Mwongera & 2 others ((Suing as Chairman, Treasurer & Secretary of Karen Langata District Association)) v National Environment Management Authority (NEMA) & another; Taaleri Private Equity Funds (Interested Party) (Environment and Land Appeal 20 of 2019) [2024] KEELC 1655 (KLR)

The EIA project report and the Letter of Approval of the Terms of Reference were prepared and issued in the names of Keith Howard Osmond and Valerie Mary Limb as project proponents. Regulation 2 of the EIA and Audit Regulations defines 'proponent' as the person proposing or executing a project, not necessarily the landowner. The 1st Respondent should therefore have issued the License to the named proponents; issuing it to Cytonn was contrary to law, and any subsequent transfer was a transfer of a void license.

Section 65 of EMCA and Regulation 26 of the EIA Regulations require joint notification by transferor and transferee in the prescribed forms for a transfer of an EIA license to take effect. The court found that only the 2nd Respondent, as transferee, wrote the letters requesting transfer, and neither Form 11 nor Form 12 was produced. NEMA's admission that issuing licenses to entities that never applied is its ordinary practice could not legalise an act done contrary to the law.

The court found material discrepancies between the project described in the EIA Study Report, the License, and the county development permissions (number of conference centres, presence of a shopping centre, number of cottages). New aspects added after the study meant affected persons were never given a chance to comment on the final project. The argument that the variations were typographical errors failed because the 1st Respondent never sought to rectify or amend the License. The court also noted the death of one named proponent before the study was signed, raising the possibility of impersonation.

Regulation 17(2) requires at least three public meetings to explain the project and its effects. The December 2015 meeting predates the EIA Study and cannot count; the March 2016 meeting had only two resident attendees; and the April 2016 meeting did not inform residents of negative environmental effects. The Tribunal's reliance on Article 159(2)(d) to find substantial compliance was rejected, as procedural requirements on public participation are mandatory and not mere technicalities per Salat v IEBC.

No approved traffic management plan was in place despite License Condition 2.5 requiring one before commencement of works. The 2nd Respondent admitted the access road was 5 metres wide, not 18 metres, and gave no evidence of committing to expand it. On water, there was an unexplained deficit of 140m3 between the 20m3/day authorised by WARMA and the ~160m3/day needed, and the required EIA Impact Assessment for the borehole was never conducted.

The License required adherence to zoning specifications issued for the area. The KLPDP provides for only one residential unit per 0.4 hectares. The 2nd Respondent's own witness conceded the 50 villas would be built on 10 acres (0.2 acres per unit). The argument that the NIUPLAN supersedes the KLPDP failed because the NIUPLAN is only a broad framework requiring local plans, and no new local plan has been approved for the Karengata area, so the existing KLPDP must be strictly adhered to.