[2023] KEELC 17879 (KLR)

Wanyeki v Kenya Urban Roads Authority & 2 others; National Environment Management Authority & another (Interested Parties) (Environment & Land Petition E299 of 2022) [2023] KEELC 17879 (KLR) (25 May 2023) (Judgment)

Neutral citation: [2023] KEELC 17879 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition E299 of 2022

EK Wabwoto, J

May 25, 2023

Between

Lynn Muthoni Wanyeki

Petitioner

and

Kenya Urban Roads Authority

1st Respondent

The Hon Attorney General

2nd Respondent

Derow Construction Company Limited

3rd Respondent

and

National Environment Management Authority

Interested Party

Kenya Wildlife Service

Interested Party

Judgment

1. The Petitioner in her Amended Petition dated 17th March 2023 sought the following reliefs;i.A declaration do issue that commencement of the road project of construction of a 3. 2 kilometres four-lane Highway – dualling of Limuru Road (Forest Road junction to Muthaiga Road roundabout), implementation of phase 1 Tender KURA/RMFL/HQ/304/2022-2023 PROJECT without prior information to the Petitioner and other local residents concerning the project and prior public participation hearings on the impact of the project on the local environment, the impact of the project to the adjoining land/property/home of the petitioner and other residents, on the social well-being of the residents and the area’s biodiversity regarding the migration path of Sykes monkeys is unlawful and unconstitutional in violation of Articles 10, 35, 47 and 69(1) (d) and (e) of the Constitution.ii.A declaration do issue that commencement of the road project of construction of a 3. 2 kilometers four –lane highway- dualling of Limuru road (Forest Road junction to Muthaiga Road roundabout), implementation of phase 1 Tender KURA/RMFL/HQ/304/2022-2023 PROJECT whilst encroaching on the property/home of the Petitioner known as Maninga House on LR No. 214/707 (Original Number 214/279/2) situate at Old Muthaiga Estate along Limuru Road by excavating the Petitioner’s driveway leaving the gate entrance on a cliff without reasonable means of access to her home and demolishing a part of the perimeter wall, all without prior consultation, consent, hearing or compensation is unlawful and unconstitutional deprivation of property or interest in property or an easement and the right to fair administrative action in violation of Article 40(1) (3) (4) and 47(1) (2) of the Constitution.iii.A declaration do issue that commencement of the road project of construction of a 3. 2 kilometers four – lane highway- dualling of Limuru road (Forest Road junction to Muthaiga Road roundabout), implementation of phase 1 Tender KURA/RMFL/HQ/304/2022-2023 PROJECT involving cutting down of trees and vegetation without prior environmental impact licence from the Interested Party NEMA is unlawful and unconstitutional in violation of section 63 of the Environmental Management and Co-ordination Act, 1999 and in violation of the Petitioner’s fundamental rights under Article 42 of the Constitution.iv.A declaration do issue that commencement of the road project of construction of 3. 2 kilometers four lane highway- dualling of Limuru road (Forest Road junction to Muthaiga Road roundabout), implementation of phase 1 Tender KURA/RMFL/HQ/304/2022-2023 PROJECT involving cutting down of trees and vegetation that form a habitat and migration corridor for Sykes monkeys from City Park to Karura Forest without prior approval of the Interested Party is unlawful and unconstitutional in violation of Article 69(a) and (e) of the Constitution.v.A declaration do issue that the establishment by the 3rd respondent of a site for storing road construction materials and for parking of heavy road construction equipment upon LR No. 214/253 directly opposite the home of the petitioner without her consent or consent of the local residents association MRA and without obtaining prior change of user of the land from residential to non-residential is unconstitutional, unlawful and irregular in contravention of Article 66(1) of the Constitution and sections 4,57 and 58 of Physical and Land use Planning Act 2019. vi.A mandatory order/injunction do issue compelling the respondents jointly and/or severally to furnish the court and the petitioner with environmental impact assessment approvals and licences from the Interested Party NEMA for implementation of Phase 1 Tender KURA/RMFL/HQ/304/2022-2023 PROJECT road construction of a 3. 2 Kilometers four-lane Highway – dualling of Limuru Road (Forest Road junction to Muthaiga Road roundabout).vii.A Mandatory Order/Injunction do issue compelling the respondents jointly and/or severally to furnish the Honourable Court and the petitioner with clear and simplified information including the current road design and measures earmarked for ensuring noninterference, non–encroachment and non-degradation of the Petitioner’s property L.R. No. 214/707(Original Number 214/279/2 situate at the said Old Muthaiga Estate along Limuru Road and preservation of her right of access, ingress and egress.viii.An order of injunction and/or prohibition do issue restraining and/or prohibiting the respondents jointly and severally by themselves, their servants, agents, officers, contractors, workmen and or anyone acting or claiming under them from commencing and/or proceeding with or carrying out any form of actual road construction works of dualling of Limuru Road (Forest Road junction to Muthaiga Road roundabout) or executing phase 1 Tender KURA/RMFL/HQ/304/2022-2023 PROJECT in any way whatsoever.ix.An order of injunction and/or prohibition do issue restraining the respondents jointly and severally by themselves and/or their employees, servants, workmen and/or agents from commencing any actual road construction works, earth works, excavations or demolitions on or around or adjoining L.R. NO 214/707 Maninga House or interfering with the existing driveway, access, ingress to and egress from the property or any part of the perimeter wall of the said property situate at Old Muthaiga along Limuru Road.x.An order for general and exemplary damages for violation of the petitioner’s fundamental rights in declarations in prayers (i) and (ii) above.xi.Costs of this petition be borne by the respondents jointly and/or severally.

2. The subject petition was premised on various grounds alluded to and or enumerated in the body thereof and the same is supported by the Affidavit sworn by Lynn Muthoni Wanyeki on 23rd December 2022 and the further affidavit sworn on 17th April 2023.

3. The said petition was also opposed by the 1st and 2nd Respondent vide a replying affidavit sworn on 6th April 2023 by Engineer Benjamin Asin Mugada and Assistant Director in the Urban Roads Planning and Development Directorate of the 1st Respondent and also grounds of opposition dated 24th April 2023 filed by the 1st Interested Party.

The Petitioner’s case.

4. It was the Petitioner’s case that the Petitioner is the owner of all that parcel of land known as L.R. No. 214/707(Original Number 214/279/2) situate at Old Muthaiga Estate along Limuru road on which lies her residence known as Maninga House (hereafter “the petitioner’s home”) directly adjoining Limuru Road, Nairobi.

5. It was also the Petitioner’s case that the Petitioner’s said home is located on a migration route of a rare breed of Sykes monkeys (the Cercopithecus albogularis also known as the white- throated monkeys) that runs from City Park to Karura Forest.

6. It was contended that on 4th October 2022, the 1st respondent KURA contacted the Muthaiga Residents Association (hereafter “the MRA’) notifying MRA of a project for construction of a 3. 2 kilometers four – lane highway-dualling of Limuru Road (Forest road junction to Muthaiga Road roundabout) and furnished MRA with an Environmental and Social Impact Assessment (ESIA) Public Consultation Questionnaire concerning the project for MRA members to fill. That pursuant to paragraph 8 above, on 5th October 2022 the MRA emailed members conveying the said information and also circulated the ESIA questionnaire to members and the first road design of the project and that further the said email from MRA at paragraph 9 above was the first notice to the Petitioner about the subject road dualling project and upon noticing that the proposed road design was going to adversely affect her home by encroaching on her driveway and perimeter wall and cutting of trees on the said monkeys’ migration route the petitioner filled the ESIA questionnaire objecting to the whole project giving reasons as appropriate and returned the same to the MRA Secretariat for onward transmission to KURA.

7. It was averred that on 19th October 2022, the 1st respondent KURA convened the first Stakeholders meeting with the MRA members and informed the participants that a contract for the said road dualling construction had already been awarded to the 3rd respondent – Derow Construction Company Limited.

8. The Petitioner also stated that the said meeting of 19th October 2022 served as the first forum for the 1st respondent KURA to collect information on environmental and social impact concerns from MRA members and for the 1st respondent KURA to respond to the concerns on the floor of the meeting and that at the meeting of 19th October 2022 MRA members were surprised to be informed that the project contract to the 3rd respondent – Derow Construction Company Limited had commenced the same day, yet date on environmental and social impact (ESI) had not been collated, no reports in that regard had been approved by the Interested parties NEMA and KWS, no satisfactory responses were forthcoming from KURA on the floor of the meeting and MRA members were concerned that the meeting was merely a rubber stamp for an already commenced project.

9. It was also stated that as at 25th November 2022, without prior public participation, without prior approvals by the Interested Party NEMA, the 3rd respondent had already mobilized by pitching tent on LR No. 214/253 directly opposite the petitioner’s home as its holding yard for storage of road construction material and for parking of over thirty (30) pieces of heavy road construction equipment including caterpillars, heavy tractors, concrete mixers and trucks. The project drawings by the 1st respondent shown to the petitioner keep changing but are constant that a part of the perimeter wall of the petitioner’s home and almost the whole driveway to the petitioner’s home are earmarked for demolition and excavation leaving out only the entrance gate on a 10 (ten) metres cliff above the current Limuru Road level, effectively depriving the petitioner access, ingress to and egress from her home.

10. The court was also informed that on 23rd November 2022 during a site visit organized by the MRA to the petitioner’s driveway the 1st and 3rd respondents informally notified the petitioner of the imminent demolition of the driveway of her home and a portion of the home’s perimeter wall.

11. It was argued that the respondents have not shown to the petitioner any report of Environmental and Social Impact that the road construction project will cause or any Environmental Impact Licence issued by the Interested Party NEMA in approval of the project.

12. According to the Petitioner, by didn’t of Article 10,35,47 and 69(1) (d) and (e) of the Constitution the respondents were legally bound to furnish the local residents including the petitioner with information concerning the project and to conduct public participation hearings on the impact of the project on the environment, the impact of the project on the adjoining lands/property of the residents, on the social well-being of the residents and the area’s biodiversity regarding the migration path of the Sykes monkeys prior to commencement of the project.

13. It was contended that the design and drawing of the subject road while encroaching the driveway and perimeter wall of the petitioner’s home is unlawful interference, devaluation, deprivation or acquisition of private property or an interest thereof in violation of Article 40(3) of the Constitution.

14. It was further contended that the dualling of Limuru Road (Forest Road junction to Muthaiga Road roundabout) by the 1st and 3rd respondents without prior Environmental and Social Impact Assessment and Licence by the Interested Party is irregular, unlawful and in contravention of provisions of the Environmental Management and Coo-ordination Act and that no consent for change of user of the subject land from residential to non-residential use by the 3rd respondent has been sought from nor granted by the petitioner’s residents’ association the MRA nor the concerned statutory authority.

15. During the plenary hearing of the Petition, Learned Counsel Mr. Mureithi added that the amendment done to the Petitioner was just made to include the 2nd Interested Party since the Petitioner still relied on her previous affidavit, hence therefore the said petition was still valid.

16. It was also submitted that the EIA licence issued herein was issued after the commencement of the project. The court was urged to grant the relief sought in the said petition.

The case of the 1stand 2ndRespondents.

17. The 1st and 2nd Respondents filed a replying affidavit sworn by Eng. Benjamin Asin Mugada on 6th April 2023.

18. It was the 1st and 2nd Respondents case that the amended petition is incurable defective and incompetent and that the same ought to be struck out for want of a supporting affidavit.

19. Eng. Benjamin Asin Mugada deposed that the Environmental and Social Impact studies for the said road project had been done and it was submitted to NEMA on 23rd December 2022 under Ref NEMA/NRB/PR/5/1/17966.

20. It was also averred that no actual or physical works for the project were yet to commence and what was going on at the site was the continued stakeholder consultations, project design reviews and contractor mobilization in preparation for actual commencement.

21. It was further amended that NEMA had issued the 1st Respondent with an EIA licence and that the planned works were merely seeking to widen the road which already exists.

22. The 1st and 2nd Respondent also contended that stakeholder consultation is a continuous activity and ongoing and that the petitioner is opposed to this project without any justifiable reasons.

23. Learned Counsel Mr. Motari submitting on behalf of the 1st and 2nd Respondents urged the court to struck out the petition for the reasons advanced in opposition to the said petition.

The case of the 1stInterested Party. 24. The 1st Interested Party filed grounds of opposition dated 24th April 2023. It opposed the petition on the ground that the EIA licence had only been issued on 5th April 2023 and as such the petition ought to have challenged the same at the National Environment Tribunal as stipulated under section 129 of EMCA and further as was held in the Supreme Court of Kenya decision of Benson Ambuti Adega & 2 others –Vs- Kibos Distillers Limited and 5 others (2020) eKLR.

Analysis and determination 25. The court has considered the case put forward by the Petitioner, the Respondents and submissions made by Counsel and the authorities referred to therein, and is of the view that the following are the main issues for determination: -i.Whether the amended petition is incompetent for want of a supporting affidavit.ii.Whether the Respondents violated any of the petitioner’s right herein.iii.What remedies or reliefs are appropriate to issue hereinIssue No. IWhether the amended petition filed herein is incompetent.

26. The 1st and 2nd Respondent contended that the Amended Petition is incurable defective thus incompetent for want of a supporting affidavit since the same was unsupported by evidence as the only affidavit on record was one that was filed earlier.

27. In countering this position, the petitioner reiterated that the same was not fatal since the amended petition was only filed to introduce the new parties being the 2nd Interested Party Kenya Wildlife Service. She also stated that the amended petition was still being supported by the two previous affidavits which were still on record.

28. It is clearly stated under Article 22(3) (d) and Article 159(2) (d), that Court in dispensing justice should not pay undue regard to procedural technicality. Article 22(3)(d) provides;“22. Enforcement of Bill of Rights

(3)The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—(d)the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities;”Article 159 (2) (d) of the Constitution provides;“159. Judicial authority(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(d)justice shall be administered without undue regard to procedural technicalities;”

29. Rule 4 of the Mutunga Rules provides that where a right or a fundamental freedom provided for in the constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may accordingly make an application to the High Court. The Application is provided for under Rules 10 and 11 of the Mutunga Rules. Rule 11(2) of the Mutunga Rules particularly provides for;“If a Party wishes to rely on any document the document shall be annexed to the supporting affidavit or the Petition where there is no supporting affidavit.”

30. From clear reading of Rule 11(1) of the Mutunga Rules, it appears in my view that a Petition may be filed without a supporting affidavit. The word used is “may be supported by an affidavit” which to me is not mandatory to file all petitions with supporting affidavit. However, there is no bar where a party wishing to rely on any document, to annex the document to the supporting affidavit or the petition where there is no supporting affidavit. It therefore follows if a party has to attach an affidavit it has to be properly drawn, signed, dated and commissioned but it appears there is no bar where a party do not wish to file an affidavit, to attach the document to Petition even without a supporting affidavit.

31. In addition to the above Rule 10(3) of the Mutunga Rules provides:“Subject to Rules 9 and 10 the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.”

32. In view of the foregoing, I am unable to uphold the 1st and 2nd Respondents contention to have the amended petition struck out for want of a supporting affidavit.Issue No. IIWhether the Respondent’s violated any of the Petitioner’s right herein.

33. It was the Petitioner’s case that since the commencement of the road project contract on 19th November 2022 and actual mobilization of construction materials and equipment on or about 25th November 2022 no EIA report/study had been furnished to her or to her residents’ association or to any of her advocates having conduct of the matter.

34. It was also submitted that the existence of a migration path for the white throated Sykes Monkey’s along the subject road construction had not been denied and the concerns of the Petitioner concerning disruption of the migration path as a result of constructing a dual carriage highway had not been adequately addressed by the respondents herein. The cutting down of vegetation and trees had been admitted by the Respondents yet there is no report on preservation of any vegetation or regulation of vegetation and further no evidence had been availed that the Respondents had consulted the 2nd Interested Party Kenya Wildlife Service on the matter.

35. The rights under the Bill of Rights are specifically spelled out in our Constitution. A Petitioner seeking reliefs based on violation of the Bill of Rights is under obligation to set out with some level of particulars of the specific rights allegedly breached and indicating how they have been violated. The principle is well settled as set out in the case of Anarita Karimi Njeru v. Republic No. 1 (1979) 1 KLR, 54 and firmly engrained in the case of Mumo Matemu v. Trusted Society of Human Rights Alliance Civil App. 290/2012 (2013) eKLR. The Court in the Anarita case (Supra) held thus:-“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complaints, the provision said to be infringed, and the manner in which they are alleged to be infringed.”

36. The Petitioner complained about lack of meaningful public participation as one of the grounds the Petition. The 1st and 2nd Respondents disagreed with the Petitions and were in unanimity that indeed there was adequate public participation which met the Constitutional threshold.

37. Article 10 (2) a of the Constitution outlines participation of the public as one of the national values and principles of governance which bind all state organs and public officers. Article 69(1) (d) of the Constitution provides that the State shall encourage public participation in the management, protection and conservation of the environment.

38. The Second Schedule of EMCA as amended vide Legal Notice No. 31 of 30th April 2019 lists activities for which an environmental impact assessment study is required unless exempted by the National Environment Management Authority (NEMA).

39. Facilitation of public participation is key in ensuring legitimacy of the law, decision or policy reached. On the threshold of public participation, the Court of Appeal in Legal Advice Centre & 2 others v County Government of Mombasa & 4 others [2018] eKLR referred to Independent Electoral and Boundaries Commission (IEBC) vs. National Super Alliance (NASA) Kenya & 6 others [2017] eKLR stated as follows: -“the mechanism used to facilitate public participation namely, through meetings, press conferences, briefing of members of public, structures questionnaires as well as a department dedicated to receiving concerns on the project, was adequate in the circumstances”.

40. It is common cause that the commencement of the road herein could not have been undertaken unless an EIA in respect to the said project was done. There was evidence adduced that the said project commenced without an EIA licence which was later issued on 5th April 2023. Clearly then the activities prior to the date of the licence issued on 5th April 2023 contravened the law and in particular section 58 of EMCA and Regulation 4(1) of the Environmental (Impact Assessment and Audit) Regulations 2003.

41. Article 42 of the Constitution provides:“42. Every person has the right to a clean and healthy environment, which includes the right-

a.To have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; andb.To have obligations relating to the environment fulfilled under Article 70. ”

42. To therefore proceed with the implementation of the project without the approval of the E.I.A report was to proceed without an approved determination as to the possible Environmental impacts of the project. The 1st Respondent’s conduct did not have due regard to whether or not the project could possibly have an adverse impact on the Environment. It was also indifferent as to what decision NEMA might eventually make as to the project. Because of these, it is the finding of this Court that the implementation of the project in the pre-license period was contrary to the law and was a threat to a clean and healthy environment.

43. With regard to Article 35 (1) (b) of the Constitution, it states that ‘Every citizen has the right of access to information held by another person and required for the exercise or protection of any fundamental right or freedom.’ In my view, in order to enforce this right, a citizen claiming a right to access information must not only show that the information is held by the person from whom it is claimed; the citizen must go further and show that the information sought is required for the exercise or protection of another right. In this Petition, the petitioner alleges that its right to access to information held by the 1st respondent was violated. Access to information is a fundamental right enshrined at Article 35 of the Constitution of Kenya. In the instant case, the Petitioner herein had and still has an alternative dispute resolution mechanism which is available under section 14 of the Access to Information Act, which Act gives effect to Article 35 of the Constitution.

44. In the case of Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] eKLR, the court held that,“Further, a duty has also been imposed upon the citizen(s) to follow the prescribed procedure whenever they require access to any such information. This duty cannot be abrogated or derogated from, as any such derogation would lead to a breach and/or violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law. It is a two way channel where the right has to be balanced with the obligation to follow due process.”

45. No evidence was adduced that the Petitioner had sought intervention as provided for under Section 14 of the Access to Information Act. As such it is the finding of this Court, that the Petitioner’s contention that there right to access to information was violated cannot hold.Issue no. iiiWhat are the appropriate remedies to issue herein

46. Courts are increasing faced with numerous petitions where project properties commenced projects in total contravention of the law and the constitution. This has prompted several parties to seek courts intervention whenever such incidences occur. The case in point is non-exception. Court of law cannot be used to sanction and validate an illegality.

47. In the instant case, the Petitioner sought for several declarations of violation of her rights to public participation, freedom of information, protection of private property, fair administrative justice and environmental rights among others. The Petitioner also sought for an injunction/prohibition specific to restraining roadworks around her property intended to preserve her right of access to her property and preservation of her driveway with damages and cots of the petition.

48. Whereas the Petitioner has failed to prove the infringement of its right under Article 35 of the Constitution. It has nevertheless been proved that the 1st Respondents’ impugned project was commenced contrary to the applicable environmental laws and regulations.

49. In the instant petition, the Petitioner sought for an award of Kshs 3,000,000/- as general damages for violation of her fundamental rights under Article 35,40 and 47 of the Constitution and further this was also in respect to the encroachment of her driveway and perimeter wall. The court has been able to make a finding that there was a violation of some of the Petitioners rights and as such she is entitled to some general damages and in the circumstances and having considered the authorities cited, I will grant her Ksh 1,000,000/- as general damages.

50. On the issue of costs, the court has discretion to grant costs. Ordinarily, costs usually follow the event unless special circumstances are presented. In the instant petition, the petitioner having partially succeeded in her claim, I will make an order that each party do bear own costs of the petition.

Disposition 51. In the end, the Amended petition dated 17th March 2023 partially succeeds and is determined in the following manner: -

i.That it is hereby declared that the commencement of the road project of construction of a 3. 2 kilometres Limuru Road Phase 1 (Forest Road – Junction- Muthaiga Road Junction and associated works) is unlawful and unconstitutional in violation of Articles 10, 47 and 69 (1) (d) and (e) of the Constitution.ii.A declaration be and is hereby issued that commencement of the dualing of approximately 3. 2 km length Limuru Road Phase 1 (Forest Road/Prof. Wangari Mathai Road Junction - Muthaiga Road Junction) while excavating the Petitioners driveway leaving the gate entrance on cliff without reasonable access to the home and demolishing a part of the perimeter wall without compensation is unlawful and unconstitutional deprivation of property or interest in property or any easement and the right to fair administrative action in violation of Article 40(1) (3) (4) and 47(1) and (2) of the Constitution.iii.A declaration be and is hereby issued that the commencement of the dualing of approximately 3. 2 km length Limuru Road Phase 1 (Forest Road/Prof. Wangari Mathai Road Junction- Muthaiga Road Junction) and cutting down of trees and vegetation without prior Environmental Impact Assessment license from NEMA is unlawful and unconstitutional and a violation of section 58 and 63 of EMCA and the Petitioner’s fundamental rights under Article 42 of Constitution.iv.A declaration be and is hereby issued that the commencement of the dualing of approximately 3. 2 km length Limuru Road Phase 1 (Forest Road/Prof. Wangari Mathai Road Junction- Muthaiga Road Junction) involving cutting down of trees and vegetation that form a habitant and migration corridor for Sykes Monkeys from City Park to Karura Forest without prior approval of the 1st and 2nd Interested Parties is unlawful and unconstitutional and in violation of Article 69(a) and (e) of the Constitution.v.General damages of Kshs 1,000,000/- is awarded to the petitioner and shall be paid by the 1st Respondent.vi.Each party to bear own costs of the petition.Judgment accordingly.Dated, Signed and Delivered virtually at Nairobi this 25thday of May 2023. E.K. WABWOTOJUDGEIn the presence of:-Ms. Gikonyo h/b for Mr. Mureithi for Petitioner.Mr. Motari for the 1st and 2nd Respondents and also h/b for Ms. Sakami for 1st Interested party.Ms. Feta for 2nd Interested Party.Court Assistant – Caroline Nafuna.ELC MISC PET NO E299 OF 2022 JUDGMENT 0