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ELCDismissedELC Case No. 50 of 2016· [2017] KEELC 1024 (KLR)

Isaac Gitoho & 2 others (suing as the Chairman, Vice- Chairman and Committee member respectively of the Runda Association) v Director General, Nema & another [2017] KEELC 1024 (KLR)

Environment & Land Court of Kenya
2 October 2017
4,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment & Land Court dismissed the Runda Association's challenge, confirming the developer's EIA licence and that public participation requirements were met.

What this practically means

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Executive summary

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The appellants, officials of the Runda Association, appealed to the Environment and Land Court at Milimani against a ruling of the National Environment Tribunal delivered on 9th May 2016 in NET/143 of 2015, which had dismissed their challenge to an environmental impact assessment licence issued by NEMA to The Grove Limited on 25th July 2014 for a hotel, retail centre and office block development on LR No. 778/1451 in Runda. The appeal raised 14 grounds, principally that the EIA study report distorted facts, that public participation was not meaningful, that the site was a wetland and source of a stream supplying Githogoro residents, and that the Tribunal ignored expert recommendations and the Water Act and WARMA Regulations. Justice E. O. Obaga found that the Association was aware of the project, met the company, raised concerns that were addressed, and that newspaper and Gazette notices were published. Non-issue of radio announcements was not fatal, applying Project Blue Sky and Regina v Soneji on substantial compliance and legislative purpose. On the wetland question, the evidence of Dr Abira, a WARMA wetlands expert, that there was no wetland or stream was unchallenged; the Association's hydrologist never completed his evidence and its expert Ms Kahumbura contradicted herself and refused a second site visit. All grounds failed. The appeal was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Public participation in the EIA process

Holding

There was adequate public participation: the Association was aware, met the company, raised concerns that were addressed, and the public was notified by newspaper and Gazette

Reasoning

The court found evidence of meetings between the company and Association officials and sub-committees, newspaper and Gazette notices, and questionnaires. The company even arranged a members' meeting that failed to materialise. The proponent's duty is to inform affected persons and give them an opportunity to comment, not to solicit views. Githogoro residents were informed and did not raise issues.

p. 3
02

Effect of non-compliance with regulatory requirements (radio announcements, three meetings)

Holding

Non-compliance with the radio announcement requirement was not fatal because the affected persons were aware of the project through other means

Reasoning

Applying Project Blue Sky and Regina v Soneji, the court held the test is whether the legislation intended that an act done in breach should be invalid, focusing on consequences of non-compliance rather than the mandatory/directory distinction. Radio announcements serve to inform; since affected persons were informed otherwise, insisting on them would be absurd.

p. 3
03

Whether the site was a wetland or source of a stream

Holding

The site was not a wetland and no stream emanated from it; the Tribunal's finding was correct

Reasoning

Dr Abira, a wetlands expert, found no wetland or stream; the Association's hydrologist disappeared without completing his evidence, and Ms Kahumbura contradicted herself and refused a second site visit. The Tribunal's own site visit found no stream. Residents testified the water in trenches was run-off and unfit for consumption. Expert evidence unchallenged by other expert evidence stands.

p. 6

Legal principles established

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  • Public participation requires that affected persons be informed of a project and given an opportunity to comment; whether they choose to participate is another matter
  • Where residents have formed an association and elected officials, consultation of the officials suffices as public participation
  • Validity of an act done in breach of a statutory provision depends on whether the legislation intended invalidity, not on the mandatory/directory distinction
  • An expert witness may be called by either party and may only be challenged by another expert; absence of a written report does not vitiate expert evidence

Court orders

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  1. 1.The appellants' appeal is dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Environmental Management and Co-ordination Actsection 58
  • Environmental (Impact Assessment and Audit) Regulations
  • Water Act
  • WARMA Rules 2007
  • Societies Act

Cases cited (4)

  • Project Blue Sky Inc. Vs Australian Broadcasting Authority
    (1988) 194 CLR 355
  • Regina Vs Soneji and another
    (2005) EK HL 49
  • Dr J S Muiru & 2 Others Vs Tigoni Treasurers Limited & 2 others
    (2014) eKLR
  • Patrick Musimba Vs The National Land Commission & 4 Others
    (2016) eKLR
On appeal from
National Environment Tribunal
NET/143 of 2015
Jurisdiction invoked
Statutory appeal from the National Environment Tribunal under the Environmental Management and Co-ordination Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isaac Gitoho & 2 others (suing as the Chairman, Vice- Chairman and Committee member respectively of the Runda Association) v Director General, Nema & another [2017] KEELC 1024 (KLR)", Case Analysis (2017). ELC Case No. 50 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1024/eng@2017-10-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.