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ELCPartially AllowedNot stated in the judgment (petition filed 29.4.2019 with Notice of Motion dated 23.4.2019)· [2019] KEELC 2187 (KLR)

Rwanyange Resident Self Help Group (suing thro’ Charles Kariuki, Nick Mutiga, Its Chairman and Secretary) v Tana Water Services Board & 2 others [2019] KEELC 2187 (KLR)

Environment and Land Court
31 July 2019
4,498 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted a Meru sewerage project because the developers could not produce a NEMA environmental licence, giving them three weeks to do so.

What this practically means

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Executive summary

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The petitioners, a registered self-help group of Rwanyange residents, moved the court by Notice of Motion dated 23 April 2019 seeking temporary and permanent injunctions to stop the construction of a proposed sewerage project in Ndiine Sub-location, Meru County, on land harboring a swamp and River Kinyaritha, a water catchment feeding River Tana. They alleged the project was proceeding without an Environmental Impact Assessment, without NEMA involvement, and without genuine public participation, and urged the precautionary principle. The 1st, 3rd and 4th respondents countered that the EIA had been done, that public participation occurred, that the project was publicly beneficial and funded by an African Development Bank loan, and that an injunction would be futile since construction had begun ('the horse has bolted'). The 2nd respondent, County Government of Meru, attacked the petition for failing to cite with precision the constitutional provisions violated and defended the project as compliant with the right to clean and safe water. The court noted the motion cited no enabling law but considered it under Order 51 rule 10 and Article 159(2)(d). It held that although a detailed Environmental and Social Impact Assessment report existed, there was no evidence it was actually submitted to, or approved by, NEMA, nor that an EIA licence was issued under sections 57A, 58 and 63 of EMCA. Following Luo Council of Elders and Taib Investment, the court reiterated that challenges to EIA reports and licences lie first before the National Environment Tribunal. Granting only prayer 2, the court issued a three-week temporary injunction for the respondents to avail the licence, failing which the orders stand confirmed until the suit is heard and determined.

Key legal issues

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01

Whether the respondents complied with EMCA by submitting the EIA report to NEMA and obtaining an EIA licence

Holding

The mere heading 'SUBMITTED TO NEMA' on the report does not prove submission, approval or issuance of a licence; the respondents, having admitted the project was underway, failed to demonstrate compliance

Reasoning

The court examined sections 57A, 58 and 63 of EMCA which require a project proponent to submit a project report and a full EIA study report to NEMA and obtain a licence before commencing. The Environmental & Social Impact Assessment report availed bore only a heading indicating submission to NEMA. There was no evidence of actual submission, approval or licence issuance. The court relied on Taib Investment Ltd to hold that only after issuance or refusal of a licence can a party appeal to the tribunal, so compliance with NEMA processes had first to be ascertained.

p. 6
02

The proper forum for challenging EIA reports and EIA licences

Holding

Challenges to EIA Study Reports and/or EIA Licences should be made to the National Environment Tribunal in the first instance, with appeal thereafter to the ELC

Reasoning

Relying on Luo Council of Elders v County Government of Bomet and the Court of Appeal decision in Republic v NEMA ex parte Sound Equipment Ltd, the court held that the tribunal established under section 125 of EMCA should be accorded the first opportunity to consider challenges to EIA reports and licences. However, because the applicants needed an entry point into the EMCA dispute resolution mechanism, the court had to first ascertain that NEMA was involved in approving the project before referring the dispute to that mechanism.

p. 6
03

Whether the applicants were entitled to an injunction restraining the sewerage project

Holding

A temporary injunction was granted for three weeks to compel the respondents to avail the EIA licence; if none is availed, the orders stand confirmed until the suit is determined

Reasoning

The court acknowledged that a sewerage treatment plant is crucial but that sewage contains pollutants posing threats to health, making expert input via EIA essential. Since the respondents admitted the project was underway without demonstrated NEMA compliance, the court invoked a cautionary approach: a short temporary injunction to give the respondents an opportunity to avail the licence, failing which the injunction would stand confirmed pending the hearing of the suit.

p. 7
04

Public participation in the project

Holding

The nature and extent of public participation ought to be captured in the EIA study report, which must be scrutinized by NEMA before a licence is issued

Reasoning

The applicants attacked the public participation exercise, alleging no notice, questionable participants, and that the area MCA was falsely recorded as present when he was in Japan. The respondents relied on a detailed public consultation document and newspaper adverts. The court held that the public consultation document must be scrutinized by NEMA as part of the EIA process before the relevant licence is issued, effectively deferring the question to the EMCA compliance framework.

p. 7

Legal principles established

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  • Challenges to Environmental Impact Assessment Study Reports and/or EIA Licences lie in the first instance before the National Environment Tribunal, not the regular courts
  • NEMA can only issue an EIA licence after being satisfied as to the adequacy of the EIA study report; a proponent who cannot exhibit the licence has not complied with EMCA
  • A mere heading on a report stating it was submitted to NEMA is not proof of actual submission, approval or issuance of a licence; a proponent must demonstrate compliance before commencing a project

Court orders

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  1. 1.Temporary injunction granted in terms of prayer 2 of the Notice of Motion for a period of three weeks for the respondents to avail the EIA licence
  2. 2.In the event there is no licence, the injunction orders to stand as confirmed until the suit is heard and determined
  3. 3.In the event the respondents avail the licence, the court to give further directions on the matter

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 22, 23, 24, 42, 69, 70, 43(1)(d), 10, 159(2)(d)
  • Environmental Management and Co-ordination Act (EMCA)Sections 9, 57A, 58, 63, 125
  • Civil Procedure RulesOrder 51 rule 10
  • Water (Plan of Transfer of Water Services) Rules2005 (Gazette notice)

Cases cited (3)

  • Luo Council of Elders and 7 others vs County Government of Bomet and 24 others
    ELC Nakuru Petition 9 of 2017 (2018) eKLR
  • Republic vs NEMA exparte Sound Equipment Ltd
    CACA No. 84 of 2010 (2011) eKLR
  • Taib Investment Limited vs. Fahim Salim Said & 5 Others
    (2016) eKLR
Jurisdiction invoked
Constitution of Kenya 2010, Articles 19, 20, 22, 23, 24, 42, 69 and 70 (heading of petition/motion); application considered under Order 51 rule 10 of the Civil Procedure Rules and Article 159(2)(d)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rwanyange Resident Self Help Group (suing thro’ Charles Kariuki, Nick Mutiga, Its Chairman and Secretary) v Tana Water Services Board & 2 others [2019] KEELC 2187 (KLR)", Case Analysis (2019). Not stated in the judgment (petition filed 29.4.2019 with Notice of Motion dated 23.4.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2187/eng@2019-07-31

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