[2007] KENET 2 (KLR)

REPUBLIC OF KENYA IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI

Appeal Net 09/2006

1. WE CARE ABOUT NAIROBI DO IT………........……1ST APPELLANT (S)

2. KYUNA & SHANZU ROAD RESIDENTS…………....2ND APPELLANT (S)

VERSUS

1. NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

(NEMA)...................................................................................1ST RESPONDENT

2. M/S. HOUSES AND PLOTS LIMITED................. .…….2ND RESPONDENT

RULING

1. By Notice of Appeal dated 29 June 2006 filed in the National Environment Tribunal on 30 June 2006, the Appellants namely, We Care About Nairobi Do It (hereinafter, the 1st Appellant) and Kyuna and Shanzu Road Residents Association (hereinafter, the 2nd Appellant, together referred to as the Appellants) entered an Appeal against the Director General, NEMA (hereinafter, the 1st Respondent) and the proponent of the project, House and Plots Limited (hereafter, the 2nd Respondent), challenging NEMA's initial approval of EIA report for the proposed construction of twenty three houses on LR 7158/53 subsequently LR7158/385-388 without approved architectural and structural plans and amalgamation of plots, LR number 7157/385, 386, 387 and 388 without approvals. The Appellants requested the Tribunal to order demolition of the illegal structures.

2. The Appellants subsequently applied and were granted permission to amend their grounds of appeal, which they did by notice dated 17 November 2006, filed in the Tribunal on 21 November 2006.

3. The amended appeal comprised the following grounds:

i. The Appellants had raised objections against the 1st Respondent’s approval on 14th June 2005 of the EIA report submitted by the 2nd Respondent, long before the 2nd Respondent started construction on the said plots;

ii. The 1st Respondent neglected or failed to take action at that stage;

iii. The 2nd Respondent gave false information to the 1st Respondent in support of the application for an EIA license;

iv. The 1st Respondent neglected or failed to publish the 2nd Respondent's EIA application in the Kenya Gazette and in a local newspaper;

v. The 2nd Respondent took advantage of the 1st Respondent's negligence or failure to take action and proceeded with construction of the proposed structures, now in dispute; and

vi. Despite canceling the approval of the EIA Project Report (which the 1st Respondent did on 18th April 2006), the 1st Respondent did not exercise its powers to order demolition of the illegal structures and restoration of the environment.

4. The 1st Respondent filed a reply dated 16th of August 2006. They also filed a notice of preliminary objection challenging the jurisdiction of the Tribunal to grant the prayer sought and termed the Appeal as misconceived and legally unsound.

5. In the reply, the 1st Respondent also stated;

i. It had not approved any EIA report in relation to plot nos. 7158/385, 386, 387 and 388, the subject matter of the appeal;

ii. There was no decision of the 1st Respondent for consideration by the Tribunal;

iii. The Tribunal was not the proper body to address any concerns, if at all the Appellants had any, and that the issues framed were totally beyond the jurisdiction of the Tribunal;

iv. The Tribunal lacks jurisdiction to make orders sought and must not be seen to act in vain;

v. The appeal by the Appellants was misconceived and an abuse of the Tribunal process as envisaged under the Environmental Management and Coordination Act; and

vi. The 1st Respondent finally urged the Tribunal to dismiss the Appeal with costs to the Respondents.

6. In its Ruling of 25 January 2007 on preliminary matters, the Tribunal disposed of the preliminary objections and decided that the matter proceeds to consideration on its merits.

7. The 2nd Respondent’s response was not by way of a formal rebuttal in pleadings. However, the 2nd Respondent submitted documents, and through evidence, responded as follows: -

i. The approval granted by NEMA in their letter of 17 May 2005 addressed to the proponent remains valid;

ii. The proponent has observed all the conditions 1,3,4,5 & 6 set out in NEMA's letter of approval and that condition No. 2 remains to be fulfilled;

iii. The proponent having met the conditions and paid fees thereafter is entitled to have a license issued to it; and

iv. The appeal be dismissed with costs to the 2nd Respondent.

8 During the proceedings, the parties were represented as follows: the Appellants, by Mr. Richard Masinde, an employee of the Appellants; the 1st Respondent during the preliminary objection and subsequent hearing by Mr. Kibanga of Muchiri Munga and Kibanga Advocates, and the 2nd Respondent initially at the preliminary objections stage by Mr. Mureithi, Advocate, and later by Mr. Kibuchi of M/s. Kibuchi and Co Advocates.

9. The 1st Respondent, in their submission reiterated that: -

i. The Appellants had sought no orders of the Tribunal directed at NEMA and the demolition which was requested would be directed at the 2nd Respondent.

ii. The evidence of the Appellants’ witnesses alleging that the structures were illegally put up had been controverted by the witnesses of the 2nd Respondent.

iii. The Tribunal should find that the 1st Respondent had discharged its obligations properly.

iv. The Tribunal should make no order as to costs against the 1st Respondent.

10. To fully appreciate issues under contention, the Tribunal, along with counsel of the parties, visited the site on 12 February 2007. The land is sloppy with houses under construction; there is a river (Kibagare River) at the bottom where trees had been cut and stumps spread out and only a few old trees remained standing by partly built up houses. Counsel had been insistent that the Tribunal sees the site before hearing witnesses, and it did. Explanations were given at the site on various matters raised by the Tribunal members and the counsel.

11. Counsel also supplied additional documents, including: the 2nd Respondent’s bundle; the EIA Report to NEMA; and the interim report of Local Physical Development Plan, Policy Review for zones 3, 4 & 5, dated 3rd July 2006 by the Department of City Planning, City Council of Nairobi. Due to the late availability of the last mentioned of the documents, its import could not be fully argued. According to the Tribunal's Rules of Procedure, all documents to be relied upon should be filed on a timely basis.

12. Appellants called two witnesses, Yasmin T. Jadavji (a social worker and the Chairlady of the 2nd Appellant) and David T. Muchiri (Architect, registered with NEMA as an environmental expert). The 1st Respondent called one expert witness, James Kambo Mutusi, a consultant working in the firm that prepared the EIA Report, since the expert who prepared the report was said to be out of the country. The 2nd Respondent called two witnesses; Timothy S.G. Makunda, (former Director, Physical Planning Department in the Ministry of Lands and Settlement) and Kennedy Otieno Agwaro (Architect in private practice, working as a partner in the company that was responsible for the project). The City Council also provided, at the request of the Tribunal, an officer and friend of the Tribunal to clarify the policy of the City Council of Nairobi in Zone 5 where the project in question is located.

13. The Appellants’ witnesses explained the efforts they made to find out what was going on at the site, particularly when they saw a bulldozer pulling down trees and levelling the ground, and their efforts, through letters and visits to have NEMA explain what was going on. They also visited both the City Council and NEMA offices around March 2006. They were alarmed to find that plans and the EIA report were approved against a title that was non-existent having been surrendered 16 years ago. Both NEMA and the City Council were thereby misled. A certified copy of the title, LR number 7158/53 was produced.

14. The proponent had sought approval for 23 houses but 16 were approved by the City Council in February 2005. It was pointed out that by July the same year, another plan was approved against the same title for seven houses, bringing the total number of houses to be constructed on the site to 23. By Enforcement Notice dated 20th March, 2006, the council stopped construction of the 23 houses on the grounds, among others, that the developer had added 4 masionnetts, contrary to the approved building plans.

15. The number of houses approved for construction changed yet again, from 23 to 20. This followed a re-submission by the developer of new building plans which resulted, this time, in an approval for the construction of 20 masionettes by letter dated 21st September 2006, to which was attached a site plan showing three proposed houses not to be built.

16. The challenge by the residents was whether an area of 2 acres was environmentally suitable for holding as many houses as 20. The residents in the area protested against this and also against the way the EIA was carried out without proper public participation and due notices availed on site and in the media. They were hardly convinced that announcement in Kenya Times constituted due notice.

17. The witnesses for the 1st Respondents explained what they did, and exonerated themselves by stating that NEMA received the EIA report, and although against LR 7158/53, they had believed the title was still valid. NEMA had subsequently cancelled its approval by letter dated 17th May 2005, citing the fact that the 2nd Respondent had not accepted the approval conditions.

18. The 2nd Respondent’s witness, Mr Makunda explained the change of user process that they had carried out, culminating in an approval of change of user from single to multi-dwelling residential housing by the City Council of Nairobi on 29th November 2006. The witness also explained that the initial application for development permission had been on LR No. 7158/53. However, they were simultaneously pursuing amalgamation of four separate plots. Amalgamation was approved by the City Council on the same date aforesaid. The proponent’s witnesses contended that a change of user had been carried out and that the approvals were fully cognisant of the laws of the Council and in line with EMCA and the Regulations made thereunder.

19. It was alleged by the Appellants that the conditions by NEMA had hardly been observed by the proponent: a wetland had been interfered with, trees had been cut and appropriate distance from highest water mark ignored given that some houses were under construction too close to the river; construction of a swimming pool was also planned and green spaces were non-existent, in every case, replaced by concrete at the estimated ground coverage of 80-90 percent (Appellant’s estimation) including the houses. The Appellants expressed concern that the environment had been degraded by cutting trees without planting any as indicated in the EIA report.

20. The counsel for the Respondent and witness strenuously denied any wrong doing by the proponent and inadequate EIA report and consultations on the project with neighbours. They admitted that a few trees had been cut (about ten) and in the reports availed to the Council and NEMA the proponent had provided all information required for change of user, indicating the plots in question. The proponent, they argued, had broken no law, and the issues raised on slope, tree planting, planting creepers wall retention had been covered in the EIA report. The Respondents explained that trees and creepers would be planted in due course to avoid their damage during construction.

21. It was reiterated by the Respondent’s witnesses that current approval of design of houses is for twenty, based on four amalgamated plots. The place has a 9-inch sewer line that would carry liquid waste or waste water satisfactorily. It was further stated that the 6-metre riparian reserve underscored by NEMA’s conditions had been observed as well, as demonstrated by pegs that NEMA’s District Environment Officer had planted.

22. The witnesses explained that they had amalgamated four plots, one of which had been exchanged with another land owner in order to have one consolidated piece of land. These events were painstakingly explained to demonstrate there was no intention to conceal or falsify any information. But differences of view on applicable policy in Zone 5 remained. These were: the number of houses that could be built on the two acres; plinth area, ground coverage, and density applicable; the marshy wetlands -whether the marshy wetlands had been interfered with, and what to do with the three houses or so in that area; the amount of green spaces and play ground still available and whether a swimming pool need be constructed.

23. Even after the reduction of the number of houses from 23 to 20 at the top of the plot, leaving an area without houses, the houses constructed are practically along the riparian reserve, demanding therefore the determination if these houses should or should not be demolished. The Appellants maintained some houses be demolished while the proponent maintains adherence with the law has been observed and that policies are simply not binding as they are mere guidelines. The Appellants maintained that in any case approval of 20 houses by the Council is still valid.

24. The documentation availed and uncontested and in fact admitted showed that the EIA report had been approved and approval was conveyed to the Director, Houses and Plots Ltd. on 17 May 2005 by NEMA in its communication containing six mandatory conditions. This had been followed up with further letters from NEMA officials. For example letter dated 11th August 2005 by S. M. Langwen to the 2nd Respondent stated that “You are required to confirm in writing that the conditions of approval shall be complied with to enable the Authority process the EIA licence.” No evidence was adduced that the required confirmation was forthcoming. Two further letters of 17th March 2006 and 18th April 2006 by the NEMA Compliance Director and his deputy respectively stated that: -

i) “Ground investigations and complaints from the neighbours indicate that you have contravened the conditions set out in the Environmental Impact Assessment (EIA) approval letter dated 17th May 2005. The Authority hereby orders you to STOP abstraction of water from river Mathari for construction Activities, STOP any further Construction within the riparian reserve.”

ii) “Cancellation of Approval for the Environmental Impact Assessment Project Report...” “You have not consented to adherence of conditions of approval, you have contravened the conditions set out in the approval letter, there is substantial change in the manner the project is being implemented, you are advised to comply.”

25. Equally, the City Council of Nairobi, on the basis that the initial approval of plans had been granted on the basis of misleading information, nullified the approval. The relevant minutes, Town Planning Committee Minutes of 11/5/2006, paragraph 24 state as follows:

“Under minutes 7(p1114) and 6 (p1459) of the meeting of this Committee held on 17th February 2005 and 23rd September 2005, approval was given for building plans registration Numbers DW795, DY 367 under items 205 and 301 respectively L.R. Number 7858/53.

The Director of City Planning reported that the plans were approved on wrong information since L.R. Number 7158/53 measuring about 1. 328 hectares as per survey plan F/r number 3/637 of 1932 had been subdivided into six subplots and the same registered into separate titles in the early 1990's and hence L.R. Number 7158/53 had ceased to exist.

He recommended that the approval of the mentioned building plans be nullified. Resolved: That the recommendation of the Director of City Planning be approved. Action by Director of City Planning.”

26. Counsel for NEMA argued throughout that there was no NEMA decision that warranted its being involved in the appeal because at the time of filing the appeal, NEMA had cancelled the approval it had granted in May 2005. The 2nd Respondent argued that the cancellation/revocation was not in line with the law as per section 67(1) of EMCA. The Standards and Enforcement Review Committee ought to have been involved, to advise the Authority which earlier granted approval of EIA, subject to conditions and that upon acceptance, in writing of the conditions, a licence would be processed. No such reference to such a committee had been made. They argued therefore, that the approval is still valid.

27. Counsel for the 2nd Respondent summarised his argument thus: that the approval given by NEMA for the project report carried the same effect as a licence, because the proponent had done all that was required of it and the actual licence was a mere formality. In any case, the licence is not a mandatory document for the proponent to have before proceeding with implementation of the project. It should be noted that Regulation 28(1) reads “the Authority may issue the licence in Form 3”. The word used is “may” not “shall”. The issue of a licence under Regulation 28(1) is therefore not mandatory. The Authority having assured the proponent that all was in order, there was no further action required on the part of the proponent and the proponent accordingly proceeded with the project.

28. In its communication of 18th April 2006, NEMA had stated, among others things, that the proponent had not accepted the conditions, and most important that “you have contravened the conditions set out in the approval letter; there is substantial change in the manner the project is being implemented.” (underlined for emphasis). In the course of the proceedings the thrust of this letter was contested.

29. It is apparent from the evidence and documentation availed that some confusion did arise in submitting plans to the Council using a non-existent title – one that had been surrendered. In fact, the title had been submitted in support of two applications, for sixteen houses and for seven houses. The same title had been submitted along with the EIA report to NEMA. This matter caused suspicion and lack of understanding and transparency.

30. The other issue was that while the City Council was the appropriate authority to approve the construction of the twenty houses other issues arise with respect to some other matters among them:

i. Whether NEMA was right in law to cancel approval of the EIA: whether because an approval no longer existed, NEMA was therefore off the hook on this matter;

ii. Whether the riparian reserve was respected or not and the status of this practice;

iii. Whether demolition and new EIA study should be carried out or what other orders should be issued; and

iv. Whether there were consultations with the neighbours as required by law or not, during the EIA and change of user processes.

31. Once an EIA approval (whether or not conditional) has been given and an indication given that a licence is being processed by NEMA, is cancellation/revocation an option open to NEMA? There is no express provision on the matter. The EIA Regulations which provide for an EIA approval do not provide for cancelling or revoking an approval. However, Section 67(2) of EMCA provides that an EIA licence can be revoked, suspended or cancelled. On this analogy, it stands to reason that an approval can also be cancelled in appropriate cases. However, despite cancellation of a project approval, NEMA retains its regulatory role over the project or activities undertaken pursuant to approval. NEMA cannot abdicate its statutory responsibility as argued by their Counsel.

32. In addition, the provisions of section 64(1) .are that where a letter of approval leading to the processing of an EIA licence has been issued, the holder of such a licence (in this case, letter of approval and payment of licence fees and adhering to conditions) should submit a fresh EIA study within such time as the Authority may specify where-

i. there is substantial change or modification in the project or in the manner in which the project is being operated.

ii. it is established that the information or data given by the proponent in support of his project application for an EIA licence under section 58 was false, inaccurate or intended to mislead.”

These two provisions were not invoked by NEMA.

33. NEMA stated as a justification for the cancellation of approval of the EIA Report that the 2nd Respondent failed to accept the conditions for approval. The proponent was requested to respond but admittedly did not do so. What was the effect of the proponent’s non-response to NEMA’s approval conditions? The proponent simply proceeded with construction. It explained that through oversight, it did not write back. In the meantime the NEMA official in Westlands had visited the site and seen what was being done. It may not have been too much to explain before effecting the cancellation, that no response had been received. In the view of the Tribunal, this reason cannot be sustained.

34. The reasons given by NEMA for cancellation were not in line with the procedures laid down in EMCA and the Tribunal concurs with the 2nd Respondents’ Counsel. Such an approach in circumstances where nearly one year of actual work on the project has been undertaken, which was being implemented with NEMA’s knowledge, was neither justified nor lawful. Accordingly, the Approval is still valid.

35. It is also clear that if the proponent, had seen it fit, it could have, upon receipt of the letter of cancellation/revocation, which constituted adverse action by NEMA, lodged an appeal to NET challenging such a decision.

36. There was a question as to whether the riparian reserve had been observed and whether it is known in law. Observance of the riparian reserve was one of the conditions given by NEMA and has been a condition given consistently in developments alongside rivers. For example in A.T. Kaminchia vs. NEMA & M/S Bell Ways Garden Limited (Tribunal Appeal No. NET/05/2005 of 2005). In the present case, the Appellants averred that the reserve was not respected and that four houses were set to be put in the area. Firm land inside this area would mark the end of the reserve from the highest water mark as argued by the Appellants. The 2nd Respondent argued that they observed the reserve.

37. The issues were, however, firstly, the way to establish the reserve in the circumstances of a river that had been canalised on either side of the property, and that the 6-metre rule was a guideline and therefore not legally binding. Clearly how to fix this matter has been and is an issue of debate to be determined in the circumstances of each case. In the A.T. Kaminchia vs. NEMA & M/S Bell Ways Garden Limited, the Tribunal had recognised it. In the present case, NEMA official had placed sticks showing that the two houses already substantially constructed were outside the 6-meter area as measured from the middle of the river. Secondly, this condition had been given in NEMA's letter of 17th May 2005 and had not been challenged by the 2nd Respondent, who could not, at this stage, be contesting the validity of requiring the 6 metres. Thirdly, whatever the status of the practice may have been, it is currently no longer an issue. Legal Notice Number 120 of 2006, Water Quality Regulations Section 6 (b) provides that:

“No person shall cultivate or undertake any development activity within full width of a river or stream to a minimum of six metres and a maximum of thirty metres on either side based on the highest recorded flood level.”

38. As the NEMA officer who visited the site had accepted that the two houses were outside the six-metre reserve and the proponent had acted on it to construct the houses, it is not necessary that the Tribunal pronounces itself on the point at this stage. It notes, however, that for the future, LN 120 of 2006 has settled the matter.

39. Turning to the question whether demolition, a new EIA or other orders should be issued, the Tribunal notes that investment in housing in cities and towns throughout Kenya has been and continues to be an important and critical matter. As public spaces and facilities are taken, legally or otherwise, reducing drastically green spaces and playgrounds for present and future generations, it becomes obvious that any complex of houses built together must integrate green spaces and facilities in such complexes. Considerations of financial gain have undermined this crucial principle, often times establishing a lesser facility in a swimming pool, in place of green spaces and facilities.

40. An upcoming project like the one under discussion has a moment to rectify such a weakness, if the Tribunal may so candidly refer to it so. In the redesign and engineering of walls that separate buildings and that are geared to arrest collapse of cuts in soil structures, and realign the complex attractively, vital environmental and health concerns should be fully integrated in shared public spaces for common management.

41. It is therefore incumbent on the cities, and elsewhere in the country, County Councils or Town Councils a long with NEMA and planning authorities under relevant legislation (caps 265, and 286) to exercise approval, supervisory and guidance roles to ensure that developers do not only scoop profits but offer prospective buyers facilities which their children and descendants could enjoy for many years, without incalculable problems arising from inadequate attention at planning and implementation stages.

42. The Appellants challenged the cut-and-fill method of leveling the ground, the steep slopes without retainer walls to prevent future collapses and without breaks to stop water rushing down and ending up in the river. They also challenged the distance between one property to another neighbouring property and wished that walls be reinforced to sustain weight from compacted soil and concrete. Another concern was the 9-inch sewer pipe, which may not, for long, sustain waste water from the increasing developments in the area. Other services, like water and electricity, are of concern because they are already strained. Traffic and noise are also of concern. They argued, therefore, that the Council and NEMA should ensure that appropriate laws and policies are stringently applied. In fact they stated the Council has not been applying or has been disregarding its laws.

43. NEMA received an EIA study, acknowledged its receipt and later wrote to the proponent communicating approval of the EIA Report on 17 May 2005 as stated herein. When an opportunity arose to ask for a new EIA report because of alleged substantive changes, NEMA did not take that option. Given the foregoing, should a new EIA study report be called for as urged of the Tribunal by the Appellants? The Appellants asked the Tribunal to do what NEMA should have done in law, and in this respect section 129(3) (b) provides that: “Upon any appeal, the Tribunal may: exercise any of the powers which could be exercised by the Authority in the proceedings in connection with which the appeal is brought.” The Tribunal is, therefore, empowered to step into the shoes of NEMA. The Tribunal has done so in some of previous appeals before it, and it will do so to the extent deemed necessary in this matter.

44. There was also the issue of public notification and participation. This is a principle of crucial importance. It is principle 10 of the Rio Declaration of 1992 to which Kenya, and the global community of nations subscribe. It is in national statute, EMCA; in several global and regional treaties that Kenya subscribes to, and plainly it should be put to practice in all development activities. In this case, it was explained, neighbours were contacted, billboards were displayed, and print media was used, albeit not the popular one and in small print. This may not have been adequate; perhaps this, in the perception of the Appellants, was inadequate. Nevertheless it was there. It was also stated that some ten or so neighbours were contacted, who, statedly, did not raise objections.

45. The Appellants prayer for an order for restoration of this area to its original state must be responded to. It is given that in any development of the magnitude of this project, significant tampering with the site and environment would occur, and has occurred. Trees and vegetation have already been substantially uprooted, although the intention to plant some later is on record. Demolition can be ordered, and would be ordered if there is unequivocal and blatant disregard or breach of the law which has not, in this case, been established.

46. Upon site visit it was clear a lot of work had been done. It has now been stopped. It is to be observed that even in any case, the activity would stop as a matter of law upon an appeal being filed in the Tribunal. Section 129(4) of EMCA, provides unequivocally that:

“Upon any appeal to the Tribunal under this section, the status quo of any matter or activity, which is the subject of the appeal, shall be maintained until the appeal is determined.”

47. According to the 2nd Respondent, millions of shillings had been spent, and buyers are anxiously waiting to move in once the project is complete. These matters are not to be ignored. The Council makes by-laws and institutes measures to ensure that such laws are followed. The Council has responsibility to approve building plans submitted for that purpose; exercise supervisory role and take measures to ensure they are followed, or legal consequences flow from illegitimate actions. They review applications for change of user too. The argument was made before the Tribunal that the Council has been disregarding its own by-laws. There is no law that exempts the Council from implementing its own laws, and it cannot pick and choose which ones it applies, where and how, and which ones it does not.

48. The Council approved the 20 houses in November 2006, well after all the considerations of policy review in different zones, including Zone 5, the home of the project under consideration. This approval no doubt lifts the nullification that it had inflicted on the project in May 2006. In November 2006, it had also agreed to change of user. The EIA was approved on the basis of the previous title deed, but its relationship to the subsequent subdivision and references leave no doubt as to the property in question currently, or as it will be following amalgamation of the four resultant plots.

49. The Appellants’ point that the Building Code had not been complied with regarding new houses and distance to boundary wall (6m) was challenged, and in evidence the distance required was minimum 2. 4 metres, which had been amply provided for. This contention therefore fails.

50. Arising from the above considerations and findings, the Tribunal unanimously, makes the following orders:-

i. NEMA was appropriately enjoined in these proceedings as a party;

ii. The approval granted by NEMA in its letter of 17th May 2005 remains valid.

iii. Proponent takes measures in carrying out the contruction to ensure that there is no encroachment on the riparian reserve.

iv. In place of a swimming pool and a gym envisaged on the side of the river, an area be set aside for green space and play ground and such number of indigenous trees as the area may hold be planted;

v. The cut ground and retention walls be reinforced using designs by competent engineers to ensure that no erosion or landslide occurs in the future; and that this be duly supervised by the City Council of Nairobi and NEMA to their satisfaction;

vi. The mitigation measures in the Project Report be strictly adhered to;

vii. Further delay should be avoided and activities on site can be resumed, along with the precautionary measures; and

viii. The EIA licence be and is hereby issued.

51. The 1st respondent did not seek for any costs from the appellants and this is commendable. On the other hand, the 2nd Respondent did request the Tribunal to order the costs incurred by them be paid. This has been a complex matter, with many issues of public interest canvassed in the Tribunal. Accordingly, the Tribunal declines to award costs and orders the Appellants and the 2nd Respondent each to bear their costs.

52. The Tribunal draws the attention of the parties to the provisions of section 130 of EMCA.

Delivered at Nairobi this 11th day of May, 2007.

Donald Kaniaru …………………………………….. Chairman.

Jane Dwasi …………………………......………….. Member.

Albert Mumma ……………………………....……….. Member.

Stanley Waudo ………………………………...……... Member.

Joseph Njihia ………………………………….....….. Member.