GAETANO GRASSO,ANTHONY FUCHAKA, WILLIAM PARKINSON,ATHMAN SEIF,V. THE DIRECTOR GENERAL NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY(NEMA),BLAZER WATAMU LIMITED.

The appellants filed the appeal on 10th June 2008 challenging the 1st respondent’s lifting by letter dated 15th August 2007, of a stop order it issued on the 10th July 2007 against the 2nd respondents construction of holiday apartments in Malindi on the grounds that; Lifting of the stop order was wrong because the 1st respondent issued it in response to the second respondents’ failure to comply with development approval conditions which failure was continuing; The 1st respondent’s conditional approval of the 2nd respondent’s development was improper, unprocedural and illegal. For the reasons advanced, the appellants asked the tribunal to: Find that lifting of the stop order against the 2nd respondent’s development was improper and illegal, to direct and declare that the 2nd respondent and not the District Environment Committee have the duty to ensure the 2nd respondent’s full compliance with approval conditions. In response to the appeal, the 1st respondent stated that: There was sufficient consultation and participation during the environmental impact assessment process leading to the approval of the 2nd respondent’s development; During the EIA(Environment Impact Assessment) process, and in issuing an EIA license to the 2nd respondent, the 1st respondent followed all procedures laid out in the EMCA of 1999(Environmental management and Coordination Act 1999). The issuance of the EIA license and the and subsequent lifting of the order was conditional upon the 2nd respondent’s adherence to approval conditions, taking into consideration the proposed mitigation measures which the 1st respondent deemed sufficient; The issuance and subsequent lifting of the stop order was proper and within the 1st respondent’s mandate; For the reasons afore stated, the 1st respondent asked the tribunal to dismiss the appeal. The 2nd respondent filed a reply to the appeal on 10th July 2008 admitting that it submitted an EIA report to the 1st respondent indicating its desire to undertake construction in Malindi; the 1st respondent did approve the development, subject to 13 specified conditions and subsequently issued an EIA license with 15 conditions which were to be adhered to. The 2nd respondent further stated that the 1st respondent’s conditional approval of the project was proper, subject to which the 1st respondent issued it with an EIA licence. The district environment Committee(DEC) did not make proposals to be adhered to by the 2nd respondent including obtaining views of Key stakeholders; it met and merely confirmed conditions set out in the EIA licence issued to the 2nd respondent; On the bases aforestated, the 2nd respondent asked the tribunal to lift its stop Order and dismiss the appeal and allow the project to proceed. For the reasons stated, the tribunal found that: The 2nd respondent’s EIA project report lacked pertinent information required by law and was inadequate; The 1st respondent did not have sufficient information to provide basis for its consideration on whether or not to approve the 2nd respondent’s development; The 1st respondent approved the development in question without sufficient information on waste management as required by EMCA, The 1ST respondent’s approval of the 2nd respondent’s development was improper,unprocedural,irregular and unlawful; The 1st respondent’s subsequent lifting of the stop order was premature ,unprocedural and unlawful; The 2nd respondent’s construction cannot proceed without detailed and approved waste management system; They recommended that there was need for further investigation of the site by independent experts to determine critical matters especially whether the headland has stable areas in which buildings could be constructed. For the foregoing reasons the tribunal hereby revokes the 1st respondents approval of the development in question and cancels the EIA license issued to the 2nd respondent by the 1st respondent on 23rd may 2007.The tribunal directs that a fresh and comprehensive EIA study be conducted on the site, including a specific EIA for waste management for NEMA to review and act on the resulting studies.