Environmental Impact Assessments, Licences, Remedies, Property, Inspections, Audits, Civil, Evidence, Jurisdiction, Public Participation
In the present case Sound Equipment Limited (the appellant) was appealing against a decision of the High Court dismissing its application for judicial review orders challenging an order by NEMA requiring the appellant to cease the construction of residential houses because concerns had arisen that the project would lead to the pollution of Mathare River. After receiving its Environmental Impact Assessment Licence, the appellant started the construction of the proposed houses. However, during the course of the project, NEMA issued an order stopping the work ostensibly because the construction was causing the pollution of the Mathare River which ran through the appellant’s land. NEMA cited the fact that the project posed environmental threats which could not be reasonably foreseen at the time of the Environmental Impact Assessemnt Study as well as its review. As a result, it directed the appellant to halt the construction immediately, to carry out a fresh EIA with in-depth evaluation of the potential impacts associated with the project and to provide a forum for the public participation of interested stakeholders. The appellant filed judicial review proceedings in the High Court seeking an order of certiorari to quash NEMA’s decision and the conditions attached to it as well as an order of prohibition to prohibit NEMA from enforcing the order or from cancelling the appellant’s Environmental Impact Assessment License. Under section 129 of the Environmental Management & Co-ordination Act (EMCA), it is provided that any person who is aggrieved by a decision of NEMA may appeal against it at the National Environmental Tribunal within sixty days. Though the High Court agreed that the existence of an alternative remedy cannot by itself prevent a court from issuing a judicial review order, the Court was concerned, and sought to know from the appellant, why he had preferred to challenge NEMA’s decision directly in the High Court rather than by first lodging an appeal with the Tribunal. Ultimately, the Court was not satisfied about the appellant’s preference for judicial review. As a matter of fact, it held that the failure to disclose the existence of an alternative remedy and the failure to demonstrate at an early stage in the proceedings why judicial review was the preferred procedure disentitled the appellant to the orders sought in the application. While concurring with the High Court’s decision, the Court of Appeal held that where there was an alternative remedy and especially where an appeal procedure has been provided in an Act of Parliament, it is only in exceptional circumstances that an order for judicial review would be granted. In determining whether an exception should be made and judicial review orders granted, the Court observed that it was necessary for a court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. As far as the merits of the case was concerned, the Court of Appeal noted that the appellant must have been aware that there were serious complaints against its project, one of which was that the Water Resources Management Authority had raised the probability of Mathare River being polluted by soil excavated during the construction and the possibility of effluence from the proposed septic tanks seeping into the river. The Court pointed out that matters concerning the environment do not merely concern NEMA and the party against which a complaint is raised but concerned all Kenyans and hence the essence of public participation. The Court further observed that by issuing the order directing the appellant to stop the construction and to prepare a second Environmental Impact Assessment Report, NEMA, even if it had previously failed to ensure adequate participation of the public in the previous report, was availing an opportunity to the appellant to ensure the participation of bodies such as the Water Resources Management Authority, the Kabarage Estate Company Ltd., the Greenbelt Movement and any other interested persons and bodies. In its conclusion, the Court cited with approval the decision by Nyamu J (as he the was) in Odera & Others v. NEMA, HMSC No. 400 of 2006, that though construction projects such as the one in this case involved the expenditure of large sums of money on the part of the proponent,injury or health concerns might not be adequately measured in terms of shillings, pences and pounds and as such, the consideration of financial loss on the part of the appellant could not override environmental concerns. The appellant’s appeal was therefore dismissed with costs.