ASSOCIATED MOTORS V.DIRECTOR GENERAL NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA)and PAPER BAGS LIMITED.

Briefly, the grounds of Appeal set out in the notice of Appeal were that the Appellant had on the 24 July 2008,requeted the Provincial Director of Environment to investigate and take appropriate action against the 2nd respondent which was carrying out a development without prior consultation with their neighbours hence depriving the said neighbors of their right to make representation and comments as required by the Environmental management and Coordination Act(EMCA);That the 2nd respondent had not put into place sufficient mitigation measures and thereby exposing the Appellant to negative environmental effects; That the project was being carried out with substantial change without notification and not in accordance with the requirements contained in the approval by the City Council of Nairobi. The appellant prayed for a stop order and that the 2nd respondent complies with the mandatory conditions; That the 2nd respondent submits a fresh Environmental Impact Assessment. In response the 2nd respondent stated that the appellant was duly consulted and gave its approval to the project; That the appellant has not documented the alleged negative environmental effects to which the project has subjected it to or any alleged deviations/modifications from the requirements set out in the letter of approval to the project; That it duly complied with the provisions of the EMCA;That the only admission that the 2nd respondent makes is its notification of by the appellant of a minor damage to the electric fence along the common perimeter wall which was purely accidental and which it undertook to repair; Also the 2nd respondent affirmed its compliance with the conditions prescribed by NEMA and the city council of Nairobi in the licenses and approvals issued to them and that sufficient mitigation measures have been put in place. The 2nd respondent proceeded to annex copies of the Environmental Impact Assessment report. The tribunal considered the Appeal together with the supporting documents filed by the appellant and the respondent. On the question of approval from the city council and the compliance or non-compliance with the said conditions, the tribunal notes that they had obtained the necessary approval from the City Council of Nairobi; Also the tribunal found that in as far asEMCA required the 2nd respondent had complied with the conditions of the EMCA,which was done in consultation with neighbors .NEMA had given them a conditional approval with several mitigating factors to the approval, hence the project was duly licensed by NEMA.On the issue of a fresh Environmental Impact Assesment study the tribunal stated that it had the power to order for a fresh study only when there is a substantial change or modification in the project or if the manner in which it is being operated poses an environmental threat which could not be foreseen at the time of the study. They therefore declined to uphold the order.