Wetlands, Licences, Jurisdiction
The 1st appellant, ‘We Care about Nairobi Do It’ and the 2nd Appellant, Kyuna and Shanzu Road Residents Association entered an Appeal against the 1st Respondent, The Director General (NEMA) and the 2nd Respondent, Ms. Houses and Plots limited, being the project proponent. Both Appellants alleged that the conditions by NEMA had hardly been observed. A wetland had been interfered with, trees cut, the riparian way leave ignored, green spaces ignored and they further expressed concern that the environment had been degraded by cutting trees without planting any as indicated by the EIA project report, the EIA project report being a requirement on the part of the developer in order to be issued with an EIA license. The 1st Respondent in response to the Appellants’ aversions stated that; It had not approved any EIA report in relation to the plots that were the subject matter of the appeal; there was no decision of the 1st Respondent for consideration by the tribunal; the Tribunal had no jurisdiction to decided on the matter; the appeal was an abuse of the Tribunal process under the Environmental Management and Coordination Act (EMCA) and that the Tribunal should therefore dismiss the case with costs to the Respondents. The 2nd respondent in response to the Appellants claims, stated that, the approval by NEMA remained valid; all conditions in the approval letter had been observed save for one that remained to be fulfilled; the proponent having met the conditions and paid the requisite fees thereafter was entitled to be issued with an EIA license and that the appeal be dismissed with costs to the 2nd Respondents. After considering the above, the tribunal held that, NEMA was appropriately enjoined in these proceedings; the approval granted by NEMA remains valid; the proponent takes appropriate measures in carrying out the construction to ensure there is no encroachment on the riparian reserve; there be set aside on the site an area for green space, play ground and such number of indigenous trees be planted; the cut ground and retention walls be reinforced by competent engineers to ensure that no erosion occurs in the future; and that this be duly supervised by Nairobi City Council and NEMA to their satisfaction; the mitigation measures in the Project Report be strictly adhered to; further delay should be avoided and activities on site can be resumed and the EIA licence be issued.