Watamu Hospital Limited v ATC Kenya Operations Limited & National Environment Management Authority (Interested Party)

adjacent to the said medical facility, without obtaining any approvals from the National Construction Authority and the National Environment Management Authority. The mast is located 20 m from the plaintiff’s medical facility. 2. According to the plaintiff, international regulations and guidelines require such a mast to be sited at a distance of 400 m away from residential and human settlements. The plaintiff, upon noticing the commencement of the construction, lodged a formal complaint against the defendant in the offices of NEMA, and the authority issued orders halting the construction. Soon after that stop order was issued by NEMA, the defendant proceeded with the construction despite the existence of a suspension of works order from the National Construction Authority, and upon completion of the mast, it became operational as a Base Transceiver Station. 3. The plaintiff maintains that the defendant’s development is out of character with its surroundings. It states that the defendant’s failure to accord the plaintiff's director and employees an opportunity to participate in a public participation forum denied them the right to self- determination, that is, the right to decide whether they want the project and to understand the environmental risks the said project would have on the environment and the health risks they would be exposed to, and how the said adverse effects would be minimized for the benefit of present and future generations. The plaintiff also avers that the defendants’ actions infringe upon the plaintiff’s directors' and employees’ rights MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 2 of 56

page 2 of 56

protected under Articles 69(1)(d) and 42 of the Constitution. It is urged that during the initial operation of the mast, its operations were powered by a generator that ran day and night, and the plaintiff's medical staff and patients experienced untold noise pollution from the mast premises. Despite the installation of a solar power system, the generator still remains on site and serves as a backup power system which goes on whenever there is a power failure, thus generating a lot of noise which is experienced in the plaintiff's facility. 4. The plaintiff stated that the plaintiff’s director was served with a public consultation questionnaire on 30th April 2022, by which date the defendant had already completed the construction of the mast and was operating a Base Transceiver Station despite not adhering to the provisions of EMCA. The plaintiff’s director also got information from a neighbour that a public participation meeting was scheduled for 4 th November 2022 to discuss the structure despite the pendency of the present suit. It is stated that the mast poses an environmental hazard for the plaintiff’s employees, patients and the local community since the area is designated as residential. The plaintiff avers that the defendants’ actions are in contravention of Section 58(1) of the Environment Management and Coordination Act and Article 42 of the Constitution on the plaintiff's right to a clean and healthy environment, and that they also undermine the interested party’s authority provided for MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 3 of 56

page 3 of 56

in Section 9(2)(1) of the Environmental Management and Coordination Act. The plaintiff seeks the following orders: a. A declaration that the defendants’ actions are in contravention of the plaintiffs right to a clean and healthy environment; b. An order of mandatory injunction requiring the defendant either by its employees servants hirelings and/or agents or any one of them to dismantle/demolish the said illegal structure and any other developments including the foundation made by the defendant on parcel of land as described above within 7 days of service of this court order and failure of which the plaintiff be at liberty to engage the services of a contractor who will demolish the said illegal structure made by the defendant on the said land and cart away the debris issuing therefrom and the cost incurred thereby be paid by the defendant in any event within a time frame to be specified by the court should this become necessary; c. An order of mandatory injunction requiring the defendant either by its employees, servants, hirings and or agents or anyone of them to dismantle stroke demolish the said illegal structure and any other developments; d. General damages for violation of the plaintiff's right to a clean and safe environment; MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 4 of 56

page 4 of 56

e. Any other relief this honorable Court may deem fit and expedient to grant; f. Costs of this suit. The Defendant's Defence 5. The defendants’ defense is dated 29th February 2024. In that pleading, the defendant denies the plaintiff's claim and maintains that it duly obtained all the licenses and approvals from the licensing bodies according to the law and then proceeded with the construction. It maintains that the Base Transceiver Station mast is properly constructed pursuant to the guidelines provided by the law; that the generator uses on the site is environmentally friendly and therefore cannot affect human health as supported by the plaintiff; that in any event, the area does not frequently experience power failure; that all due diligence was conducted to confirm that the generator was environmentally friendly; that the preliminary issues were dealt with before the site was developed and NEMA was apprised of the same; the public participation or consultation supervised by the office of the interested party and an assessment of the activities were done; that the prayer for demolition of the telecommunication mast or tower should not be granted since all the due process was followed. 6. The defendant maintains that the Amended Plaint is an abuse of the court process and discloses no reasonable cause of action and ought to be struck out as there are other fora before which the dispute can be dealt. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 5 of 56

page 5 of 56

The defendant also avers that no notice to sue or demand was issued and thus the plaintiff is not deserving of the costs of this suit. EVIDENCE Plaintiff's Evidence 7. PW1, Eugene Valentine Eluru, a medical doctor, testified on 2 nd February 2026. He stated that he is a director of the plaintiff and adopted his witness statements dated 26 April 2022 and 19 th May 2025 as his evidence-in-chief and produced documents in the list dated 26 th April 2022 and 21st May 2025 as Exhibits 1 - 5 and 6 - 10 respectively. His evidence is that he is the owner of Gede/ Kirepwe /B215 on which the hospital is built. His evidence closely followed the contents of the plaint without any deviations. 8. Upon cross-examination, he disclosed that he did not have the certificate of incorporation of the plaintiff with him in court and that there is no lease agreement between him and the plaintiff. Neither did he have a survey report with him to demonstrate that Watamu Hospital is situated near the Base Transceiver Station mast. He indicated that he had sought approval before establishing the hospital and he was granted a change of user license. According to him, the National Construction Authority visited the site upon his complaint and closed the site. The suspension order was received by Mr David Oluwachi on 21 st April 2022. PW1 testified that there was no site board at the mast construction site. Construction proceeded MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 6 of 56

page 6 of 56

shortly after the stop order. He had written a letter to NEMA dated 4 th May 2022, for which he did not get any response. He testified that after he was issued with a questionnaire, he filled the same and returned it to Earth Care Services Limited, who had distributed it. 9. PW2, Bernard Bakari, a businessman in Watamu, testified on the same date and adopted his witness statement dated 19th May 2025 as his evidence -in - chief. He stated that when he saw the construction near the hospital, he inquired, and he was informed that a communications mast was being built. He averred that there was no construction approval by the time it was being commenced. He also testified that the National Construction Authority closed the site and told the workers to vacate and that afterwards, someone gave him a questionnaire which he also filled. That was done long after the beginning of the project and towards its conclusion. Consequently, he saw the construction resume. According to him the project proceeded despite non-compliance by the defendant. He was not informed by anyone of the details of the project. 10. Upon cross-examination by Mr Ndolo, he testified that the BTS is about 100 m from the business known as Pole Pole Bar and Restaurant, where he was by then a manager. The construction was restarted about a week after the stop order was given. The questionnaire was served upon him on 30th April 2022, and he filled it. 11. PW3 Damien Davis, hotel general manager of Turtle Bay Beach Club, testified on the same date and adopted his witness statement dated 19 th MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 7 of 56

page 7 of 56

May 2025 as his evidence-in-chief. His evidence is that the Turtle Bay Beach Club was informed that the construction on the site was of a mast. He was disgruntled by the proximity of the mast. By 4 th November 2022, the construction was complete. The community communicated its discontent to NEMA. He was aware of the stop order, but the project construction continued despite the stop order. They were writings on the wall with the date "21st." The questionnaire came after the project was completed. He and others were informed of a meeting long after the completion of the project. 12. Upon cross-examination by Mr Ndolo, he admitted that Turtle Bay Beach Hotel has about 350 patrons daily on average, but the occupancy is about 200 persons. The area hosts both commercial and residential premises; Turtle Bay Beach Resort is about 100 m from the hospital, and it also uses a backup generator. Also remembered that he was called on the telephone from a number which he cannot recall to give an opinion on the project. He never called the number back. He made comments on the document circulated and returned it on 30 th April 2022. He never attended the meeting scheduled for 4th November 2022. 13. Upon re-examination by Ms Kombe for the plaintiff, he stated that he was not aware of whether the meeting scheduled for 4 th November 2022 occurred. 14. With the close of the evidence of PW3, the plaintiff’s case was marked as closed. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 8 of 56

page 8 of 56

Defendant’s Evidence. 15. The defendant called only one witness, Lee Gachari, who testified on 4th February 2026 and adopted his witness statement dated 30 th September 2025, and who produced the documents in the list dated 30 th September 2025 as DExh 1 - 5. His evidence is that he holds the position of legal manager in the defendant company. His further evidence is that the defendant is an owner/ operator/ manager of masts across Kenya's 47 counties. The network of masts numbers about 4500. The defendant began operations in 2018 and has a license and can set up masts anywhere in Kenya. It acquired 700 masts from Telkom Kenya and some more from Eaton Kenya. It serves two telecommunication companies in Kenya, which are Safaricom and Airtel. DW1 stated that he has visited the site subject matter of the present case. He described the mast as a tower structure which has some antennas at the top and some aviation lights above the antennas. At the base of the mast infrastructure is a power source such as solar power, a generator, and call processing equipment. According to him, the antennas are approved by the Communications Authority of Kenya, and they are safe. The authority uses machines to assess the equipment for levels of radiation. 16. DW1 maintained that the Communications Authority would alert the telecommunications provider concerned if the radiation levels were above the limits prescribed. DW1 testified that the location of a BTS is determined by several factors, including the network needs of the area, MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 9 of 56

page 9 of 56

the complaints from the public, or the network providers' detection of high population and call drops. Then the provider instructs a contractor to erect a mast. They share the best site from which a mast can serve the people best. That is called the nominal location. The provider’s equipment is the type approved by the Communications Authority. Any waste from the site is discharged or recycled as appropriate by the subcontractor who maintains the site. According to DW1, to set up a mast, three key approvals have to be obtained: the Kenya Civil Aviation Authority approvals regarding height, the County Physical Planning Approval (with drawings for the mast, the land lease documents and the title of the landowner) and an Environmental Impact Assessment License issued by the National Environment Management Authority. 17. DW1 testified that before the construction of the mast, the soil structure and the nearby environment are assessed to ensure that the ground can hold the mast's weight. After that, a public participation exercise involving the neighboring community is conducted. DW1 maintained that the present site has all three required approval documents. He stated that the defendant subcontracted an EIA expert who is certified by NEMA, that is Earthcare Services Limited, to conduct the EIA process. The site is maintained cleanly and safely. He maintained that the construction of the mast was commenced after the approvals had been obtained. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 10 of 56

page 10 of 56

18. Upon cross-examination by Ms. Kombe for the plaintiff, he stated that the defendant does not construct telecommunications masts, but it owns them and operates them. He is not aware that the National Construction Authority gave a stop order, or that the NEMA officers closed the site for non-compliance with the law. When asked to read from his statement, he stated that the NEMA licence was issued on 16 th November 2022, yet the present suit was filed in April 2022, and then he admitted that the defendant erected the mast after the conduct of the EIA process by Earthcare Services Limited and the subsequent issuance of the EIA licence. DW1 maintained that Earthcare Services Limited carried out a public participation exercise on the ground before the project. DW1 is not sure whether there was any sensitization forum, but he was sure that questionnaires were issued. He admitted that he does not have any minutes of such a sensitization forum. He admitted that by 30 th April 2022, a date after the inception of the present suit, the mast had not been completed. 19. With the close of the evidence of DW1, the defendant's case was marked as closed. The interested party never participated in the hearing, and thus the parties were ordered to file submissions. Plaintiff’s submissions 20. The Plaintiff filed its submissions dated 2 nd March 2026. The submissions substantially reiterate the case pleaded in the Amended Plaint and contend that the Defendant commenced construction of the MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 11 of 56

page 11 of 56

Base Transceiver Station without first obtaining the requisite approvals and without complying with the statutory Environmental Impact Assessment process. It is submitted that the Plaintiff’s director, upon noticing the construction, made inquiries at the offices of the National Construction Authority and the Interested Party, following which the construction was halted. The Plaintiff maintains that despite the suspension of works, construction proceeded and that the EIA Licence relied upon by the Defendant was only issued on 16 th November 2022, long after the institution of the suit and after construction of the mast had commenced. 21. On whether the Environmental Impact Assessment process met the constitutional and statutory threshold, the Plaintiff submits that the Defendant was required to undertake a full environmental impact assessment study and submit an Environmental Impact Assessment Study Report before being issued with an EIA Licence. It is argued that telecommunication infrastructure falls expressly within the Second Schedule to EMCA and therefore attracts the statutory requirement for a study report. The Plaintiff further submits that the document produced by the Defendant was an Environmental Impact Assessment Comprehensive Project Report and not the Environmental Impact Assessment Study Report contemplated under Section 58(2) of EMCA. 22. The Plaintiff relies on Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 12 of 56

page 12 of 56

(KLR) where the Court addressed the distinction between a project report and a study report. The Plaintiff further contends that no evidence was placed before the Court to demonstrate that NEMA exercised the discretion contained in the proviso to Section 58(2) and directed the Defendant to forego the submission of an Environmental Impact Assessment Study Report. Further, it was stated in that Anyango v Ochieng & 9 others [2023] KEHC 17967 (KLR) power, just like all other statutory power of other bodies, should be exercised properly. This court of the view that though it was solely within the mandate of NEMA to decide whether an EIA Study under Section 58(2) of EMCA ought to be waived in favour of a mere project report, its power, just like all other statutory power of other bodies, should be exercised properly. In the present dispute, there was no clarification as to why the Study Report had to be forgone and reliance on the project report alone to licence the BTS was improper. 23. The Plaintiff further submits that there was no meaningful public participation before the commencement of the project. Particular reliance is placed upon the questionnaires produced by the Defendant, including the questionnaire completed by the Plaintiff’s director on 30 th April 2022. The Plaintiff argues that the questionnaires were issued after construction had commenced and after the present suit had been filed. It is further submitted that no minutes of any sensitization forum, attendance lists or MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 13 of 56

page 13 of 56

other documentation evidencing a public participation meeting were produced by the Defendant. 24. The Plaintiff relies upon the authorities of Kwanza Estates Limited vs. Kenya Wildlife Services, (2013) eKLR, Douglas Onyancha Omboga & 3 others (2019) KEELC 4951 KLR, Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 (KLR), Mohamed Ali Baadi and others v Attorney General & 11 others [2018] KEHC 5397 (KLR), and National Assembly & Anor vs Okoiti and 55 others [2024] KECA 876 (KLR) in support of the proposition that public participation in environmental decision-making must be real, meaningful and undertaken in a manner that allows affected persons an opportunity to understand the project and its anticipated effects. The Plaintiff further submits that the subsequent issuance of an EIA Licence did not cure the illegality arising from the failure to undertake the process in accordance with the law. 25. On the alleged infringement of the right to a clean and healthy environment, the Plaintiff submits that the Environmental Impact Assessment Project Report itself identified potential adverse impacts arising from the project, including electronic waste generation and perceived health and safety risks associated with EMF exposure. The Plaintiff further relies upon the Environment Management and Monitoring Plan, which contemplated annual environmental audits, annual monitoring of EMF exposure levels and periodic inspection of the tower and Base MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 14 of 56

page 14 of 56

Transceiver Station. It is submitted that the Defendant produced no evidence of compliance with those monitoring requirements since the mast became operational in 2022. 26. The Plaintiff invokes the precautionary principle and submits that the evidence discloses threats of serious or irreversible damage sufficient to warrant the reliefs sought. It consequently urges the Court to declare the EIA Licence unlawful, order a fresh Environmental Impact Assessment process, and ultimately grant the prayers for demolition and the other reliefs sought in the Amended Plaint. The Defendant’s Submissions 27. The Defendant's pleaded position is that it duly obtained all requisite licences and approvals from the relevant licensing bodies before construction and that the Base Transceiver Station was constructed in accordance with the applicable law and guidelines. It maintains that the generator installed at the site is environmentally friendly, that due diligence was undertaken concerning its effects on human health, and that the public participation and consultation process was undertaken under the supervision of the Interested Party. The Defendant further contends that the Amended Plaint is an abuse of the process of the Court, discloses no reasonable cause of action, and that the dispute ought to be addressed before other fora. It also maintains that no notice to sue or demand was issued and consequently the Plaintiff should not be awarded costs. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 15 of 56

page 15 of 56

28. The main issues arising for determination in the present suit are as follows: 1. Whether the Base Receiver Transmission Station was constructed after compliance with the procedural requirements under the EMCA Act; 2. Whether the construction of the Base Transmission Station is harmful to the Plaintiff’s right to a clean and healthy environment, and if so, what reliefs in respect thereof are they entitled to? 3. Whether the Licenses issued to the Defendant ought to be cancelled by an order of this court; 4. Whether the Base Transmission Station ought to be demolished; 5. Whether the Plaintiff is entitled to general damages for violation of the right to a clean and healthy environment. ANALYSIS AND DETERMINATION 29. Regarding the first issue, the primary law is the Environment Management and Coordination Act (EMCA) which provides as follows at Section 58 (1) and (2): 58. Application for an Environmental Impact Assessment Licence (1)Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 16 of 56

page 16 of 56

being a proponent of a project, shall before for an financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee. (2)The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority: Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases. 26. Further, the first the Second schedule which provides for the projects requiring an environmental impact assessment study report. It reads as follows; “SECOND SCHEDULE [s. 58] PROJECTS REQUIRING SUBMISSION OF AN ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 17 of 56

page 17 of 56

1.Low Risk Projects (a)establishment of places of worship including churches, mosques and temples;(b)community based and social projects including sport facilities, stadia, social halls;(c)community water projects including boreholes, water pans, sand dams and subsurface dams;(d)dispensaries, health centers and clinics; (e)livestock holding grounds and cattle dips;(f)expansion or rehabilitation of markets;(g)car and bus parks;(h)local roads and facility access roads;(i)business premises including shops, stores, urban market sheds;(j)cottage industry, jua kali sector and garages;(k)small scale rehabilitation, maintenance and modernization of projects;(l)schools and related infrastructure for learners not exceeding one hundred; and(m)standard warehouses not exceeding one thousand four hundred square meters. 2. Medium Risk Projects (1)Urban Development including—(a)establishment of multidwelling housing developments of not exceeding one hundred units;(b)tourism and related infrastructure;(c)hotels with bed capacity not exceeding one hundred and fifty; and(d)shopping centers, commercial centers and complexes, business premises, shops and stores not exceeding ten thousand square meters. (2)Transportation including—(a)construction and rehabilitation of MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 18 of 56

page 18 of 56

roads including collectors and access roads;(b)construction of a light rail transit;(c)construction of jetties, marinas, piers and pontoons;(d)rehabilitation works of airports and airstrips; (e)helipads;(f)parking facilities; and(g)construction of bridges. (3)Water resources and infrastructure, including—(a)drilling for purposes of utilizing ground water resources and related infrastructure;(b)water abstraction works; and(c)water supply and distribution infrastructures.(4)Artisanal mining including quarrying of—(a)precious metals and gemstones;(b)limestone and dolomite;(c)harvesting of aggregate, sand, gravel, soil, clay, stone and slate;(d)gypsum;(e)pozollana;(f)carbon dioxide; and(g)ferrous and non-ferrous ores.(5)Forestry related activities, including—(a)timber harvesting in plantation forests; (b)reforestation and afforestation; and(c)wood preservation or treatment facilities.(6)Agriculture and related activities, including —(a)medium-scale agriculture hectares;(b)medium size agricultural and not grain livestock exceeding one hundred storage;(c)medium produce storage size facilities; (d)aquaculture not exceeding one hectare; and(e)medium scale irrigation projects.(7)Medium scale processing and manufacturing industries, including—(a)brick and earth-ware manufacture;(b)abattoirs and meat-processing plants;(c)fish- processing plants;(d)plants for the construction or repair of MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 19 of 56

page 19 of 56

aircrafts or railway equipment;(e)plants for the manufacture of tanks, reservoirs and sheet-metal containers;(f)plants for manufacturing or recycling of plastics or paper;(g)plants for manufacturing pharmaceuticals;(h)plants for the manufacture of coal briquettes;(i)distilleries;(j)any other food-processing plants or agro-based processing plants; and(k)go-downs for storage and warehouses.(8)Power and infrastructure projects, including— (a)hydropower development not exceeding ten megawatts; (b)electrical sub-stations;(c)pumped-storage schemes; (d)cogeneration of power;(e)low voltage power transmission lines; and(f)solar projects, power farms including—(a)service or plants.(9)Hydrocarbons stations;(b)LPG filling plant; and(c)lubricant blending facilities.(10)Waste disposal, including— (a)waste transfer stations or storage facilities;(b)composting sites or plants;(c)removal and onsite disposal of asbestos. (11)Packaged treatment plants or onsite waste water treatment plants.(12)Biofuels processing plants.(13)Telecommunication infrastructures.(14)Expansion of tertiary institutions and related infrastructures. 28. The subsidiary legislation under the Act is the Environmental (Impact Assessment and Audit) Regulations Legal Notice 101 of 2003. “Regulation 4. Approval of environmental impact assessment (1) No proponent shall implement a project— MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 20 of 56

page 20 of 56

(a)likely to have a negative environmental impact; or (b)for which an environmental impact assessment is required under the Act or these Regulations, unless an environmental impact assessment has been concluded and approved in accordance with these Regulations. (2)No licensing authority under any law in force in Kenya shall issue a licence for any project for which an environmental impact assessment is required under the Act unless the applicant produces to the licensing authority a licence of environmental impact assessment issued by the Authority under these Regulations. (3) No licensing authority under any law in force in Kenya shall issue a trading, commercial or development permit or license for any micro project activity likely to have cumulative significant negative environmental impact before it ensures that a strategic environmental plan encompassing mitigation measures and approved by the Authority is in place. (4) If the Authority determines that an application for an environmental impact assessment raises issues that concern more than one district, it shall submit the application to the relevant Provincial Environment Committee.” MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 21 of 56

page 21 of 56

29. The statutory scheme is therefore clear in its sequence. A proponent of a project falling under the Second Schedule is required to comply with the environmental assessment process before the project is implemented. The distinction between the commencement of the project and its eventual completion is material. The law does not contemplate that a proponent may commence implementation and subsequently regularize the project through the issuance of an EIA Licence. 30. In the present case, the photographs filed by the Plaintiff in April 2022 depict the construction as having attained a substantial stage. The Plaintiff further produced a Suspension of Works Order issued by the National Construction Authority to the Defendant on 21 st April 2022. PW1 testified that construction proceeded shortly after the stop order, while PW2 testified that the construction resumed approximately one week after the order. The evidence of PW3 was likewise that the project continued notwithstanding the closure. 31. Of significance is the evidence elicited from DW1. He admitted in cross-examination that the NEMA Licence was issued on 16 th November 2022. He further admitted that by 30th April 2022 the mast had not been completed. That admission, properly understood, does not assist the Defendant. Rather, it establishes that the construction was already underway by that date. The Defendant's contention that the mast was completed only later does not answer the statutory question whether MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 22 of 56

page 22 of 56

implementation had commenced before the requisite environmental process had been concluded and approved. 32. The chronology is therefore telling. Construction had commenced before the institution of the present suit in April 2022, the National Construction Authority issued a Suspension of Works Order on 21 st April 2022, a questionnaire relied upon by the Defendant was signed on 30 th April 2022, yet the EIA Licence was only issued on 16 th November 2022. The environmental licence was consequently issued months after the project had already commenced. 33. The next issue concerns the nature of the document upon which the Defendant relies as constituting its environmental assessment. The Defendant's bundle contains an EIA Comprehensive Project Report dated April 2022. The Plaintiff submits that the law required an EIA Study Report because the project is expressly included in the Second Schedule. The Defendant has not demonstrated to the satisfaction of the Court that NEMA exercised the proviso contained in Section 58(2) and directed that the full study report be dispensed with. 34. The significance of the distinction is underscored by the authority relied upon by the Plaintiff, namely Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 (KLR where the Court observed: - MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 23 of 56

page 23 of 56

“107. Whatever activities the Appellant undertook were supposed to be as per the amendment of Section 58 of the E MCA vide Act No. 5 of 2015, which amendment required that all projects falling within the Second Schedule to the Act should have an EIA Study Report and not a mere project report.” 35. The above proposition fits squarely within the statutory language of Section 58(2) and the Second Schedule as reproduced above. The Defendant was therefore required to demonstrate compliance with that statutory obligation. In the absence of evidence that a full EIA Study Report was submitted, or that NEMA lawfully directed that such study be dispensed with, the Court finds that the environmental assessment process was incomplete at the point when construction commenced. 36. The need for the EIA Study is not merely technical. Regulation 16 provides as follows: “16. Environmental impact assessment study An environmental impact assessment study prepared under these Regulations shall take into account environmental, social, cultural, economic, and legal considerations, and shall— (a)identify the anticipated environmental impacts of the project and the scale of the impacts; (b)identify and analyze alternatives to the proposed project; MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 24 of 56

page 24 of 56

(c)propose mitigation measures to be taken during and after the implementation of the project; and (d)develop an environmental management plan with mechanisms for monitoring and evaluating the compliance and environmental performance which shall include the cost of mitigation measures and the time frame of implementing the measures.” 37. The contents of the said impact study report are as follows; “Regulation 18. Contents of environmental impact assessment study report (1)A proponent shall submit to the Authority, an environmental impact assessment study report incorporating but not limited to the following information— (a)the proposed location of the project; (b)a concise description of the national environmental legislative and regulatory framework, baseline information and any other relevant information related to the project; (c)the objectives of the project; (d)the technology, procedures and processes to be used, in the implementation of the project; MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 25 of 56

page 25 of 56

(e)the materials to be used in the construction and implementation of the project; (f)the products, by-products and waste generated by the project; ( g)a description of the potentially affected environment;( h)the environmental effects of the project including the social and cultural effects and the direct, indirect, cumulative, irreversible, short-term and long-term effects anticipated; (i)alternative technologies and processes available and reasons for preferring the chosen technology and processes; (j)analysis of alternatives including project site, design and technologies and reasons for preferring the proposed site, design and technologies; (k)an environmental management plan proposing the measures for eliminating, minimizing or mitigating adverse impacts on the environment; including the cost, time frame and responsibility to implement the measures; (l)provision of an action plan for the prevention and management of foreseeable accidents and hazardous activities in the cause of carrying out activities or major industrial and other development projects; MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 26 of 56

page 26 of 56

(m)the measures to prevent health hazards and to ensure security in the working environment for the employees and for the management of emergencies; (n)an identification of gaps in knowledge and uncertainties which were encountered in compiling the information; (o)an economic and social analysis of the project; (p)an indication of whether the environment of any other state is likely to be affected and the available alternatives and mitigating measures; and (q)such other matters as the Authority may require. (2) The environmental impact assessment study report shall be accompanied by a non-technical summary outlining the key findings, conclusions and recommendations of the study and shall be signed by the proponent and environmental impact assessment experts involved in its preparation.” 38. It follows that the Study Report serves the substantive purpose of placing before the regulator, and ultimately the public, sufficient information upon which the environmental consequences of a proposed development may be evaluated. In the present case, that process assumes even greater importance because the project was being undertaken immediately adjacent to a medical facility and within MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 27 of 56

page 27 of 56

an area which the Plaintiff contends contains residential and commercial developments. 39. The other crucial element of this process is public participation, which is deeply rooted and has to be adequately undertaken before the commencement of the projects. Regulation 17 of the said regulations provides that; “17. Public participation (1) During the process of conducting an environmental impact assessment study under these Regulations, the proponent shall in consultation with the Authority, seek the views of persons who may be affected by the project. (2)In seeking the views of the public, after the approval of the project report by the Authority, the proponent shall— (a)publicize the project and its anticipated effects and benefits by— (i)posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project; (ii)publishing a notice on the proposed project for two successive weeks in a newspaper that has a nationwide circulation; and MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 28 of 56

page 28 of 56

(iii)making an announcement of the notice in both official and local languages in a radio with a nationwide coverage for at least once a week for two consecutive weeks; (b)hold at least three public meetings with the affected parties and communities to explain the project and its effects, and to receive their oral or written comments; (c)ensure that appropriate notices are sent out at least one week prior to the meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties; and (d)ensure, in consultation with the Authority, that a suitably qualified co-ordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority.” 40. The evidence does not establish that those requirements were fulfilled before the commencement of construction. The Defendant relies principally upon questionnaires. PW1 acknowledged having received and completed a questionnaire after construction had already commenced. PW2 likewise testified that he received the questionnaire long after the project had begun and towards its conclusion. PW3 testified that the questionnaire came after completion of the project. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 29 of 56

page 29 of 56

Most significantly, DW1 admitted that he was unsure whether a sensitization forum had been held and that he had no minutes of such a forum. 41. The Court accepts that written questionnaires may form part of a legitimate public participation process. The difficulty for the Defendant is that the evidence must demonstrate meaningful participation at the legally appropriate stage. A document completed on 30 th April 2022, after construction had commenced and after the proceedings had been instituted, cannot by itself demonstrate that the affected community was afforded a reasonable opportunity to influence the assessment before implementation of the project. 42. This is particularly so where the project itself contemplates impacts which would ordinarily be relevant to persons living or working in its immediate vicinity. The Plaintiff's evidence was that the hospital is situated close to the mast and that noise from the generator was experienced within the hospital. The Defendant's own project report, according to the Plaintiff's submissions, identified potential negative impacts including electronic waste generation and perceived health and safety risks due to EMF exposure. 43. public The Court is also guided by the authority cited by the Plaintiff on participation. In Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR), the Court of Appeal observed: MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 30 of 56

page 30 of 56

“What is critical is a reasonable notice and reasonable opportunity for public participation. In determining what is reasonable notice, a realistic time frame for public participation should be given. In addition, the purposes and level of public participation should be indicated. Reasonableness is also to be determined from the nature and importance of legislation or decision to be made, and the intensity of the impact of the legislation or decision on the public. The length of consultation during public participation should be given and the issues for consultation. Mechanisms to enable the widest reach to members of public should be put in place; and if the matter is urgent the urgency should be explained.” 44. Applying that principle to the facts before the Court, the Court finds that the questionnaire exercise relied upon by the Defendant did not, on the evidence adduced, constitute the full and meaningful public participation contemplated by Regulation 17. The evidence instead indicates that engagement occurred after physical implementation had already commenced. 45. Part of Public Participation is also entrenched even after an impact study report is submitted by the expert and the proponent, as seen in the following regulations: “20. Invitation of comments from lead agencies MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 31 of 56

page 31 of 56

(1)The Authority shall within fourteen days of the receipt of the environmental impact assessment study report, submit a copy of the report to any relevant lead agencies for their comments. (2)Upon receiving the environmental impact assessment study report, the lead agencies shall review the report to ensure that it complies with the terms of reference developed under regulation 11 and that it is comprehensive and shall thereafter send their comments on the study report to the Authority within thirty days or such extended period as the Authority may specify.(3)If the lead agencies to which a copy of the environmental impact assessment study report is submitted fail to submit their comments within thirty days or such extended period as the Authority may specify, the Authority may proceed with the determination of the application for the implementation of the project. 21. Submission of comments (1)The Authority shall, within fourteen days of receiving the environmental impact assessment study report, invite the public to make oral or written comments on the report.(2)The Authority shall, at the expense of the proponent—(a)publish for two successive weeks in the Gazette and in a newspaper with a nation-wide circulation and in particular with a wide circulation in the area of the proposed project, a public notice once a week MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 32 of 56

page 32 of 56

inviting the public to submit oral or written comments on the environmental impact assessment study report; and(b)make an announcement of the notice in both official and local languages at least once a week for two consecutive weeks in a radio with a nationwide coverage.(3)The invitation for public comments under this Regulation shall state—(a)the nature of the project;(b)the location of the project;(c)the anticipated impacts of the project and the proposed mitigation measures to respond to the impacts;(d)the times and place where the full report can be inspected; and(e)the period within which the Authority shall receive comments.(4)The notice to be published in the newspaper as specified under subregulation (3) shall be in Form 8 set out in the First Schedule to these Regulations. 22. Public hearing (1)Upon receipt of both oral and written comments as specified by section 59 and section 60 of the Act, the Authority may hold a public hearing.(2)A public hearing under these Regulations shall be presided over by a suitably qualified person appointed by the Authority.(3)The date and venue of the public hearing shall be publicized at least one week prior to the meeting—(a)by notice in at least one daily newspaper of national circulation and one newspaper of local circulation;(b)by at least two announcements in the local language of the community and the national MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 33 of 56

page 33 of 56

language through radio with a nation-wide coverage.(4)The public hearing shall be conducted at a venue convenient and accessible to people who are likely to be affected by the project. (5)A proponent shall be given an opportunity to make a presentation and to respond to presentations made at the public hearing.(6)The presiding officer shall in consultation with the Authority determine the rules of procedure at the public hearing. (7)On the conclusion of the hearing, the presiding officer shall compile a report of the views presented at the public hearing and submit the report to the Director-General within fourteen days from the date of the public hearing. 23. Decision of the Authority (1)The Authority shall give its decision on an environmental impact assessment study report within three months of receiving an environmental impact assessment study report.(2)The decision of the Authority shall be in writing and shall contain the reasons thereof.(3)In making a decision regarding an environmental impact assessment licence under this Regulation, the Authority shall take into account—(a)the validity of the environmental impact assessment study report submitted under regulation 18 with emphasis on the economic, social and cultural impacts of the project;(b)the comments made by a lead agency and other interested parties under these Regulations;(c)the MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 34 of 56

page 34 of 56

report of the presiding officer compiled after a public hearing specified under regulation 22 where applicable; and(d)other factors which the Authority may consider crucial in the implementation of the project.(4)The decision of the Authority under this Regulation shall be communicated to the proponent within fourteen days from the date of the decision and a copy thereof shall be made available for inspection at the Authority’s offices.” 46. The statutory framework therefore contemplates a sequential process in which assessment, public participation, consideration of comments and regulatory decision precede lawful implementation. The evidence before the Court does not demonstrate that those steps were completed before construction commenced. Rather, the chronology points in the opposite direction. 47. In Irungu v Hayer Marquis Limited & 2 others [2025] KEELC 6602 (KLR), the court properly observed that; “119.The Respondents, however, have not produced any evidence of having submitted an EIA Study Report or of having conducted public participation in line with these requirements, prior to obtaining either of the two EIA Licenses. 120.The Court in Moffat Kamau & 9 Others vs A.G. of Kenya Ltd [2016] eKLR was categorical that where statutory procedures for MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 35 of 56

page 35 of 56

environmental protection are disregarded, a presumption arises that the right to a clean and healthy environment is threatened. That presumption, in the present matter, has not been discharged.” 121.In the circumstances of this case, this court finds that the 1st Respondent, having been under a statutory duty to show that there was public participation in accordance with Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, failed to discharge that duty.” 48. The The reasoning is applicable to the present evidential position. Defendant bore the evidential burden of demonstrating compliance with the statutory environmental process upon which it relied as the basis for its project. Yet the evidence does not demonstrate that a full EIA Study Report was submitted before commencement, nor does it satisfactorily demonstrate the public participation required by Regulation 17. 49. The Court therefore finds that the Base Transceiver Station was commenced without compliance with the mandatory procedural requirements under EMCA and the Regulations. The subsequent issuance of the EIA Licence on 16 th November 2022 did not retrospectively alter the fact that the project had already commenced. 50. The Court consequently answers the first in the negative. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 36 of 56

page 36 of 56

51. Regarding the second issue as to whether the Base Transmission Station is harmful to the Plaintiff’s right to a clean and healthy environment and the available remedies, the Plaintiff bears the burden of establishing the facts upon which its claim of environmental harm rests. The Court is therefore mindful of the following authority relied upon by the Plaintiff: 52. The Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR) held as follows: “In making such a determination we need to examine whether the appellant discharged its burden of proof on a balance of probability to prove ownership of the motor-vehicle. The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 37 of 56

page 37 of 56

both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” Section 107 and 108 of Evidence Act Cap 80 provides who bears the burden of proof in a case. Those two sections provide- “107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 53. The Plaintiff's evidence establishes that the mast is situated in close proximity to the hospital and that the generator operated at the site. PW1 testified that the generator caused noise which was experienced within the hospital, initially running continuously and subsequently operating as a backup system. This evidence was not wholly displaced on cross-examination. The Defendant's own EIA material, as referred to in the evidence and submissions, identifies environmental and health-related impacts which required mitigation and monitoring. 54. The statutory environmental regime is preventive and precautionary. The project was commenced without completion of the legally prescribed assessment process, the Defendant's own project MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 38 of 56

page 38 of 56

documentation identified potential negative impacts, and there is no evidence before the Court demonstrating compliance with the environmental monitoring obligations which were to continue during the operational phase. 55. The Plaintiff relied upon the precautionary principle and cited Mbaazi Avenue Residents Associations another vs. Metricon Home Nairobi Company Limited & 2 others [2025] KECA 1593 KLR as follows: “82……. for the invocation of the precautionary principle, the court must find that there are threats of serious or irreversible damage. The court need not require full scientific certainty in doing so, but a case ought to be made out justifying the steps sought to be taken pursuant to the said principles. 83. In his judgement, the learned Judge was keenly aware of the precautionary principle. He delved at length on the same and cited authorities, both local and international, as well as various international instruments regarding the same. In his judgement: “What is clear from the foregoing is that at the first instance, the obligation to show that a project is environmentally sound falls on the proponent of the development. This burden can be discharged by satisfactorily going through the EIA process and obtaining an EIA license.” 56. The Defendant has not demonstrated through evidence placed before the Court that it has complied with the environmental MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 39 of 56

page 39 of 56

monitoring measures contained in its own Environment Management and Monitoring Plan. According to the documents relied upon by the Plaintiff, that plan contemplated statutory annual environmental audits and annual assessment of EMF exposure levels, as well as inspection of the tower and Base Transceiver Station. No such evidence of compliance was produced. 57. In the circumstances, the Court finds that the Plaintiff has established an environmental threat arising principally from the failure to comply with the statutory safeguards intended to identify, assess and mitigate the impacts of the development. The Court therefore finds that the Plaintiff is entitled to appropriate relief to enforce the right to a clean and healthy environment. 62. On the third issue as to whether the Licenses issued to the Defendant ought to be cancelled by this court, the evidence establishes that the EIA Licence relied upon by the Defendant was issued on 16th November 2022, long after the commencement of construction and after the institution of the present suit. The Defendant has not satisfactorily demonstrated that a full EIA Study Report had been submitted and considered in accordance with Section 58(2), nor that the public participation requirements under Regulation 17 and the subsequent regulations were complied with before commencement. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 40 of 56

page 40 of 56

63. This court agrees with Plaintiffs that the subsequent license cannot retrospectively cure the procedural defects. It relies on Ken Kasing’a vs. Daniel Kiplagat Kirui & 5 others [2015] KEHC 1181 (KLR), where the Court held: ‘73. I am prepared to hold that where a procedure for the protection of the environment is provided by law and is not followed, then an assumption ought to be drawn that the project is one that violates the right to a clean and healthy environment, or at the very least, is one that has potential to harm the environment.’ 64. The Court is persuaded that the EIA Licence, having been issued following an incomplete process, cannot retrospectively render the earlier commencement of construction compliant with the law. The issue is not whether NEMA had jurisdiction to issue an EIA Licence. Rather, it is whether the process preceding that licence complied with the mandatory statutory requirements. On the evidence before the Court, it did not. 66. Consequently, the Court finds that the EIA Licence issued to the Defendant was obtained unprocedurally and cannot lawfully sustain the development. 67. Regarding the fourth issue as to whether the Base Transmission Station ought to be demolished, the Plaintiff seeks a mandatory MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 41 of 56

page 41 of 56

injunction compelling the demolition of the BTS. The Court has already found that the project was commenced without compliance with the mandatory environmental assessment and public participation requirements under EMCA and the Environmental (Impact Assessment and Audit) Regulations. It has further found that the EIA Licence was issued only on 16th November 2022, after the project had already commenced and after the present proceedings had been instituted, and that the Defendant did not satisfactorily demonstrate that the statutory requirement for a full EIA Study Report had been complied with. The question therefore is whether, in the circumstances of this case, the Court should permit the impugned development to remain in place notwithstanding the illegality attending its establishment. 68. The Court is guided by the Court of Appeal in the case of Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR where the court observed: “23.…. Whereas courts of Law are enjoined to defer to specialized Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 42 of 56

page 42 of 56

bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.” 69. In the present case, the Court is not concerned merely with a technical irregularity in the manner in which the development was established. The evidence demonstrates that construction of the BTS commenced before the completion of the environmental assessment process required by law. The Plaintiff’s director, PW1, testified that the hospital offers both in-patient and outpatient medical services and that the BTS is situated approximately 20 metres from the medical facility. His evidence was that the construction was ongoing when complaints were made to the National Construction Authority and NEMA, resulting in the issuance of a suspension of works order on 21st April 2022. He further testified that construction proceeded shortly thereafter. 70. The proximity of the BTS to a functioning medical facility, and the evidence that the generator serving the BTS initially operated continuously and subsequently remained on site as a backup source of power, with the resulting noise being experienced within the hospital, places the environmental and health implications of the development in a distinctly different context from an ordinary development situated away from human activity. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 43 of 56

page 43 of 56

71. The Court has already found that no satisfactory evidence was produced to demonstrate that the Plaintiff, its director, its employees and other persons in the immediate vicinity were afforded meaningful participation before implementation of the project. The evidence instead showed that the questionnaire relied upon by the Defendant was issued during the pendency of these proceedings and after construction had already commenced. DW1 further conceded that he was unsure whether a sensitization forum had been held and that no minutes of such a forum were available. This is significant because the environmental assessment process exists precisely to enable the potential effects of a development to be identified, assessed and mitigated before the development is undertaken, while public participation enables affected persons to interrogate and contribute to that process. 72. The Court must therefore consider the character of the illegality against the purpose of the environmental regulatory framework. This was a telecommunications infrastructure project expressly falling within the Second Schedule to EMCA. The law required the environmental implications of the project to be assessed before implementation, including the potentially affected environment, anticipated direct and indirect effects, health implications, mitigation measures and monitoring mechanisms. Yet the Defendant commenced construction before the environmental licensing process had been MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 44 of 56

page 44 of 56

completed. The subsequent procurement of an EIA Licence could not retrospectively confer legality upon acts which had already been undertaken in breach of the statutory framework. 73. The circumstances are further aggravated by the fact that the BTS was established only a short distance from a medical institution which receives and treats patients and has staff working within its premises. The Court does not lose sight of the fact that the Plaintiff did not place before it expert medical evidence demonstrating that electromagnetic emissions from the BTS had caused a particular disease or medical condition. However, the issue before the Court is not limited to proof of an existing disease. The environmental regime is preventive and precautionary. This is to be seen in the case of CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR). Its purpose is to ensure that potentially harmful consequences are identified and addressed before a project is implemented. The Defendant cannot, having bypassed that preventive process, rely upon the absence of proof of actual physical injury as a reason why an unlawfully established development should be permitted to remain. 74. In the circumstances of this case, the Court is satisfied that the BTS was not simply established in breach of an administrative procedure. It was commenced in disregard of statutory environmental safeguards, in proximity to a hospital, without demonstrated prior MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 45 of 56

page 45 of 56

compliance with the required EIA Study process and without meaningful prior participation of those likely to be affected. This Court has already found that the circumstances amounted to a violation of the Plaintiff’s right to a clean and healthy environment under Article 42 of the Constitution. To allow the structure to remain in place notwithstanding those findings, and notwithstanding the cancellation of the licences upon which the Defendant seeks to rely, would effectively permit the continuance of the very development whose establishment the Court has found to have been unlawful. 75. A mandatory order for removal in the circumstances is therefore not punitive in character. It is a remedial measure intended to restore the position arising from a development which was unlawfully commenced and which has no valid environmental licence capable of sustaining its continued operation. The Court is also mindful that a person or entity ought not to obtain a benefit from non-compliance with environmental law by commencing construction first and seeking to regularize the project thereafter. Such an approach would undermine the preventive purpose of the environmental assessment regime and diminish the effectiveness of the statutory safeguards enacted for the protection of the environment and persons affected by development projects. 76. The Court consequently finds that the Plaintiff has established sufficient grounds for the grant of the mandatory injunction order MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 46 of 56

page 46 of 56

sought for the removal of the BTS. The Defendant shall therefore remove the BTS and all associated structures forming part of the development from the suit property within the period specified in the final orders of the Court. 76. Having found that the Defendant violated the Plaintiff’s constitutional right to a clean and healthy environment, the next question is whether the Plaintiff is entitled to an award of general damages and, if so, the appropriate quantum. The claim is founded upon Article 42 of the Constitution and is therefore a claim for constitutional relief, as opposed to a conventional claim in tort where proof and assessment of particular loss may assume a different character. 77. The Supreme Court of Kenya in CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) observed as follows: 95.In assessing the appropriate sum to be awarded as compensation, the court must feel satisfied that the sum will afford the victim adequate redress to vindicate the victim’s constitutional right. Assessment of the right quantum for compensation will take into account all the relevant facts and circumstances of the violation and the victim in the particular case, bearing in mind any aggravating features. We stress that the purpose of constitutional relief of an award of compensation MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 47 of 56

page 47 of 56

is not necessarily intended to punish the violator, but only to vindicate the right of the victim. 96.In Wamwere & 5 others v Attorney General, SC Petition 26, 34 & 35 of 2019 (Consolidated); [2023] KESC 3 (KLR) we noted that: “91. Crafting of remedies in human rights adjudication goes beyond the realm of compensating for loss as it is principally about vindicating rights. Though the appellants did not lead any evidence of the loss they may have suffered due to the violation of their right and freedom from inhuman treatment, it is important for the court to vindicate and affirm the importance of the violated rights. 92. The foregoing rational is buttressed by the reasoning of the Supreme Court of Canada in City of Vancouver v Ward [2010] 2 SCR 28. In that matter, the court held that damages may be awarded if at least one of three objects is served: individual compensation; vindication, in the sense of addressing harm to ‘society as a whole’; and deterrence, in the sense of influencing government behaviour in order to secure state compliance with the charter in the future’, which would promote ‘good governance’. At para 30 the court recognized that: MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 48 of 56

page 48 of 56

“… the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award.” 93. In awarding damages, courts exercise a very broad, open- ended remedial discretion taking into account what is just, fair and reasonable in the circumstances of the case.” [our emphasis] 97.Therefore, once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation. For these reasons, it can be said that the approach in awarding damages or compensation in constitutional rights violation cases is different from that in tortious claims. The two courts below misdirected themselves in treating the case as if it was based on a claim of libel or one of personal injury by insisting that, even after proving an infringement, the victim must, in addition, demonstrate the extent of loss, injury or damage suffered as a result. 98.This court explains this distinction clearly in William Musembi 13 others v Moi Educational Centre Co Ltd & 3 others, SC Petition No 2 of 2018; [2021] eKLR as follows: MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 49 of 56

page 49 of 56

“.... that the questions and issues that a court has to consider in order to make an award of damages with regards to constitutional violation is manifestly different to what the court would consider in say, tortious or civil liability claim. In the latter, the issues are clear cut and quantification of the appropriate award is in most instances, straight forward. The same, however, is not true of constitutional violation matters, such as the instant one. Quantification of damages in such matters does not present an explicit consideration of the issues; other issues such as public policy considerations also come into play. A court obligated and mandated in evaluating the appropriate awards for compensation in constitutional violations does not have an easy task; there is no adequate damage standard that has been developed in our jurisprudence that recognizes that an award for damages in constitutional violations is quite separate and distinct from other injuries.” 99.The appellants petitioned to be awarded general, exemplary, punitive and aggravated damages for the infringement of the minors’ rights. All the trial court was expected to do in considering this prayer was to assess what, in the circumstances of the case would be the appropriate compensation, or what MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 50 of 56

page 50 of 56

other relief would vindicate the appellants’ contravened rights. Examples of factors the court would have taken account of include the fact that the violations related to children; that some of the children had to transfer from the school; some were ridiculed, and being minors they were bound to suffer distress, trauma, anguish, fear and lowered self-confidence. On the other hand, exculpatory factors to consider would be the fact that some of the respondents, upon learning of the complaints about their publications immediately pulled down the offending story. 100.In the result, it was erroneous for the two courts below to ignore settled principles for the award of compensation in constitutional rights violation claims; namely, that once the burden of proving a violation was discharged, it was not necessary for the appellants to prove any damage or loss so as to be entitled to any of the reliefs contemplated in article 23(3). 78. The complexity of assessment of damages for constitutional violations inbuilt within the very restrictive principles laid in Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR) (19 May 2016) (Judgment) and the CMM case (supra) has been noted by this court in the judgment in Malindi ELC CASE NO. E046 OF 2021. The import of the Imanyara and CMM decisions is that once a violation of a constitutional right has been established on a balance of probabilities, the Court is not required to insist upon proof of actual MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 51 of 56

page 51 of 56

financial loss, physical injury or other quantifiable damage before granting compensatory relief. The object is to vindicate the constitutional right and affirm its importance. The quantum is therefore to be determined upon consideration of the circumstances of the particular violation and such aggravating features as may be disclosed by the evidence. 79. In the present case, the Court has found, on the evidence before it, that the Defendant commenced the construction of the BTS before obtaining the requisite environmental licence and before demonstrating compliance with the statutory EIA Study and public participation requirements. The Court has further found that the EIA Licence was issued only on 16 th November 2022, months after commencement of the project and after the institution of the suit. The Defendant therefore implemented the project first and obtained the environmental licence thereafter. 80. The circumstances surrounding the location and operation of the BTS are also material. The facility was established approximately 20 metres from the Plaintiff’s hospital, a medical institution providing both in-patient and outpatient services. The Plaintiff’s director testified that the generator at the BTS initially operated continuously and that, even after the installation of solar power, the generator remained on site as a backup source of power and generated noise experienced within the hospital. The Court has considered this evidence together with the MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 52 of 56

page 52 of 56

absence of a demonstrated prior assessment of the environmental and health implications of establishing the infrastructure at that location. 81. The failure to undertake the legally prescribed environmental assessment before construction also deprived the affected persons of the preventive safeguards contemplated by the law. There was no demonstrated opportunity, before implementation, for the environmental implications of the project to be properly assessed, mitigation measures to be considered and the affected community, including the Plaintiff, to participate meaningfully in the process. The Court considers this particularly significant in light of the nature of the receiving environment and the immediate proximity of the BTS to a hospital. 82. The violation was therefore not a mere technical or procedural infraction without consequence. The environmental safeguards which the law requires to precede implementation were disregarded in circumstances where the project was capable of affecting persons working in and attending the Plaintiff’s medical facility. The subsequent attempts at public consultation and the later issuance of an EIA Licence could not erase the violation which had already occurred. In the circumstances, the Court finds that the Defendant’s conduct constituted a plain and manifest violation of the Plaintiff’s constitutional right to a clean and healthy environment. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 53 of 56

page 53 of 56

83. In determining the appropriate compensation, the Court nevertheless bears in mind that the purpose of the award is not to punish the Defendant but to vindicate the right which has been violated. The Court also takes into account that the Plaintiff did not produce expert evidence establishing a particular ailment or permanent physical injury occasioned by the BTS. That absence, however, does not disentitle the Plaintiff to constitutional compensation. The Supreme Court in the CMM case (supra) has expressly stated that proof of such loss is not a prerequisite once the constitutional violation has been proved. 84. Taking into account the nature and duration of the violation, the deliberate commencement of the development before completion of the environmental regulatory process, the proximity of the BTS to a hospital, the evidence concerning the generator noise experienced at the medical facility, the failure to demonstrate meaningful prior public participation and the need to vindicate the Plaintiff’s constitutional right, the Court considers an award of Kshs. 200,000/= to be appropriate compensation in the circumstances of this case. 85. The upshot of the foregoing is that this Court declares that the EIA Licence issued to the Defendant in respect of the development of the Watamu Base Gede/Kirepwe/B/80, Transceiver originally Station on Land Gede/Kirepwe/B/216, Parcel was No. obtained unprocedurally, and are thus unlawful and is hereby revoked. This MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 54 of 56

page 54 of 56

court further grants prayers no (a), (c), (d) and (f) as prayed in the plaint dated 26th April 2022. 86. is With regard to prayer no (c) of the plaint, a supplemental order hereby issued that the Defendant shall remove the telecommunication tower (base transceiver station) built on the parcel of land known as Gede/Kirepwe/B80, originally Gede/Kirepwe/B216, within sixty (60) days of this judgment, and in default of compliance with the demolition order, the Plaintiff shall be at liberty to procure the services of a qualified contractor to enter into the parcel of land known as Gede/Kirepwe/B80, originally Gede/Kirepwe/B216 and remove the said telecommunication tower and associated structures and cart away the debris. Also, the removal shall be supervised by the National Environment Management Authority and the County Government of Kilifi, to ensure that it is undertaken in a manner that protects the environment and the residents neighbouring the said BTS. Further, the costs incurred in undertaking the demolition and removal under shall be borne by the Defendant, 87. With regard to prayer no (d) as to general damages, the Defendant shall pay the Plaintiff Kshs. 200,000/= as general damages for violation of the right to a clean and healthy environment. 88. The Defendant shall also bear the costs of the suit. It is so ordered. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 55 of 56

page 55 of 56

Dated Signed and Delivered at Malindi on This 30th Day of September 2026 HON JUSTICE MWANGI NJOROGE JUDGE, ENVIRONMENT AND LAND COURT, MALINDI. MLDELCCE028/22-JDGT/DF-26.04.22/FABM-31.01.24/FH-09.10.25/LH-28.04.26/DJ 30.09.26F . Page 56 of 56

page 56 of 56