formally apply for such an order from the Tribunal within the course of the proceedings.

52. Accordingly, the Tribunal refrains from any analysis or determination of the issue of whether the Appellant should be ordered to conduct and submit a fresh Environmental Audit of the Suit Premises.

53. From the foregoing, we find that that the Appellant has proven its case against the Respondent.

Who should bear the costs of the Appeal?

54. Section 129 (3)(c) of EMCA allows the Tribunal to make orders including orders for costs. Rule 39 of the National Environmental Tribunal Rules, 2003 provides that the Tribunal shall not ordinarily make an order for costs and expenses unless it is of the opinion that the party has acted frivolously or vexatiously or that the appeal was wholly unreasonable. In the present Appeal, we do not find that the Respondent has acted frivolously or vexatiously or that its position at the material time and within these proceedings were wholly unreasonable.

Determination

55. The Notice of Appeal dated 30th June, 2017 is allowed.

56. Each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI, THIS 12TH DAY OF APRIL 2021.

Mohammed Balala ……………………………………………………………………………………… Chairperson

Christine Kipsang………….……………………………………….……………………………Vice Chairperson

Bahati Mwamuye….……………….………………………………………………………………………….Member

Waithaka Ngaruiya………………….………………………………………………………………………….Member

Kariuki Muigua…………………..……………………………………………………………………………….Member

This judgment was delivered by way of TEAMS in presence of counsel for all parties.