National Environment Management Authority & 3 others v Maraba Lwatingu Residents Association & 505 others [2020] KEELC 1602 (KLR)

Section 129(1) of EMCA empowers the Tribunal to hear appeals by persons aggrieved by NEMA decisions such as the issuance of a licence. Section 130 of EMCA channels further appeals to the High Court, which must now be read as the Environment and Land Court by virtue of Article 162(2)(b) of the Constitution. Section 13(1) and 13(3) of the Environment and Land Court Act confer original and appellate jurisdiction over environmental disputes and redress for threatened environmental rights.

Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations 2003 requires publicity by posters, newspaper notices for two successive weeks and radio announcements at least once a week for two consecutive weeks in official and local languages, plus at least three public meetings. The court found the newspaper notices were proved but the radio announcements were not. Citing Ken Kasinga, failure to follow environmental protection procedures permits the inference that the right to a clean and healthy environment is under threat, and the failure also breached Article 69(1)(d).

The Tribunal had considered the Water Quality Regulations 2006, Wetlands Regulations 2009 and Air Quality Regulations 2014 and found the mitigation measures inadequate. Dr. Oonge Zablon, who prepared the EIA report, never testified to clarify technical matters. Following West Kenya Sugar Co. Ltd v Kenya Sugar Board, technical questions of this kind are best evaluated by specialist bodies, so the court declined to disturb the Tribunal's technical findings. The project site is a wetland near the stream used for domestic, cultural and religious purposes.

Section 129(3) of EMCA empowers the Tribunal to make such orders, including costs, as it deems just. The appellants argued the orders were harsh and punitive for a donor-funded public project, but the court held the 2nd appellant undertook the project and the Tribunal's discretion was properly exercised. The polluter pays principle, as set out in Michael Kibui and Principle 16 of the Rio Declaration, places pollution prevention and restoration costs on the polluter rather than the public.