London Distillers (K) Limited v National Environment Management Authority & 2 others
The bottom line
#Kenya's Environment and Land Court confirmed that residential projects near licensed polluting industries must conduct an ambient air quality study before proceeding.
What this practically means
#Executive summary
#Key legal issues
#Automatic stay under section 129(4) EMCA
No automatic stay existed at the material time; the 2018 amendment repealed the provision, and in any event NET No 26 of 2020 was premature and did not attract automatic stay
The court held that the Statute Law (Miscellaneous Amendments) Act No 4 of 2018 repealed the automatic stay provision, and per section 22 of the Interpretation and General Provisions Act a repealed law ceases to be in force. Further, the earlier NET proceedings were premature as no NEMA decision under section 129 existed, and were aimed at stopping a consultative meeting rather than challenging a NEMA decision.
Adequacy of public participation
Public participation was adequate and effective; the appellant was invited but chose not to attend
The role of the proponent and NEMA is facilitative - to avail a reasonable opportunity to participate. Notices, invitations to the appellant, and print and audio advertisements were issued. Non-attendance by an invited project-affected person cannot be blamed on the respondents, who met the threshold for effective and adequate public participation.
Requirement of ambient air quality study in a mixed-use zone
The regulation 4 exemption for residential projects does not apply where a residential project is introduced into a mixed-use zone with existing licenced polluting industries
The Air Quality Regulations target polluters, not non-polluters, and do not envisage the impact of licenced pollution on non-polluters. The unique situation required the proponent, having changed user from industrial to residential, to ensure the site is fit for residential use and safe for human health, guided by the precautionary principle.
Jurisdiction of the Tribunal to order an ambient air quality study
The Tribunal acted within its jurisdiction under section 129(3) EMCA and article 10 of the Constitution by exercising NEMA's power to enhance sustainable development
NEMA had failed to apply the precautionary principle before issuing the licence. The Tribunal, in determining an appeal under section 129(3) EMCA, may exercise any power NEMA could have exercised and make orders to enhance sustainable development. Its order for the study was therefore intra vires and not based on the Air Quality Regulations.
Consideration of perennial conflicts in EIA reports
The perennial conflict between the parties, known to NEMA, ought to have informed NEMA's demands and requirements on mitigation
Regulation 18(q) of the EIA & A Regulations makes the listed parameters non-exhaustive, giving NEMA latitude to consider other matters. The long-standing conflict over coexistence within the project area was within NEMA's knowledge and should have shaped its requirements of the proponent regarding mitigation of the appellant's concerns.
Legal principles established
#- The 2018 amendment to section 129(4) EMCA repealed the automatic stay; a party must apply to the Tribunal for stay or status quo orders
- The Air Quality Regulations exemption for residential projects does not apply to residential projects introduced into mixed-use zones with existing licenced polluting industries
- The project proponent's obligation to ensure the project site is safe for human health cannot be transferred to a pre-existing licenced polluter
- NEMA must apply the precautionary principle in its licensing power where there are reasonable articulable grounds for suspicion of environmental harm
Court orders
#- 1.The 2nd respondent to conduct an ambient air quality study within the next 90 days in accordance with the applicable provisions of EMCA and the Regulations thereof and satisfy the 1st respondent that the maximum permissible emissions from the appellant are not a threat to the health of the residents of the proposed project
- 2.The 1st respondent to ensure compliance with order (a) above
- 3.In the event that the 1st and 2nd respondents do not comply with orders (a) and (b) above, the EIA Licence No NEMA/EIA/PSL/9665 dated November 3, 2020 shall stand cancelled
- 4.Each party shall bear its own costs
- On appeal from
- National Environment Tribunal
- NET Appeal No. 47 of 2020
- Jurisdiction invoked
- Section 130(1) and 130(4)(a)-(d) of the Environmental Management and Co-ordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "London Distillers (K) Limited v National Environment Management Authority & 2 others", Case Analysis (2023). Environment and Land Appeal E010 & E011 of 2022 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19076/eng@2023-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.