Erdermann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others (Civil Appeal 185 of 2017) [2023] KECA 282 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that major projects without genuine public participation are invalid, but ruled fast government approvals and restricted access were acceptable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court's conclusion on the approvals and the alleged infringement of property and access rights was in line with the evidence on record
- 2.What is the standard applicable to public participation for the approvals and the Environmental Impact Assessment
- 3.What principles govern the award of costs in public interest litigation matters
Key legal issues
#Whether the speed of the approvals and the alleged blockage of access amounted to a violation of the 1st respondent's constitutional rights
The trial court erred in basing its finding of non-compliance on the short time taken to grant approvals, and the complaint was one of inconvenience rather than denial of access.
The approving bodies are specialized authorities with technical expertise; no prescribed period existed for studying designs, so the speed of approval did not undermine validity. Further, the 1st respondent's own affidavits showed the complaint was about restricted access and aesthetics, not complete blockage, and the appellant's design proposed U-turns and alternative access. The trial court's finding of constitutional infringement was therefore blown out of proportion and erroneous.
The standard and sufficiency of public participation for the EIA and the approvals
There was no meaningful public participation; interviewing only five peripherally affected persons, omitting directly affected property owners, and failing to advertise the project fell below the Supreme Court's guidelines.
Article 10 entrenches public participation as a national value binding on all state organs and persons discharging public duties, and Section 3(5) of EMCA places a duty on NEMA to ensure sufficient and credible participation before licensing. For a project of this magnitude, the bare minimum required by the Supreme Court's guidelines in British American Tobacco was advertisement in the dailies and public education. What occurred was a cosmetic public relations exercise, invalidating the approvals to the extent they depended on it.
Principles for awarding costs in public interest litigation
Matters in the domain of public interest litigation tend to be exempted from an award of costs; each party should bear its own costs.
The Supreme Court in Jasbir Singh Rai held that courts should identify good reasons for departing from the general rule and that public interest litigation matters tend to be exempted from costs awards. The trial court condemned the appellant to costs despite itself noting the petition was brought in the public interest. That holding binds this Court, so the costs order is varied so that each party bears its own costs both here and below.
Legal principles established
#- Lack of public participation, where it is required, invalidates the action taken and renders it null and void.
- Public bodies cannot avoid their constitutional duty to ensure meaningful, good-faith public participation; a cosmetic public relations exercise does not satisfy Article 10.
- For a major project affecting several property owners and the public, advertisement in the dailies or other accessible public medium calling for comments, views and/or objections, together with public education, is the bare minimum required by the Supreme Court's public participation guidelines.
- In public interest litigation, the Supreme Court's holding in Jasbir Singh Rai binds appellate courts to order each party to bear their own costs rather than condemn a party who acted under lawful authority to pay costs.
- The time taken by specialized approving authorities to consider a technical application is irrelevant and does not affect the authenticity or accuracy of the approval.
Court orders
#- 1.The appeal is dismissed
- 2.Each party bears its own costs in this Court and in the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court
- Machakos ELC Petition No. 4 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31 of the Court of Appeal Rules
Relief refused
#The appellant's prayer that the appeal be allowed and the petition be dismissed
The appellant succeeded on the issues of the approvals and access but failed on the question of public participation; there was no meaningful public participation for the EIA
Costs
Each party to bear its own costs in this Court and in the trial court. It is so ordered.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, as the appellant has succeeded in two of the issues but failed on the question of public participation, this appeal is dismissed with the order that each party bears its own costs in this Court and in the trial court. It is so ordered.
Lack of public participation is fatal and any action done without public participation where it is required invalidates the said actions and is null and void
What we see in this appeal is not genuine and honest efiort to satisfy a constitutional principle, but a cosmetic public relations exercise, a bare stratagem for no other purpose but to give the impression of compliance with constitutional dictates.
Article 10 of the Constitution has entrenched participation of the people as a national value and principle of governance binding on all state organs, State oficers, public oficers and all persons whenever they discharge their public duties.
In light of the Supreme Court holding in the Rai Case, which holding binds this court, this court has no option but to find and hold that this being a public interest litigation, each party should bear their own costs.
We are therefore satisfied that the trial court erred in determining the level of compliance based on the time taken to give approvals.
Issues in the judgment
#Apparent internal tension: the court holds the approvals were vitiated by absence of meaningful public participation and that access-rights findings were erroneous, yet dismisses the appeal without stating what orders (if any) substitute or vary the substantive judgment below other than on costs.
The coram is signed 'ASIKE - MAKHANDIA' while the certification block appears to indicate Nairobi delivery; the appellant's full name is never expressly given as a party in the body of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erdermann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others (Civil Appeal 185 of 2017) [2023] KECA 282 (KLR)", Case Analysis (2023). Court of Appeal Civil Appeal (Machakos) - appeal against Machakos ELC Petition No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/282/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.