Paolo De Maria & 5 others v Alice M Kuria & 5 others

b. An order compelling the third defendant to immediately suspend the operations/activities on the base transceiver tower station operated and constructed by the third defendant property (sic) known as LR number 2917 Malindi; c. A permanent injunction do issue restraining the 3 rd defendant either by themselves/agents and or servants from continuing construction of the base transceiver stations on the 1st and 2nd defendant’s property known as LR NO 2917 Malindi; d. An order cancelling all the Licences issued to the third defendant namely an Environmental Impact Assessment Licence, a Telecommunications licence and a development permission issued for the illegal construction and erection of a mobile telephone base transmission mast on LR number 2917 owned by the first and second defendants and leased to the third defendant; e. An order directing the defendants to immediately dismantle remove and bring down the illegally constructed mobile telephone base transmission tower including its foundation on LR 2917 owned by the first and second defendant and leased to the third defendant; f. An order for the payment of general damages by the defendants to the plaintiffs for violating their right to a safe clean and healthy environment; MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 2 of 51

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g. Any other relief this honorable court may deem fit and expedient to grant; h. Costs of the suit. 2. The plaintiffs’ case is that at all material times they were the proprietors of land Parcels Numbers 2916, 3124 and 2911 which are adjacent to the first and second defendants’ property known as Plot No 2917 Malindi. The third defendant is a company which specializes in construction of telecommunication masts which are leased to network operators. The network operators then install the antennas and transmitters upon the masts. The fourth defendant is responsible for issuing EIA Licences upon compliance with the Environmental Impact Assessment Regulations. 3. On or around the 15th May 2021 the plaintiffs noticed that the first and second defendants had allowed their compound on Plot No 2917 Malindi to be used by the third defendant as an offloading site and metal cutting workshop as well as for construction of a Base Transceiver Tower which exposed the plaintiffs to intrusive noise. Thereafter the third defendant proceeded to illegally construct and erect a mobile telephone-based transceiver station or tower on the property. 4. It is alleged that the third defendant illegally procured an EIA Licence from the fourth defendant without following the laid down regulations. The plaintiffs’ objection was registered with the 4th defendant vide a letter dated 10th May 2021 regarding the construction of the BTS, but MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 3 of 51

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the 4th defendant took no action. Subsequently the 4th defendant issued on EIA Licence without following the environmental impact regulations guidelines and procedures and thus sanctioned the erection of the offending mobile telephone base transceiver station. 5. It is also averred that the 5 th defendant illegally issued a communications Licence to the third defendant without conducting due diligence on procedural issues surrounding the legality of the construction of the transceiver station and the 6 th defendant illegally approved the third defendant’s development application without a change of user. 6. The plaintiffs also state that if any EIA report was submitted by the third defendant, the same was fictitious and not reflective of the views of the project's immediate community or neighbors and the immediate interested or affected parties. 7. The plaintiffs claim that the defendants have violated the plaintiffs’ right by failing to afford them reasonable opportunity to submit oral or written comments on the EIA report before its approval; that consequently the plaintiffs’ rights to a safe, clean and healthy and environment have been violated and/or not recognized by the defendants in violation of Article 42 of the Constitution. 8. The plaintiffs further state that despite the international requirement that a Base Transceiver Station should be 500 metres away from the nearest residential house to minimize radiation levels, the one being MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 4 of 51

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constructed by the third defendant is only 2 m from the boundary wall of the plaintiff's residential houses. It is stated that the Base transmitter station is a health hazard since it emits radiation which is reputed to cause cancer, neurone behavior symptoms, sleeping problems, cognitive performance and infertility among men, and, for those reasons, it should not be set up in a residential area. 9. Further, the BTS mast built in a residential area is a project that is out of character with its surrounding and needs not only an EIA study but also public participation, yet all the houses to be affected by the project were never consulted by the third, fourth and sixth defendants which omission thus violated their procedural rights. 10. The plaintiffs were not given any information on the impact of the project on the environment. They aver that with the construction of the BTS, their properties will necessarily depreciate due to the establishment of harmful radiation in a residential area which will lead to a mass movement from the area. 1st And 2nd Defendants Role in The Suit. 11. The first and second defendants, despite service upon them being effected by substituted service, never filed any documents or participated in the hearing. 3rd Defendant's Statement of Defence Dated 19 th November 2021. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 5 of 51

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12. In its pleading, the third defendant denied the plaintiffs’ claim and stated that in early 2021, it sought to build a telecommunications tower on the first and second defendants’ Plot Number 2915 Malindi in Kilifi County. The 3rd defendant applied for and obtained the requisite approvals for the commencement of the project, including approvals from the fourth and sixth defendants. Further, there was a public participation exercise as required by the Environmental Management and Coordination Act in relation to the project before the grant of the EIA Licence to the third defendant by the fourth defendant, whereby the third defendant provided public consultation forms which were duly completed by the immediate neighbors to the project and submitted to the 4 th defendant consideration. According to the third defendant these forms conveyed the views of the immediate community around the suit property and were duly considered before the issuance of the EIA Licence. Therefore, according to the third defendant a reasonable and fair opportunity was afforded to all interested parties to submit their views before the issuance of the EIA Licence to the third defendant. The third defendant therefore satisfied the requirements of Regulation 17 of the EIA regulations. The third defendant denied that the project is a health hazard as alleged by the plaintiffs. The third defendant averred that by reason of the foregoing there is no basis for the grant of the remedies sought by the plaintiffs. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 6 of 51

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4th Defendant’s Statement of Defence Dated 17th October 2022 13. The 4th defendant denied the plaintiff's claim, and, in particular, that it issued the 3rd defendant the Licence without following the laid down regulations, guidelines and procedures. The 4th defendant averred that as at the time of filing of the present suit, no Environmental Impact Assessment licence had been issued to the first, second or third defendants in respect of the construction of a base transceiver station tower. It conceded that it received the plaintiff's complaint dated May 2021 regarding the ongoing construction of a telephone BTS mast on Plot Number 2917 - Malindi. It denies having taken no action as alleged and contends that upon receipt of the complaint, its environmental officers conducted an inspection on 13th May 2021; at the inspection; that upon finding out that the construction was going on without any Licence, the 4th defendant issued a stop order to the effect that further construction of the BTS be halted until an EIA Licence in respect thereof was obtained; that further complaints were raised by the first plaintiff on 14th May 2021 but for the purpose of avoiding interference with the judicial process, the fourth defendant suspended further enforcement action upon being served with a pleadings in the present suit on 18th May 2022. Thereafter, the third defendant submitted to the fourth defendant an EIA report being an application for an EIA Licence on 25th May 2021. After that, the fourth defendant processed the EIA report in MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 7 of 51

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compliance with the provisions of EMCA and subsidiary legislation and issued the third defendant with an EIA Licence on 16th September 2021. It is denied that the 4th defendant has violated in the rights of the plaintiffs as alleged in the plaint. The 4th defendant points out that the EIA process is usually initiated by the project proponent and not by the 4 th defendant. The Plaintiff’s claim for revocation of the Licence in paragraph 16 of the plaint is bad in law and an abuse of the process of the court, the EIA Licence having been issued on 16th September 2021 well after the filing of the suit. The defendant stated that the proper forum for challenging an EIA Licence by an aggrieved party is the National Environment Tribunal as provided for in Section 129(1) of EMCA. The defendant also stated that this court lacks jurisdiction to hear and determine the matter by dint of Section 129(1) of EMCA, Section 61(3) of the Physical and Land Use Planning Act 29 And Section 102(e) Of the Kenya Information and Communications Act Number 2 Of 1998. 5th Defendant’s Statement of Defence Dated 10th November 2021. 14. In its defence, the fifth defendant denied the plaintiff's claim. It further stated that on 25th September 2018 it granted the third defendant a conditional 15 year Network Facilities Provider Tier 2 Licence commencing on the same date, under the provisions of KICA 1998; that this court lacks jurisdiction to terminate the Licence as proposed by the MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 8 of 51

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plaintiffs as the jurisdiction for that is reserved to the Communications and Multimedia Appeals Tribunal and the High Court, and there has been no challenge raised by the plaintiffs before those fora regarding the decision made by the fifth defendant in exercise of its statutory powers under KICA 1998. The fifth defendant maintains that the plaint does not disclose any cause of action against it and that the court has no original jurisdiction in respect of matters governed by KICA 1998. Plaintiff's Evidence 15. PW1, Paolo Di Maria, the 1st plaintiff, testified on 16th October 2023 and adopted his witness statement dated 13 th May 2021 as his evidencein-chief and produced a bundle of documents as PExh 1 - 5 as per the order in the documents list dated 13 th May 2021 and other documents as PExh 6-12 as per the list dated 3rd October 2023. His oral and written evidence accorded well with what is in the plaint. He asserted that after he consulted his lawyer, the latter wrote a complaint to the fourth defendant and the Malindi County Government and no action was taken and therefore the present suit was filed. He also conceded that NEMA officials from Kilifi visited the site and he was present when they ordered a stop to the construction of the BTS mast. He stated that the third defendant got the Licence on 16 th September 2021 after the construction began and after the suit was filed. He stated that during the construction on 14th May 2021, 15th May 2021 and 17th May 2021 fumes emanated from the site owing to the construction activities. He pointed out that his MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 9 of 51

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name is not among the persons who were said to have been consulted by the 3rd defendant. 16. Under cross-examination by Ms Okuta he stated that he owns Plot Number 2911 and 2916 which are for commercial use. He maintained that of all the plaintiffs’ properties, his property is closest to the BTS yet he was not consulted. He maintained that an EIA report is supposed to be submitted before any construction. He admitted that he is aware that NEMA reviewed the project and gave approval to the same. His further evidence is that there used to be noise from a generator that powered the BTS but later on it was substituted with a solar power system. 17. Under cross-examination by Mr Ngararu, he maintained that he was not availed a chance to give an opinion regarding the project before its construction and that his immediately neighbors were also not consulted. He maintained that he knows most of the neighbors; that if any of them were consulted, such consultation took place after construction began. He claimed that he visited his neighbors by going from house, to house and they maintained that they had not been consulted before the project was implemented. He admitted that he has not challenged the licence of the third defendant either before the National Environment Tribunal or before the High Court. 18. PW2, Luke Omondi, testified on 17th October 2023. He stated that he is a surveyor working with the Ministry of Lands in Hola and he holds a degree in Land Surveying; that he did a survey of the plot numbers MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 10 of 51

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2911, 2916, 2910 and 3124 Malindi. He adopted his witness statement dated 9th October 2023 as his evidence-in-chief in this matter. He maintained that the first plaintiff asked him to conduct the survey to show the distances from the communication mast to several developments located on his plot, which instructions he complied with and filed the report in court which is dated 6 th June 2022 which he produced as evidence as PExh 7. 19. Upon cross-examination by Miss Okuta, he admitted that he complied with the first plaintiff’s verbal instructions in conducting the survey and compiling the report. He visited plot number 2917 physically, and upon taking measurements, he found that the farthest distance was 157.46 m from the center of the communications mast. 20. Upon cross-examination by Mr Ngararu he stated that the area in which he carried out a survey is of mixed commercial and residential use and that the plot he surveyed operates under the name “Marine Holiday Homes”. Plot number 2910 is of residential use. Plot number 3124 is undeveloped but fenced with concrete. Plot No 2917 hosted the mast and had a small building within it, and was fenced. 21. Upon the taking of evidence of the two witnesses as herein above, the plaintiff's case was marked as closed on 12th March 2025. Defence Evidence MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 11 of 51

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22. DW1, Mark Lavi, testified on 12th March 2025 and adopted his witness statement dated 23rd January 2023 as his evidence-in-chief. He also produced documents as exhibits no 3DExh 1-4. He stated that he is the Head of Legal Affairs and regulatory matters at the third defendant company; that the third defendant is a passive infrastructure provider in the telecommunications sector and a provider of power backup services; that in 2021 the Cabinet Secretary of the relevant Ministry designated some telecommunication firms as critical infrastructure owners; that the Communications Authority licences the persons who set up communication infrastructure; that the third defendant has agreements with mobile operators called "Master Lease Agreements" which have terms to lease space in existing communication towers. According to DW1, the third defendant receives site requests, visits the ground asks anyone in the locality if they can lease property, chooses 3 options amongst such lease offers and then authorizes a site acquisition agent to secure a lease. The site acquisition agent is a separate independent body or person who negotiates the lease and gets it executed. The second step is the application for permits by the third defendant who applies for site approval by the Kenya Civil Aviation Authority (KCAA) the building permit by the County Government, and the EIA licence from NEMA. 23. He exhibited copies of all the three Licences at page 45 to 48 of the bundle as follows: the EIA Licence, page 49 of the bundle: the building permit, and at page 50 of the bundle: the KCAA approval. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 12 of 51

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24. He pointed out a bundle of questionnaires said to be from the EIA report. The questions raised concerned the approximate distance to the interviewee’s home or work in relation to the communication Tower. The witness stated that the Height permit (presumably referring to the licence by the KCAA) and the Building Permit (by the County) were issued before the project commenced, but admitted that the EIA Licence was issued later on 16th September 2021. He blamed the delay on a complaint raised with the fourth defendant in respect of the site. He admitted that NEMA visited the site the issued a stop order and directed the completion of a public participation process. 25. Upon cross-examination by Ms. Musau, he confirmed that the third defendant had obtained the Licence envisaged in Clause 3:2 of the Licence issued by the fifth defendant. As far as he was concerned, he was not aware of any challenge raised against the Licence issued to the third defendant by the fifth defendant. 26. Upon cross-examination by Ms Chepkwony, DW1 stated that the process construction began in January 2021. He admitted that all the three Licences are required to be in place before commencement. He admitted that the EIA Licence was issued on 16th September 2021. He asserted by the EIA process began in May 2021, and thus that the EIA Licence had not been issued by May 2021. He did not know whether the conditions of approval contained in the County Government’s notification of approval of extension of user to include a BTS dated 12th May 2021 had been MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 13 of 51

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complied with. He admitted that the fourth defendant’s officers visited the site and gave a stop order; that the finding of NEMA was that the construction was going on yet no EIA Licence was at the site; that subsequent to the inspection by the officers of the fourth defendant, later, on 13th May 2021 and 17th May 2021, the first plaintiff complained again that construction was still going on. He admitted that the present suit was filed on 13th May 2021; that he has never been to the site; that the third defendant was served with an injunctive court order; that in May 2021 the structure was complete; that the Licence was issued after the completion of the construction in September; he reiterated that though County approval for extension of user was issued on 12th May 2021 and it was made subject to some activities, and he does not know whether the stated conditions were complied with. He admitted that some of the public participation forms inviting public comments exhibited by the third defendant are dated July 2021. He also admitted that though public participation is usually done before implementation, in the present case it was done after the implementation of the project. He admitted that from May 2021 there existed an injunction issued by the court against the project. He admitted that the third defendant never exhibited at the hearing the lease it entered into between it and the first and second defendants. 27. Upon cross-examination by Ms. Ndungu, he admitted that none of the plaintiffs were asked to fill in the questionnaires relied on in the EIA MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 14 of 51

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process. He opined that since the plaintiffs’ views were clear from their complaints the 4th defendant must have considered their opinions. 28. Upon re-examination by Ms Wameyo, DW1 stated that there was no legal requirement that all neighbours give their opinion; that the 3 rd defendant has a standard form prepared for such projects, which is provided for in the regulations. He stated that there was no further complaint after the issuance of the EIA Licence and after the suit was filed. The purpose of the BTS was to enhance network connectivity and the entire neighborhood stood to benefit. With the close of the evidence of DW1, the third defendant’s case was marked as closed. 4th Defendant’s Evidence 29. DW2, George Oyoo, testified on behalf of the 4th defendant. He stated that he is the County Director of Environment Kilifi and his work envisages issuance of EIA Licences and that he was based in Kilifi during the material times. He adopted his witness statement dated 5 th December 2022 as his evidence-in-chief in this case and produced documents as defence exhibits 1-8 as per the 4th defendant’s list, also dated 5th December 2022. His evidence is that vide a letter dated 10 th May 2021 the 4th defendant’s Kilifi office received a complaint regarding construction of the base transceiver station being built by the third defendant on property known as LR number 2917 Malindi, and the third defendant’s officers undertook a site inspection on the 13 th May 2021 and MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 15 of 51

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established that construction was indeed going on without an Environmental Impact Assessment Licence from the Authority. The Authority’s officers then issued a stop order which was to last until an EIA Licence was obtained from the authority. The plaintiffs made one subsequent complaint on 17th May 2021 to the effect that the construction was still ongoing and that a lot of noise was emanating from the project site and plans were made to make arrests in accordance with Section 143 of EMCA, which plans were suspended when the 4th defendant was served with summons to enter appearance in the present suit. This withholding of action, he said, was in order to avoid interference with the judicial process. According to DW2, construction and operation of a BTS is a project on telecommunication infrastructure which is classified as a medium risk project under paragraph 2(13) of the Second Schedule of EMCA thus requiring the proponent to submit an EIA project report to the fourth defendant. The project report of the third defendant was however received on 26 th May 2021 being an application for an EIA Licence. No orders of court existed barring the processing of a Licence, and therefore the third defendant’s application was processed in compliance with the provisions of EMCA and its subsidiary legislations, and a Licence was issued on 16th September 2021; that the 4th defendant was satisfied that public participation was conducted by the third defendant and so it issued the EIA Licence. He referred to multiple questionnaires contained in the third defendants project report as proof MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 16 of 51

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that the public participation was of the standard suitable enough for the for the defendant to issue a Licence. He stated that an EIA report such as the one in this case is guided by the process set out at Part 2 of the Environmental Impact Assessment and Audit Regulations (Legal Notice 101 of 2003) whereas EIA reports processed at study level are guided by the process set out that Part 3 thereof; that the Project Report level only requires questionnaires as the tools for collection of information and comments from the public. He emphasized that no EIA Licence had been issued to the third defendant in respect of the construction of a BTS on LR No 2917 before the filing of the suit. 30. Upon cross-examination by Ms Wameyo, he stated that construction was not yet complete by the time of the site visit in May 2021; that the EIA Licence application was received in May 2021, about a week after the site visit. In his view the project qualified for licensing after the application for Licence was made. 31. Upon cross-examination by Ms Ndungu, DW2 stated that there were no negative comments in the questionnaires; that if there were any, they would have been captured in the report. However, DW2 was emphatic that a project should not proceed without an EIA Licence, and that the present project was constructed before the EIA Licence was issued. 32. Upon cross-examination by Ms Chepkwony, DW2 stated that the 4 th defendant came to know of the site vide a report made to it on 10 th May 2021, upon which they verified that the report was true; that at the site, MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 17 of 51

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its officers found materials for construction of a BTS and issued a stop order. He stated that if the stop order is defied, then prosecution of the offender in accordance with the law follows. According to him the EIA Licence takes precedence over all other Licences in that even with all other approvals from other lead agencies the authority was the one to make the final decision as to whether or not the project could proceed, and that he was not aware of an approval from the County Government for the project. He was not aware that the project had been concluded by the time the Licence was issued. 33. Upon re-examination by Mr Ngararu he stated that no EIA Licence should be given just to sanitize a process. He maintained that an EIA Licence takes care of the whole life cycle of a project. He also maintained that the 3rd defendant did not receive any complaint regarding noise from a generator. 5th Defendant's Evidence. 34. DW3, Crispin Juma Ogongo, the officer in charge of telecommunications licensing in the 5th defendant Authority testified on 13th March 2025. His evidence is that the 3 rd defendant applied for a Licence to install infrastructure to enable it provide telecommunication services across the country. A notice lasting 30 days was issued to the public as part of the licensing process. The 5 th defendant never received in the comment on the third defendant’s application, and after 30 days MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 18 of 51

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the 3rd defendant was issued with a Licence, and no complaint regarding that Licence has been received from the public ever since. 35. Upon cross-examination by Mr Ngararu, he stated that he does not know of any case related to health issues arising from telecommunications equipment. 36. Upon cross-examination by Ms Chepkwony, DW3 stated that its licencees would still be required to secure licences from other government agencies which licences would be subject to those lead agencies’ requirements. He was not aware as to whether a report provided for under Paragraph 1 of the Operational Conditions in the 5 th defendant’s Licence had been submitted to the Authority. 37. DW4 Derrick Simiyu, communications compliance officer with the 5 th defendant testified orally and adopted his witness statement dated 20 th September 2023 as his evidence-in-chief; he produced the documents as 5DExhibit 17 to 24. In his evidence he stated that he has worked with the 5th defendant for 18 years; he handles all matters related to electromagnetic fields and ensures that entities are delivering services and products in the desired manner, and that they comply with the Licence issued to them. In July 2023 he visited the site to ensure the project implementers had complied with the Licence terms; he subsequently prepared a report after checking the technical standards. He referred to the ICNIRP Guidelines of 2020 issued under the auspices of the World Health Organization. According to DW4, the tower MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 19 of 51

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in question does not emit radiation beyond the appropriate limit. For people living around the BTS, the upper limit is 4 watts per square meter; he found that radiation in those precincts was below that level. He stated that the tower in question was 34m high with three antennas at the top to cover 360° for over 5 km; that elevation is meant to prevent the obstruction of signal from the tower antennas; that telecommunication signal radiation moves in a horizontal direction at a tilt of 1°. The radiation eventually touches the ground at a point 2,000 metres away from the BTS. He stated that the effects of the tower are lower than the limits allowed and the people around the tower are not affected. He also maintained that the services ensured by the tower are enjoyed by everyone, government and citizen alike; that there are institutions that will be affected if the tower were removed. The service providers’ Customer Service Charters would also be affected. As at July 2023 Airtel a local telecommunications provider, had already become a tenant on the mast and had installed their antennas thereon. When officers of the 5th defendant visited the site, it was complete and there was no noise. There was a solar power system as well as a standby generator and a connection to the grid; the generator has a muffler. His further evidence was that the third defendant first used a generator as a primary source at site as there was no grid connection or solar power at the initial stages. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 20 of 51

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38. When cross-examined by Mr Ngararu, he stated that he has not seen any BTS that has been decommissioned by reason of electromagnetic radiation. All telecommunication towers in the country are known to the 5th respondent and Licencees are supposed to file a report every year. He stated that the 5th defendant could not have the commissioned the present BTS mast if it had any outstanding issues. According to him the 5th respondent’s real responsibility occurs after completion of the mast so that they can ensure that there is compliance. They are not concerned with any incomplete mast as there would be nothing to consider. 39. Upon cross-examination by Ms Chepkwony, DW4 agreed that the mast is located in a developed area and that the tower is 10m away from an adjacent house, and that the distance from the tower to the outer perimeter wall of the plaintiff’s premises is about 2m. The tower stands in the centre, 3m from its own perimeter wall. DW4 emphasized that a tower is a standard development for use by any person. Radiation is cumulative and comes from the antenna and therefore the more the number of antennas the greater the cumulative radiation emitted. According to DW4, the 5th defendant monitors networks in the country and requires mobile service providers to improve or boost their networks, and the construction of the subject tower was a result of that initiative, and the quality of transmission in the area has improved. He denied that the current tower has any effects on its current neighbors. At that juncture the case of the 5th defendant was marked as closed. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 21 of 51

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40. When cross-examined by the court, he stated that the immediate neighborhood has radiation (as per page 62 of his report) of less than 1% against the ICNIRB higher limit of 18.31782%. 41. A site visit request by the plaintiff's counsel, which was not objected to by the other parties, was granted, and a site visit was arranged, and the Deputy Registrar who visited the site prepared a report which has been filed in the court record. ANALYSIS AND DETERMINATION 42. There is no doubt from the material before this court that the 3 rd defendant commenced and completed the construction of the BTS in question before it obtained the mandatory EIA licence. Therefore, this suit having been commenced before the issuance of an EIA licence the issue of whether it is this court or the National Environment Tribunal (NET) is possessed of jurisdiction is rendered moot by that finding since the NET only deals with appeals against grant of refusal of licence under Section 129 of EMCA; Consequently, as at the date of lodging suit, the jurisdiction of this court under Article 162(2)(b) and Section 13 of the Environment and Land Court Act was properly invoked and that situation still obtains whether or not a licence was subsequently issued. 43. The issues remaining for the determination in the present suit are as follows: MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 22 of 51

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a. Whether the 6th plaintiff’s suit ought to be dismissed for want of prosecution; b. Whether the BTS erected by the 3 rd defendant is harmful to the health of the plaintiffs; c. Whether by their conduct the defendants have breached the plaintiff’s rights to a clean and healthy environment and if so whether they are entitled to damages; d. Whether the licences issued to the 3rd defendant ought to be cancelled by an order of this court; e. Whether the Base Transceiver Station ought to be demolished; f. What is the quantum as to damages? g. Who ought to meet the costs of the present suit? 44. Regarding issue no (a) as to whether the whether the 6 th plaintiff’s suit ought to be dismissed for want of prosecution this court notes that the suit was commenced by all the plaintiffs together. They pleaded jointly as against the defendants. The 1st plaintiff was personally very active in the matter and he testified, having been granted authority to act by all the other plaintiffs save the 6th plaintiff. The 6th plaintiff never testified in the matter. It is correct that the provisions of Order 12 Rule 3 of the Civil Procedure Rules mandate the court to dismiss a matter where the plaintiff fails to attend court on the day of hearing. It can not be presumed that a plaintiff who never donated his authority to another plaintiff to act on his behalf was represented at the hearing of a case if he also failed to attend to give or call evidence on his own behalf regarding the statements in the joint plaint in so far as they concern him. In the circumstances of this case the 6 th plaintiff must be taken to have failed to prosecute his case and it is thus for dismissal, and I hereby dismiss it. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 23 of 51

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45. Regarding issue no (b) as to whether the BTS erected by the 3rd defendant is harmful to the health of the plaintiffs, this court notes that "radiation" is the main concern of the plaintiffs. Radiation is defined in EMCA to include “ionising radiation and any other radiation likely to have adverse effects on human health and the environment.” It is therefore that the law recognizes that radiation from certain sources can be harmful to human health and the environment and it seeks to institute certain precautionary measures for the environment. 46. The legal burden of proof that the BTS constructed by the 3 rd defendant is capable of emitting or discharging radiation that would be harmful to human health was on the plaintiffs’ shoulders to discharge. Cases must be decided on the basis of proof. The defendants’ case is that the BTS could have no harmful effect on the plaintiffs or other residents of the area. It was upon the plaintiffs to summon witnesses who could help prove their allegations that the positioning of the BTS contiguous to their premises exposed them to radiation, and that such radiation is likely to be harmful to their health. However, the plaintiffs only called two witnesses, the 1st plaintiff and a Land Surveyor. These are not expert persons learned in the field of radiation so as to shed light on whether the contiguity of the BTS to the plaintiffs’ premises was likely to have any harmful effect on their health. In the opinion of this court, it was not proved by the plaintiffs that the BTS emitted radiation that is harmful to MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 24 of 51

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the environment. However, that does not detract from the fact that certain procedures were not followed by the defendants. 47. I must now address the next issue (issue no (c)) as to whether by their conduct the defendants have breached the plaintiff’s rights to a clean and healthy environment. According to DW2 who testified for NEMA, construction and operation of a BTS is a project on telecommunication infrastructure which is classified as a medium risk project under paragraph 2(13) of the Second Schedule of EMCA thus requiring the proponent to submit an EIA project report to the fourth defendant. 48. The right to a clean and healthy environment is a Constitutional right. Taken literally, the phrase “clean and healthy environment” is usually physical surroundings free from dangerous waste, toxic chemicals, and or any kind of pollution that may affect the physical, mental, and social wellbeing of humans, animals, and plants. A clean and healthy environment for all citizens in Kenya is a Constitutional right under Article 42 which states as follows: “42. Environment Every person has the right to a clean and healthy environment, which includes the right— (a)to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and (b)to have obligations relating to the environment fulfilled under Article 70.” 49. There are two key indicators in Article 42 that a clean and healthy environment is not limited to a physically clean and healthy environment as a cursory interpretation to that phrase may be taken to elicit. First, the MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 25 of 51

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article states expressly that the right to such a clean and healthy environment includes the right to have the environment protected for the benefit of present and future generations. That is right that encompasses transgenerational rights to a clean and healthy environment and makes the very act of protection of the environment and not just a right for the person existing in the present day to enjoy. Secondly the article extends the right to a clean and healthy environment to the right to have obligations relating to the environment fulfilled under Article 70. 50. Article 70 of the Constitution provides as follows: 70. Enforcement of environmental rights (1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter. (2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate— (a) to prevent, stop or discontinue any act or omission that is harmful to the environment; (b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or (c) to provide compensation for any victim of a violation of the right to a clean and healthy environment. (3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.” 51. Before Article 70 comes Article 69 which provides as follows: “69. Obligations in respect of the environment (1) The State shall— (a)ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; (b)work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 26 of 51

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(c)protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; (d)encourage public participation in the management, protection and conservation of the environment; (e)protect genetic resources and biological diversity; (f)establish systems of environmental impact assessment, environmental audit and monitoring of the environment; (g)eliminate processes and activities that are likely to endanger the environment; and (h)utilise the environment and natural resources for the benefit of the people of Kenya. (2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.” 52. The state has a duty to bring into force legislation for the protection of the environment under Articles 42 and 69. It was fortunate that by the time the Constitution of Kenya 2020 was inaugurated the Environmental Management and Co-Ordination Act 1999 (EMCA) had already been enacted and received several amendments. EMCA also envisages the protection of the environment for the benefit of present and future generations. Section 3 of EMCA provides as follows: 3. Entitlement to a clean and healthy environment (1) Every person in Kenya is entitled to a clean and healthy environment in accordance with the Constitution and relevant laws and has the duty to safeguard and enhance the environment. (2) The entitlement to a clean and healthy environment under subsection (1) includes the access by any person in Kenya to the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural purposes. (2A) Every person shall cooperate with state organs to protect and conserve the environment and to ensure the ecological sustainable development and use of natural resources. (3)If a person alleges that the right to a clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened, in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 27 of 51

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person may on his behalf or on behalf of a group or class of persons, members of an association or in the public interest may apply to the Environment and Land Court for redress and the Environment and Land Court may make such orders, issue such writs or give such directions as it may deem appropriate to— (a)prevent, stop or discontinue any act or omission deleterious to the environment; (b)compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment; (c)require that any on-going activity be subjected to an environment audit in accordance with the provisions of this Act; (d)compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and (e)provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental to the foregoing. (4)A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury provided that such action— (a)is not frivolous or vexatious; or (b)is not an abuse of the court process. (5)In exercising the jurisdiction conferred upon it under subsection (3), the Environment and Land Court shall be guided by the following principles of sustainable development— (a)the principle of public participation in the development of policies, plans and processes for the management of the environment; (b)the cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law; (c)the principle of international co-operation in the management of environmental resources shared by two or more states; (d)the principles of intergenerational and intragenerational equity; (e)the polluter-pays principle; and (f)the pre-cautionary principle.” 53. The importance of the inclusion of the precautionary principle in Section 3 of EMCA can not be gainsaid. It is a recognition of the ever-expanding knowledge horizons regarding our environment, a realization that what is MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 28 of 51

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seen as harmless may later end up being harmful to the environment and that all new knowledge requires to be embraced and at the same time tested for its utility and its environmental dangers or risks. And it is not far-fetched to state that this precautionary principle partly informs the Environmental Impact Assessment device etched into Section 58 of EMCA. Section 58 of the Act provides as follows: “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, 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.” 54. The Act has a Second Schedule that provides for the projects should undergo an EIA study. It is titled: “PROJECTS REQUIRING SUBMISSION OF AN ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT.” The purpose of that study is to ensure that all environmental concerns that may emanate from a project are assessed and actual and possible risks and mitigation measures identified. The regulations that serve that process are, according to Section 58(7) of EMCA, the Environmental (Impact MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 29 of 51

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Assessment and Audit) Regulations made under the Act. Regulations 17 and 21 are relevant for the EIA process. Regulation 17(1) 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. 55. Regulations 21 and 22 provide as follows: 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 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 sub regulation (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— MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 30 of 51

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(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 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.” 56. The above provisions provide for a public participation stage at which the citizenry may give their views concerning the project. It is essential to note that Section 58(2) of EMCA expressly stipulates that no project implementation ought to commence unless an EIA Study report has been submitted to NEMA. 57. The public participation stage is inbuilt into the EIA report process. It is inescapable for all project implementers unless of course they intend to evade the law. In the present dispute it is clear that the 3 rd defendant tried to evade the law by commencing the constructing the BTS without applying for an EIA licence. It is also clear that none of the plaintiffs were ever given a chance to give their opinion regarding the project. Even after the project was stopped and the 3 rd defendant ordered to complete the EIA process and obtain a licence, it never subsequently involved the plaintiffs. The explanation given by the witness for the 3 rd defendant, DW1, Mark Lavi, is as follows: MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 31 of 51

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“I cannot know if the plaintiffs were approached. Their views were clear from their complaints. NEMA must have considered them.” 58. It is intriguing that though DW 1 admitted that the NEMA-approved public participation questionnaires targeted neighbours around the project, none of the plaintiff’s names were on the forms. The conclusion of this court is thus that the 3rd and 4th defendants never involved the plaintiffs in the public participation stage even after the plaintiffs raised complaints about the project. The explanation by DW3 that their complaints must have been considered by NEMA does not help the 3 rd defendant because the law does not envisage the input of the public to be gathered through submitted complaints arising after the commencement of the project but through a scheduled exercise not incommoded by acrimony; a peaceful process is in any event the best forum for the purpose of a constructive debate and exchange of ideas. The Public participation process and the precautionary principle are closely intertwined. 59. In Mohamed Ali Baadi and others v Attorney General & 11 others [2018] KEHC 5397 (KLR) it was held as follows: “227. The involvement of the public in environmental decision and policy making must be regarded as important for various reasons. First, the utilization of the views gathered from the public in governmental decision-making on environmental issues results in better implementation of the goals of environmental protection and sustainable development. This is because the resultant decisions raise an expanded knowledge base on the nature of environmental problems that are to be met by the decision. The decisions help to enrich and cross-fertilize environmental rights. 228. Secondly, developing environmental laws and policies is a very resource-intensive area. Hence, the public input comes in MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 32 of 51

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handy, especially in developing countries, in supplementing scarce government resources for developing laws and policies. In addition, at the implementation stage, public vigilance is critical for monitoring, inspection and enforcement of environmental laws and policies by identifying and raising with appropriate authorities, environmental threats and violations.” 60. In Ken Kasing’a v Daniel Kiplagat Kirui & 5 others [2015] KEHC 1181 (KLR) The court held as follows: “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. This presumption can only be rebutted if proper procedure is followed and the end result is that the project is given a clean bill of health or its benefits are found to far outweigh the adverse effects to the environment. It is informative that one of the principles of environmental law is the precautionary principle. The precautionary principle applies where there is uncertainty as to whether a matter has potential to cause environmental harm. The approach in the face of such uncertainty is to exercise caution, and where possible, stop the activity that is suspected to have potential to cause environmental harm. 61. In the case of Amu Power Company Limited v Save Lamu & 6 others [2025] KEELC 7285 (KLR) the court held as follows: “125. In Kenya, EMCA and the Physical and Land Use Planning Act, if implemented strictly for their intended effect, create an impressive participatory framework, and they may eliminate processes or outcomes deleterious to the environment. Public participation is not optional in planning and environmental management in Kenya. The public participation principle and the precautionary principle are inextricably intertwined, but the former serves the latter in a great way. Courts in Kenya can not wring their hands and restrain themselves from acting in favour of the environment where the impact of a proposed project is uncertain, for the precautionary principle is ingrained into our environmental law. The court should be guided by that principle, which is only one of the principles that seek to protect the environment as contained in Section 3(5) of EMCA. Eleven years MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 33 of 51

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after EMCA came, Article 10, article 69(1)(d) and (2) as well as Article 70(1) and (3) of the Constitution followed Section 3(5) of EMCA and further ameliorated the environmental protection framework by Constitutionalizing public participation and the precautionary principle. It is the case then that if in a proposed project all the steps prescribed by such a praiseworthy environmental protection and management framework as that which this country inaugurated long ago in 1999 upon the enactment of EMCA have not eventuated, or if some of them have been omitted, then it is a self-inflicted burden, and not a light one, that is incumbent upon the project proponent in default, to demonstrate that no harm will befall the environment if the project is executed as proposed.” 62. In further emphasizing on the precautionary principle, Section 3 of EMCA states as follows: “(4)A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury provided that such action— (a)is not frivolous or vexatious; or (b)is not an abuse of the court process.” 63. In the case of Mbaazi Avenue Residents Association & another v Metricon Home Nairobi Company Limited & 2 others (Civil Appeal E1010 of 2024) [2025] KECA 1593 (KLR) (3 October 2025) (Judgment) Neutral citation: [2025] KECA 1593 (KLR) it was held as follows: “82. It is, however, clear from the authorities cited above that 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.” 64. The court in Odando & another (Suing on their Own Behalf and as the Registered Officials of Ufanisi Centre) v National Environmental Management Authority & 2 others; County Government of Nairobi & 5 MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 34 of 51

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others (Interested Parties) (Constitutional Petition 43 of 2019) [2021] KEELC 2235 (KLR) (15 July 2021) (Judgment) held as follows: 114.What the precautionary principle implies is that the State has a duty to prevent environmental harm and health risks as well as conduct that may be harmful even where conclusive scientific evidence regarding the harmfulness is not available. The Respondents must take precautionary actions aimed at reducing exposure to potentially harmful substances, activities and conditions to minimise significant adverse effects to health and the environment. 115.One way of implementing the precautionary principle is by shifting the burden of proof to the polluters and exploring alternatives to the harmful actions such as the Dandora dumpsite. The precautionary approach to be adopted by the State should focus on how much harm can be avoided rather than consider how much can be tolerated. 116.Under this principle, the State would rather be wrong in acting instead of failing to act at all because the damage the pollution is likely to cause to human health and the environment may take years to be ascertained scientifically. The Respondents should minimise the future costs of being wrong about environmental and health risks posed by air and water pollution in the country. Applying the precautionary principle in stopping air and water pollution will prevent the actual causes of respiratory and other diseases as well as other underlying risks to health. This would entail examining the evidence of risk and uncertainty to determine the possibility of a significant health threat and the need to take precautionary action. This can only be done by reducing pollution at the source. 65. The 3rd respondent ignored the very participatory framework prescribed by the law for the purpose of eliminating processes or outcomes deleterious to the environment. The 3 rd respondent never apprised the 4 th respondent that it was developing a telecommunications mast and it is the complaints of the plaintiffs that alerted the 4 th respondent of the fact. It was the duty of the 3rd respondent to alert the 4th respondent that it had a project on its hands to implement, but it did not do so. The 4 th respondent may be excused for it swung into action and demanded MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 35 of 51

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compliance with the law. The 3rd defendant’s main submission is that the project was not concluded before an EIA Licence was issued. However, that assertion is not correct as seen from the evidence before court and the 3rd respondent’s express admissions as seen herein above, and the 3rd respondent lacks an answer to the charge that it never involved the plaintiffs in the public participation stage even after the plaintiffs raised some complaints about the project. 66. Horizontal application of the Bill of Rights is a reality in our jurisprudence. The primary basis for this position is that the Constitution of Kenya at Article 2(1) states that it binds all persons and all state organs at both levels of government, and Article 22 (1) provides that “…every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.” 67. It thus matters not if it is an individual person, a private company, an association, a statutory corporation of a government office or department. They are all seen to have the potential to violate or to threaten to violate the rights of a citizen. In Baobab Beach Resort and Spa Limited v Duncan Muriuki Kaguuru & another [2017] KECA 192 (KLR) learned counsel Mr. Inamdar for the appellant submitted that the dispute involved allegations of racial discrimination against the appellant which arose from the denial of entry of the respondent into the appellant’s private hotel, and therefore a claim by one private citizen against MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 36 of 51

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another; that under the Constitution, the Bill of Rights is not applicable horizontally between private citizens. In the Baobab Beach Resort case (supra), the Court of Appeal, after reviewing the provisions of article 22(1) and the cases of Kenya Bus Services Limited & Others vs The Attorney General & 2 Others [2005] eKLR, Uhuru Kenyatta vs Nairobi Star Publications Limited [2013] eKLR and Mwangi Stephen Mureithi vs Danial Arap Toroitich Moi [2011] eKLR, Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others, [2012] eKLR Rose Wangui Mambo and 2 Others vs Limuru Country Club and 17 others [2014] eKLR and BA and another vs Standard Group Limited and 2 Others [2016] eKLR stated as follows: “A review of these and other authorities makes it cognitively clear that, unlike the retired constitution, the provisions of the current Constitution are to be generally applied both vertically and horizontally. More particularly, in so far as the Bill of Rights was enacted to provide guarantees against the violation of the constitutional rights of persons, its application is required to be invoked, either directly or indirectly against another person, whether a person, company, association or other body of persons whether incorporated or unincorporated or against any public entity so as to give full effect to the aspirations of the Kenyan people, and the provisions of the Constitution, so as to safeguard against actions by persons who indiscriminately choose to trample upon the rights of others.” 68. In the light of the foregoing case law, constitutional and statutory provisions, it is the conclusion of this court that the statutory and Constitutional rights of the remaining plaintiffs to a clean and healthy environment were capable of violation and were indeed violated by the 3rd respondent for its non-compliance with EMCA and its Regulations and MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 37 of 51

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the consequent illegal project implementation that went contrary to the guarantees in Article 42 of the constitution. 69. This court will deal with the next two issues together as they are related. They are as to whether the licences issued to the 3 rd defendant ought to be cancelled by an order of this court and whether the Base Transceiver Station ought to be demolished. 70. Regarding the cancellation of licence the plaintiffs have cited the provisions of Section 24 KICA and argued that if the proper process was not followed in respect of the EIA public participation requirements and the securing of planning approvals, and the licences issued to the 3 rd defendant by both the 4th and 5th defendants ex post facto are thus unconstitutional, invalid, null and void, and that they ought to be declared so. They state that the BTS is out of character with its surroundings and a contravention of the law. They relied on the case of Ken Kasinga V Daniel Kiplagat & 5 Others 2015 eKLR. The petitioner in that case was the registered proprietor of land registered in Nakuru situated in Milimani area, an up market residential estate in Nakuru Town. It is his contention that his rights as contained in Articles 42 and 70 of the Constitution of Kenya, 2010, have been infringed by the respondents by virtue of the construction of a BTS on the neighbouring premises without his being consulted. The application for extension of user was allowed by the County Government of Nakuru before the advertised 14 days expired and NEMA gave the project Environmental MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 38 of 51

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Impact Assessment Licence within 62 days of the lodging of the EIA Project Report. He complained several times to NEMA who after the issuance of the EIA Licence informed him he could appeal to NET. In the suit he contended that the NEMA issued an EIA licence without following the environmental impact regulations, guidelines and procedures, thus unprocedurally sanctioning the illegal erection of a mobile telephone base transmission mast; that the contractor has proceeded to illegally construct and erect a mobile telephone base transmission mast on the property owned by the 1st respondent in the suit, having illegally procured an EIA licence from NEMA without following the laid down regulations; that the Communications Commission Of Kenya illegally issued a telecommunications licence to the Contractor without conducting due diligence on procedural issues surrounding the legality of the construction of the mobile telephone base transmission mast, thus allowing the contractor to illegally switch it on; that the County Government of Nakuru illegally approved the contractor’s development application without a change of user. In that case the court held as follows: “63. The EIA licence was issued on 28 November 2013 pursuant to an EIA project report. It however seems as if development on the site had proceeded before the issuance of this licence. I say this, because there seems to have been developments ongoing, as at 20 November 2013, when the petitioner wrote to the County Director of Environment complaining of the development and complaining that a telephone base transmission mast was being raised. This was followed up by the petitioner's letter of 27 November 2011, where he again complained that no EIA had been carried out, and if any was carried out, no notice MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 39 of 51

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had been given to the neighbours, him included. The respondents have not contested the averments of the petitioners and have not demonstrated that the development was only begun after the EIA licence was issued. To me, there appears to have been a violation of Section 58 of EMCA which provides that no projects should be commenced without at least there having been tabled an EIA project report.” 71. The court in Ken Kasinga (supra) proceeded to state as follows: “83. The petitioner asked for orders to cancel the EIA licence, the telecommunications licence and the development permission issued herein. There is no telecommunications licence to cancel as the 3rd respondent has none, and I have already issued appropriate orders to address this. On the other two licences, I have already held that there was impropriety in the manner in which the EIA licence and the development permission were granted. I have little option but to cancel the two licences issued by NEMA and the County Government of Nakuru. They are hereby cancelled. 84. The petitioner has asked that the base transmitter station which is the subject of litigation be dismantled. I have held that the base station is a potential risk to the environment. I would have been prepared to issue an order that a fresh EIA be conducted, and if found safe and that appropriate mitigation measures have been undertaken, allow the mast to remain in place. However, the mast has been put up and is being operated by an entity that has no licence to do so. I will be perpetuating an illegality if I am to allow the base station to remain in place. The base station must be pulled down and the environment restored to the manner that it was before the illegal mast was put up. I therefore issue an environmental restoration order, ordering all the respondents to jointly ensure that the site in dispute is restored back to the manner that it was before the base transmitter station was constructed. I direct that this be done within 30 days.” 72. The provisions of Section 58 were amended long ago in 2015 to mandatorily provide for the submission of an Environmental Impact Assessment Study Report for any project listed under the 2 nd Schedule of EMCA. Section 58(2) provides as follows: “(2) The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 40 of 51

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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.” 73. It is the case that complaints having been raised by the plaintiffs regarding the project, NEMA should have been more careful in applying its discretion if it was to order that the submission of the EIA Study Report be foregone by the 3rd defendant. In Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 KLR this court distinguished a project report and a study report. In their evidence I have not seen any comments on the reasons for failure to order a Study Report. It is solely within the mandate of NEMA to decide whether an EIA Study under Section 58(2) ought to be waived in favour of a mere project report, but its power, just like all other statutory power of other bodies, should be exercised properly. In the case of Anyango v Ochieng & 9 others [2023] KEHC 17967 (KLR) the court held as follows: 92.In Republic v. Commissioner of Co-operatives ex parte Kirinyaga Tea Growers Cooperative Savings & Credit Society Ltd CA 39/97 119991 EALR 245 the Court of Appeal warned against the improper use of power in the following words: ...it is axiomatic that statutory powers can only be exercised validly if they are exercised reasonably. No statute ever allowed anyone on whom it confers power to exercise such power arbitrarily, capriciously or in bad faith…. 93.The above position was amplified in Nairobi High Court Miscellaneous Application No. 1769 of 2003 Republic vs. Ministry of Planning and Another ex-parte Professor Mwangi Kaimenyi, where It was held: MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 41 of 51

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So, where a body uses its power in a manifestly unreasonable manner, acted in bad faith, refuse to take relevant factors into account in reaching its decision or based its decision on irrelevant factors the court would intervene that on the ground that the body has in each case abused its power, The reason why the court has to intervene is because there is a presumption that where parliament gave a body statutory power to act, it could be implied that Parliament intended it to act in a particular manner.”” 74. The 3rd defendant never produced any project report or study report at the hearing. The licence dated 16/9/2021 was issued solely on the basis of a Project Report. Having regard to the case law cited above and Section 58 of EMCA this court’s view is that a licence issued by NEMA prior to submission of a Study report and without clarification as to why the Study Report had to be forgone is invalid. NEMA owes the objectors to the project such an explanation. 75. Though I am satisfied that the 3rd defendant’s network facilities provider Tier -2 Licence was in force as at the time of construction of the BTS, it was a clear stipulation in the height approval licence that it secured from the Communications Commission of Kenya that the height approval licence issued by the 5th defendant did not override any other legal requirements. In respect of the 6th defendant, the claim of the plaintiffs was that the project was carried on without any change of user. I have examined the letter dated 12/5/2021 which is in the record. DW3 when cross-examined by Ms Chepkwony stated and reiterated that he did not know whether the conditions of approval contained in the County Government’s notification of approval of extension of user to include a MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 42 of 51

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BTS dated 12th May 2021 had been complied with. The 3 rd defendant did not therefore prove that the said conditions were satisfied and this court can not therefore hold that as at the time the BTS was constructed there was effective approved change of user from the 6 th defendant. That approval can not now stand. 76. It is axiomatic that without the licences, the Base Transceiver station can not legally stand or operate and it must be dismantled. This court is mindful of the fact, as stated in Mbaazi Avenue Residents Association (supra), that a court of law is not an expert in management of the environment and that the Constitution has bestowed the mandate on Parliament to enact statutes to create bodies to manage and regulate land use and planning and pursuant to that mandate, various pieces of legislation governing land use planning in Kenya have been enacted. The true test of the extent to which any BTS has complied with environmental standards lies in the verdict of the 4 th respondent after it has subjected an environmental impact assessment study report to scrutiny. That report must go through all the stages required by the regulations for it to be considered as a valid report upon which a licence can be issued by the 4th respondent. 77. The upshot of the foregoing is that all the licences issued by the 4 th and 5th defendants and the approval of change of user purportedly granted by the 6th defendant are illegal ought to be cancelled and the BTS removed from the site. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 43 of 51

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78. As to the quantum of damages it is noteworthy that the guiding principles that guide the court in awards of damages in constitutional petitions were enunciated in Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR) (19 May 2016) (Judgment) where the court, after reviewing, inter alia, Benedict Munene Kariuki & 14 Others vs. The Attorney General Petition Number 722 of 2009 (2011) eKLR, the Privy Council case of Siewchand Ramanoop v The AG of T&T, PC Appeal No 13 of 2004, Tamara Merson v Drexel Cartwright and Ag (Bahamas) Privy Council Appeal No. 61 of 2003 and Alphie Subiah v The Attorney General of Trinidad and Tobago Privy Council Appeal No. 39 of 2007, stated as follows: “Consistent with the above judicial experience and philosophy, it seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration. Public policy considerations is also important because it is not only the petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.” MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 44 of 51

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79. 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) the court stated 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 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, MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 45 of 51

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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: “… 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: “.... that the questions and issues that a court has to consider in order to make an award of damages with MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 46 of 51

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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 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. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 47 of 51

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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). 80. Thus, the task in this court’s hands is to strike a balance and establish what quantum of award would not seem to be a compensatory or punitive award, but which would still vindicate the rights violated and at the same time prevent or deter any future infringements by the 3 rd respondent. 81. In the Ken Kasinga Case (supra) the court awarded damages for violation of the right to a clean and healthy environment, stating as follows: “85. The petitioner has asked for general damages for violation of his right to a clean and healthy environment. On this, I will award a token Kshs. 10,000/= jointly against the respondents in recognition that his rights were duly infringed.” 82. In this court’s view, the complexity of assessment of damages for constitutional violations is inbuilt within the very restrictive principles laid in Imanyara (supra) and the CMM case (supra) in that they proffer no precise assessment formula, and are seriously compounded by the obvious fact that whereas a considerable award may be considered to be against those very principles, a mediocre award may simply water and fertilize the exponential growth in number of similar future violations due to the offender’s confidence in its fiscal muscle to sustain multiple court awards in damages; that would possibly have a great effect in promoting MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 48 of 51

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want of legal compliance in the industry, and it would certainly stymie the further development of public environmental vigilance in Kenya. For those reasons this court’s view is that the award in the present case needs to be higher than that in the Ken Kasinga case (supra) which decision was, in any event, rendered in 2019, but not so high as to feel exceedingly punitive for the 3rd defendant. 83. Having examined the circumstances of this case, including the declaration granted regarding the plaintiffs’ rights, and the grant of the various other orders that they had sought, this court is of the considered opinion that Kshs 100,000/= would be adequate for each of the plaintiffs as damages. 84. The 1st and 2nd defendants were not involved in the alleged breaches of right and remained passive providers of land for the construction of the BTS. The 4th defendant was unaware of the construction of the BTS until complaints reached it, and it took action and stopped the works. The 5 th and 6th defendants’ roles were to issue conditional licence or permit respectively and it was for the 3 rd defendant to comply with the conditions before commencement of construction for the project to legally kick off. The non-compliance with EMCA and its Regulations and the consequent illegal project implementation by the 3 rd defendant occasioned the present suit, and thus the costs of the suit shall be borne by the 3rd defendant alone. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 49 of 51

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85. The prayers in the plaint dated 13th May 2021 are irregularly numbered and for good order, I hereby amend the numbering thereof with the effect that they are now serially numbered as prayers nos (a) – (h). 86. The upshot of the foregoing is that the plaintiff’s claim succeeds and I enter judgment against the defendants and I hereby grant prayers no (a), (b), (d), (e), (f) and (h) in the plaint dated 13th May 2021 as amended in paragraph 85 of this judgment by the court. 87. With regard to prayer no (e) of the plaint, a supplemental order is hereby issued that the 3rd Defendant shall remove the telecommunication tower (base transceiver station) built on the parcel of land known as LR No 2917- Malindi within sixty (60) days of this judgment, and in default of compliance with the demolition order, the 1st – 5th Plaintiffs shall be at liberty to procure the services of a qualified contractor to enter into the parcel of land known as LR No 2917- Malindi 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 3 rd Defendant. 88. With regard to prayer no (f) as to the quantum of general damages, the 1st, 2nd, 3rd, 4th and 5th plaintiffs are hereby awarded Kshs 100,000/= MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 50 of 51

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each against the 3rd defendant for violation of their constitutional rights under Article 42 of the Constitution of Kenya 2010. It is so ordered. Dated, signed and delivered at Malindi on this 30 th Day of September 2026. HON JUSTICE MWANGI NJOROGE JUDGE, ENVIRONMENT AND LAND COURT, MALINDI. MLDELCCE046/21-jdgt/DF-13.05.21/FABM-16.10.23/FH-12.06.23/LH-28.04.26/DJ-30.09.26F. Page 51 of 51

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