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ELCDismissedPetition dated 25th January 2016 (number not stated in judgment)· [2020] KEELC 2392 (KLR)

Venerable Professor Ndungu Ikenye (Suing for and on behalf of aggrieved residents of Maki and Jogoo Estates within Thika) v Kenya Towers Limited & another [2020] KEELC 2392 (KLR)

Environment and Land Court of Kenya
28 May 2020
LGL. Gacheru
5,982 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed Thika residents' challenge to a mobile phone mast, ruling that a project report, not a full environmental study, was legally sufficient.

What this practically means

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Executive summary

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The Petitioners, residents of Maki and Jogoo Estates in Thika, petitioned for declarations that the Respondents failed to accord them public participation in the construction of a base transceiver station on L.R No. 15046/68, Maki Estate, Thika, contrary to sections 58 and 59 of EMCA, regulations 17, 20 and 21 of the Environment (Impact Assessment and Audit) Regulations 2003 and Article 10(2)(a) of the Constitution. They also sought certiorari to quash NEMA approvals, an order of prohibition against further construction, and costs. Only the 1st Respondent contested the Petition, contending that it lodged a project report (not an EIA study report) which NEMA licensed on 8th October 2015, that telecommunication infrastructure does not require a full EIA study under Legal Notice No. 150 of 2016, and that approvals were properly obtained from Kiambu County. The court framed four issues. It held the Petition was not defective, applying Anarita Karimi Njeru. It then held that the report presented was a project report under section 58(1) EMCA, not an EIA study report under section 58(2), and that the publication and public participation requirements of section 59 and Regulation 17 apply only to EIA studies. Views of affected persons had in any event been collected through questionnaires, and the suit property is in Kiambu County where approvals were properly sought. The petitioners failed to prove their case on a balance of probabilities, and the Petition was dismissed entirely with costs to the 1st Respondent.

Key legal issues

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01

Whether the Petition was defective for lack of particularity

Holding

The Petition was not defective; it specified the rights alleged to be violated (Articles 10, 40, 42), the manner and by whom

Reasoning

Applying Anarita Karimi Njeru, the court found the petition identified the constitutional provisions infringed and the alleged mode of infringement. Whether the rights were actually violated is a matter for the court's determination on the merits, not a ground of defectiveness.

p. 5
02

Nature of the report submitted to NEMA

Holding

What was prepared and presented was a project report under section 58(1), not an EIA study report under section 58(2)

Reasoning

NEMA's acknowledgement letter of 27th August 2015 referenced a project report; there was no evidence NEMA required an EIA study. Only where the Authority finds significant impact under Regulation 10(3) is a study required. Telecommunication infrastructure was also excluded from mandatory study under Legal Notice No. 150 of 2016.

p. 6
03

Whether mandatory procedures including public participation were followed

Holding

The procedures applicable to a project report were followed; publication under section 59 and consultation under Regulation 17 apply only to EIA studies, which were not required here. Views of affected persons were in any event collected via questionnaires.

Reasoning

The court held that section 59 publication and Regulation 17 consultation are triggered only where an EIA study under section 58(2) is undertaken. The project report contained questionnaires evidencing stakeholder views, and NEMA issued licence No. NEMA/EIA/PSL/2393 on 8th October 2015 subject to conditions.

p. 7
04

Whether approvals were sought from the correct county government

Holding

The suit property is in Thika Town, Kiambu County; approvals were properly obtained from the County Government of Kiambu

Reasoning

Taking judicial notice that Thika Town is in Kiambu County, and absent evidence to the contrary, the court held the extension of user was properly sought from Kiambu County. The petitioners' county-boundary objection failed for want of evidence.

p. 7
05

Entitlement to the orders sought

Holding

Petitioners failed to prove their case on a balance of probabilities; the declarations, certiorari and prohibition sought were refused

Reasoning

Having found the report was a project report requiring no section 59/Regulation 17 participation, and that proper approvals were obtained from Kiambu County, the petitioners could not establish that the respondents breached the Constitution or EMCA. Costs followed the event under section 27 of the Civil Procedure Act.

p. 7

Legal principles established

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  • A proponent whose project report is accepted by NEMA under section 58(1) EMCA need not undertake an EIA study or its publication/participation requirements unless the Authority finds the project will have a significant environmental impact
  • Publication of an EIA study report under section 59 EMCA and Regulation 17 consultation are triggered only where an EIA study under section 58(2) is undertaken
  • A petitioner seeking constitutional redress must specify with precision the rights infringed, the manner and by whom

Court orders

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  1. 1.The Petition is dismissed entirely
  2. 2.Costs of the suit awarded to the 1st Respondent

Authorities

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Legislation

  • Environment Management and Co-ordination Actsections 3, 27 (Civil Procedure Act), 58, 58(1), 58(2), 58(7), 59
  • Environment (Impact Assessment and Audit) Regulations, 2003regulations 4, 7, 10, 16, 17, 19, 20, 21, 22
  • Legal Notice No. 150 of 2016Second Schedule to EMCA
  • Constitution of Kenya, 2010Articles 10(2), 22, 40, 42
  • Civil Procedure Actsection 27
  • Physical Planning Act, Cap 286extension of user provisions
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Sam Odera & 3 Others v NEMA & Another
    (2006) eKLR
  • Amos Kiumo & 19 others v The Cabinet Secretary, Ministry of Interior & Coordination of National Government
    (2014) eKLR
  • Bethwell Allan Omondi Okal v Telkom (K) Ltd (founder) 29 Others
    Court of Appeal Case No. 191 of 2014; (2017) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    Civil Appeal No. 290 of 2012; (2013) eKLR
  • Nairobi Metropolitan PSV Saccos Union Ltd & 25 others v County of Nairobi Government & 3 others
    Civil Case No. 42 of 2014; (2014) eKLR
  • Daniel Chacha Muriri v Attorney General
    [2012] eKLR
  • Anarita Karimi Njeru v Republic (No. 1)
    1979 KLR 154
Jurisdiction invoked
Articles 22, 40, 42 and 10(2) of the Constitution of Kenya 2010; Environment 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, "Venerable Professor Ndungu Ikenye (Suing for and on behalf of aggrieved residents of Maki and Jogoo Estates within Thika) v Kenya Towers Limited & another [2020] KEELC 2392 (KLR)", Case Analysis (2020). Petition dated 25th January 2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2392/eng@2020-05-28

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