Esther Cheptanui Chebii,Stephen Kiprop Chebii & Juliet Kibet Chebii v Sbi International Holdings (Ag) K & National Environment Management Authority [2019] KEELC 1119 (KLR)

REPUBLIC OF KENYA

IN THE ELC OF KENYA

AT NYAHURURU

ELC NO 19 OF 2019

ESTHER CHEPTANUI CHEBII....................................................................1st PLAINTIFF/APPLICANT

STEPHEN KIPROP CHEBII........................................................................2nd PLAINTIFF/APPLICANT

HKC (Suing in hisbehalf and as next Friend of BC (Minor)....................3rd PLAINTIFF/APPLICANT

JULIET KIBET CHEBII.............................................................................4th PLAINTIFF/APPLICANT

VERSUS

SBI INTERNATIONAL HOLDINGS (AG) K....................................1st DEFENDANT/RESPONDENT

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY.....2nd DEFNDANT/RESPONDENT

RULING

1. The Application dated the 10th April 2019, brought under the provisions of 40 Rule 1, 2 and 3 of the Civil Procedure Rules, and Section 1A, 1B and 3A of the Civil Procedure Act seeks for temporal injunctive orders against the Respondents herein injuncting them from operating from 269 Project Campsite ongoing maintenance of Marigat Muchongai- Karandi, Ol Ng’arua Muhotetu-JNCT C 77 and Muhotetu –Sipili Roads Karandi, pending the hearing and determination of the suit.

2. The said application was supported on the grounds on the face of it as well as on the Supporting Affidavit of Henry Chebii.

3. Interim orders were granted to the effect that the Defendant/Respondent herein should cease from operating the machines that were emitting hazardous fume within the campsite known as 269 project Campsite Marigat Muchongi Karandi Ol Ng’arua Muhotetu-JNCT C 77

4. The application was disposed of by way of oral evidence wherein the Applicant submitted that they sought to stop the 1st Defendant from operating a campsite known as Project Campsite No. 269 ongoing maintenance of Marigat Muchongoi/Karandi Orng’arua Muhotetu/Junction C77 pending the hearing and determination of this matter.

5. That their Application was supported by the Affidavit of HKC who had sued on his own behalf and on behalf of a Minor BC, aged 9 months. The other Plaintiffs sued on their own behalf. The Plaintiff also sued on behalf of Estate of John Kiplangat.

6. They stated that sometime in September 2017, the 1st Defendant started the process of setting up the campsite which is 4 meters from the Applicants’ houses.

7.  That the Plaintiffs were members of the same family living in the same compound. That the suit site was the only place they called home and had no other alternative place to go to. That the campsite started operation proper in the year 2018 without engaging the Plaintiffs directly

8. After commencement of the project, the Plaintiffs had realized that their homes became uninhabitable when the operation of the camp exposed them to health hazards in the form of fumes emitted from a tax mixer and a bitumen boiler witch fumes they were forced to inhale together with the young children.

9. That there was also deafening noise from the campsite coupled with a high voltage transformer mounted next to 1st Applicants’ house which transformer had been producing sparks particularly when birds perch on it and which shocked them and interfered with their sleep.

10. That there was also pollution of dust from the campsite which was normally deposited on the Applicants’ houses. That further, a wall located 4 meters from their house was marked with writings that classified the area as a radiation area.

11. That it was based on this situation that the Applicants’ lives were in danger, they could not peacefully enjoy their land and therefore they had lodged a cause of action based on their Constitutional rights to enjoy and use their land. That their cause of action was also based on the tort of nuisance.

12. That under paragraph 11 of their supporting affidavit it has been deponed that the minor, BC had developed respiratory system complication which allegation was supported by the report from the doctor with a recommendation that the child be accommodated in a place where she was not exposed to dust and smoke.

13.  That the 1st Plaintiff who is an elderly lady had also developed health complications, wherein the doctor’s recommendation was that she avoids environmental vibrators and high intensity noises.

14. The Plaintiffs annexed photos depicting the agents of pollution contained in that campsite. And proceeded to describe the photographs as follows:

i.   That 1st photo shows a heap of cement put together near the fence boarding the homestead and the camp.

ii.  That the 2nd photo showed some crushed ballast ready for preparation.

iii. 3rd photo shows a heap of sand ready for preparation.  There is a lorry ready to be loaded with the substance. One of the machines that emits sounds was also visible in the photographs.

iv. The perimeter fence that had a razor wire is also marked with a sign that reads “caution radiation area”.

15.  That the 1st Applicants’ water tank was less than 2 meters from the wall and for these products to be moved from the ground to the lorry, they had to be scooped wherein a lot of dust was raised and deposited on the houses near that wall.

16.  That in the list of documents filed by the 2nd Defendant, there was an environmental assessment impact report wherein at page 3 there was an executive summary which indicated the positive and negative impact of the proposed project and mitigation measures.

17.  That at page 4 of that document, it was noted that the stake holders were consulted by the experts who noted that the neighboring land will be affected and that was unavoidable but could be mitigated. Some of the impact that was noted was air pollution and noise pollution.

18.  That from the questionnaire used by the lead expert, there had been no questionnaire from the immediate neighbor the Plaintiffs herein who were based only 4 meters away. That a person who was 600 meters away from the site had stated that he would be affected by the campsite. The report suggested mitigation measures.

19.  It was their submission that wherein the proponent of the project knew that even their workers needed to be protected, nothing was said of the Plaintiffs who was 4 meters away.

20.  That both the replying affidavit by the 1st Defendant sworn on 14th May 2019 and 4th July 2019, did not indicated how they had protected the immediate neighbor, the plaintiff herein who were 4 meters from all these harmful products.

21. That the “Baseline Environmental measure line report” was a report compiled hurriedly and was not explicit as to what activities were going on and what activities were not going on.

22. That a public health officer had visited the Applicants’ home wherein he had written a report marked addressed to the manager of the campsite (with recommendations that the Plaintiffs be moved to at least 200 meters away from the campsite. No contrary report had been produced by the any of the Defendants.

23. That vide the communication between 3rd Plaintiff and the manager of the project, the Plaintiffs had sought to be reallocated to a far end part of their land a fact which had not been denied by the Defendant.

24. That one had to discharge the principles set down in the case of Giella vs Cassman Brown before a grant of injunction could be granted. The Plaintiffs had a right to a clean and health environment. They had produced a report showing harm caused by the products of the campsite.

25.  That pursuant to the provisions of Article 70 of the Constitution, one was supposed to allege and not prove harm. It was their submission therefore that they had proved a prima facie case.

26.  On the 2nd principle of irreparable harm, the Applicants’ submission was that one’s health was connected to a right to economic rights. That due to the harm caused at the campsite, the 1st Plaintiff was unable to milk her cows. That although the advantage of the project was commercial in nature, yet it could not be compared to the harm caused to the Applicants’ health. They relied on the case of Ken Kasing’a vs Daniel Kiplagat Kirui & 5 Others [2015] eKLR.

27.  On the 3rd principle, it was the Applicants’ submission that on the balance of convenience, by weighing the two situations, if the project was to proceed and it turned out at the determination of the suit that the campsite was  a source of harmful substance that affected the health of the Plaintiff, this was something that would be irreversible. The Plaintiffs had no alternative homes.

28. The Plaintiff prayed that the court applies the precautionary principle of the environmental law which was to stop the activities of the project pending the full hearing of the suit. That the burden to prove that the activities at the campsite were not harmful was on the proponent of the project not the claimant.

29. Lastly it was their submission that the balance of convenience tilted in favour of the Plaintiffs under Article 42 and Section 3 of the Environmental Management and Co-ordination Act as they had demonstrated the kind of danger they had been exposed to.

Respondent submission

30. In opposing the application, the Respondents relied on their replying affidavit sworn on 14th May 2019 and the supplementary affidavit sworn on the 4th July 2019 to submit that they were issued with a tender for upgrading of the subject road stated in the pleadings and they had to set up camp from where the operations would be done.

31.  That the setting up of the camp was subjected to all the statutory provisions which included an environmental impact assessment where a lead expert known as Peman Consultants Ltd, was identified for the said assessment. That the specific officer who conducted the assessment was Hellen Githuma.

32.  That a report was subsequently issued approving the setting up of the camp. That among the areas to be studied was the potential positive and negative environmental impact that the setting up of the camp would have caused.

33. That for any negative impact, the mitigation measures were ascertained and at the conclusion of the report, it was confirmed that the project activities would not have a negative impact on the environment wherein the 1st Respondent commenced the project at the subject site.

34. It was their submission that public participation was done prior to the writing of the report and that further approvals and licenses were issued by the County Government of Laikipia which included the certificate of registration of a work place. The said certificates confirmed that the structural set up of the campsite was within the required legal standards. That to date there had never been a challenge or withdrawal of the certificates. That during the conduct of the operation by the 1st Respondent, there had been several environmental measurements studies and audits aimed at ensuring that standards were well maintained so as not to endanger the environment and the community.

35. That a study had been conducted on the air quality and noise level measurements wherein a baseline environmental measurement report was done. That as to the issue of air quality, the levels of particulates (dust) were within the acceptable limits and all that was recommended was the continuous monitoring of the air quality.

36.  That on the issue of noise levels, it had been concluded that the noise levels in the location was within the guideline value for a residential area. That although the Plaintiffs had submitted that the measurement was done for only 15 minutes and therefore should not be relied upon, yet they had not placed any evidence before court to show that the noise level was beyond the threshold limit.

37. It was their submission that where a party alleges that the noise level was detrimental to the environment, it cannot be an issue of the word of mouth but that an empirical data ought to be provided to the court and in this case the only empirical evidence available in this case supported the Defendant’s evidence.

38. That they had attached a gallery of environmental and progress reports as annexure which reports concluded that the project proponent (1st Respondent) have continued to engage on good environmental management practices which basically confirms that all potential environmental hazards had been dealt with and there was no danger to the environment and the Plaintiffs. That the reports had dealt with air quality, fire response, solid waste management and occupational health and safety.

39.  That there was a report specifically on fire safety which confirmed that there was no danger as regards to the electrical installed within the camp and which went against the Applicants’ submission that here was a high voltage transformer that produced large sparks. The said submissions remained just allegations.

40. That the transformer was a property of Kenya Power and lighting and not the 1st Respondent. The license and certificate to process and use a nuclear density gauge unit which was issued under the Radiation Protection Act, Cap 243 Laws of Kenya was proof enough that the 1st Respondent had taken all the required measures to ensure that the use of the nuclear unit did not pose any radiation danger to the community workers and environment.

41.  That the fact that the walls of the campsite had a radiation warning was just but a precautionary step which was a requirement of the law, but it did not mean that the people were exposed to harmful radiation.

42. It was their submission that for the Applicants’ application to be granted, a prima facie case with a probability of success ought to have been established. That the Applicants had not established that they had a genuine or arguable case, to enable the court to conclude that their rights had been infringed, by the material placed before court.

43. That the application was based on mere words and statements by the Applicants with no shred of evidence that there was for example harmful smoke being emitted by the boiler machine. The Defendants on the other hand had proved that the air quality was within acceptable limits.

44.  That on the issue of deafening noises produced by the machines, there was still no tangible evidence provided by the Plaintiff/Applicant to support that allegation.

45. On the issue of dust expelled from the campsite, they had demonstrated that the air quality was within the limits. No material had been placed before court to show that the operations of the campsite were degrading to the environment.

46. The Defendant proceeded to submit that the photographs relied upon by the Plaintiffs did not show any damage to the environment and their connection to the environment degradation was Counsel’s own imagination.

47. That further, the medical reports relied upon in the supporting affidavit did not link the medical conditions of the Applicants to any operation of the 1st Respondents. They are not supported by the treatment notes which would have indicated the history of the specific patients and therefore the conditions disclosed thereon could have as well been caused within other unrelated factors. That the medical conditions do not exclude other factors that would have caused the patients to suffer.

48.  That the printout that was annexed to the Applicants’ affidavit on a mobile text communication should be disregarded as it did not meet the threshold of an electronic evidence. It was not certified by the mobile component and was not an admission that the rights of the Applicants had been infringed hence the printout could not form a basis that a prima facie case had been established with a probability of success.

49. The Defendants submitted that in the entire application and submission, there had been nowhere where it had been suggested that the 1st Respondent in undertaking this project, has breached any provision of the land save for where it was submitted that the Plaintiffs were not served with a questionnaire. That views had been taken from people in the neighborhood and there was no requirement that each and every individual had to be questioned for the exercise to be deemed as public participation.

50.  That it was not the province of the court at this stage to cancel a license that was issued by National Environmental Management Authority (NEMA) before it is challenged at the National Environmental Tribunal. That failure by the Applicant to prove the areas that have been degraded and what area of the law had been breached meant that a prima facie case had not been established.

51.  The Court was referred to the following authorities;

i.   Erick Ochieng vs Frederick Aila Onyango (2018) eKLR.

ii.  Deepak Harakch & Another vs Anmol Ltd & 4 Others (2018) eKLR.

iii. Diani Road Developers Ltd & 10 Others vs Jerusha Kerubo Nyamweya & 4 Others (2015) eKLR.

iv. Aggrey Ogutu vs Daniel Kamau Mwangi, County Government of Kajiado & Another [2016] eKLR

v.  Bart Kibati & 2 Others vs Harrow Investment Ltd and Another (2014) eKLR.

vi. Nixon Azaria vs Rose Weke & 2 Others (2014) eKLR.

52.  That the report of the public officer did not state what kind of studies he can carried out, what measurement of the dust there was, leaving it to be mere speculations and therefore this report should not be used to determine the matter.

53.  The Defendant distinguished the decisions relied upon by the Applicant to the effect that in the said authorities, the injunctions had been issued because no licenses and approvals had been issued unlike the present case, where all the proper procedures were followed. That the presumption was therefor that the activity was given a clean bill of health.

54.  The Defendants submitted that the implication of the orders sought by the Applicants was that if they were granted, the message that the court would be sending is that even if all the requirements are followed, they can be stopped at a mere allegation by an Applicant which was not the intention of the legislature; to have projects of such magnitudes to be stopped. This in turn would lead to lose of investor projects and public private partnerships. That unless there was proper tangible evidence placed before court, it would be improper to stop the project. That from the material placed before court, a prima facie case had not been established to warrant the sought for orders of injunction.

55.  Counsel holding brief for Counsel for the 2nd Defendant submitted that they did not have any submissions to tender in respect to the said application.

Analyses and Determination.

56. The issue for determination by this court is whether the Applicant has established a prima facie case to enable the court grant the interlocutory injunction sought. The principles to be considered by this court in determining whether or not to grant the interlocutory injunction sought are well settled in the Giella vs Cassman Brown [1973] EA 358 where the court held that:

The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an Applicants must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the Applicants might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. (E.A. Industries v. Trufoods, [1972] E.A. 420).”

57.  Has the Applicant made out a prima facie case with a probability of success? In the case of MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS (2003) KLR 125, a prima facie case was described as follows:

“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

58.  Looking at the facts of this case, the court has been moved under a certificate of urgency, by the Applicant, to issue temporary injunctive orders against the Respondents. At this stage, the Court is only required to determine whether the Applicant is deserving of the Orders sought. The Court is not required to determine the merit of the case.

59. The first issue that I need to consider for determination is whether the Applicant has established a prima facie case as is required in the Giella vs. Cassman Brown herein supra.

60. I have considered all the material facts placed before me. The Applicants herein submitted that they were beneficiaries of the estate which comprises title No Laikipia/Lariak/50. That on or about the 18th September 2017, the Respondents herein set up a project campsite known as 269 Project Campsite ongoing maintenance of Marigat Muchongai- Karandi, Ol Ng’arua Muhotetu-JNCT C 77 and Muhotetu –Sipili Roads Karandi adjacent to the Applicants’ land without engaging them. That the said campsite comprised of heavy duty machines which included a tar mixer and Bitumen Boiler that had been emitting harmful smoke which the Applicants and their children are forced to inhale. Further, that the campsite had been producing deafening noise as it is situate 4 meters away for the Applicants’ homestead. It was also the Applicants’ submission that there was a high voltage transformer mounted next to their house which produced risky and loud sparks particularly when birds perched thereon, which transformer was risky to the Applicants and their children. That the heavy machine in the current site also produced a lot of dust that was deposited on the applicants houses.

61. That since wall separating their homes and the project was clearly marked with the words RADIATION AREA and HARMFUL ELEMENTS, this was a clear indication that the Respondents’ activities were hazardous on the Applicants’ health. That Indeed the Respondents activities had been the cause of the respiratory complications of a Monor, BC whom the doctors advised to seek an alternative residence.

62. The Applicant further submitted that whereas the 1st Respondent had undertaken to move them away from the campsite at its cost yet they had renegaded on their promise thus exposing them to health hazards.

63. It was thus their prayer that the Respondents herein be injuncted from operating from 269 Project Campsite ongoing maintenance of Marigat Muchongai- Karandi, Ol Ng’arua Muhotetu-JNCT C 77 and Muhotetu –Sipili Roads Karandi pending the hearing and determination of the suit.

64.  The Defendant’s submission on the other hand was that the Applicant’s application was based on allegations that had not been substantiated by expert evidence, reports and research. That indeed the project was undertaken by the Respondents after they had obtained all the necessary and relevant licenses from the relevant government bodies which licenses also included the well-researched environmental impact reports. That nowhere had the Applicants alleged that the 1st Respondent in undertaking this project, has breached any provision of the land save for where the Plaintiffs had not been served with a questionnaire despite there having been public participation.

65.  From the above summary of the matter herein, the issue that arises for determination thereof is whether the Plaintiff is entitled to the interlocutory injunction sought?

66. On the first condition as to whether the Applicant has proved that they have a prima facie case, Section 3 of the Environmental Management and Co-ordination Act, (EMCA), Cap 387 Laws of Kenya stipulates as follows;

(1) Every person in Kenya is entitled to a clean and healthy environment 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.

(3) If a person alleges that the entitlement conferred under subsection (1) has been, is being or is likely to be contravened in relation to him, then without prejudiceto any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress and the High 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 ofbeneficial  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 thatthe 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 High 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 ornatural 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 ofenvironmental 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.

68. While Section 58 of the EMCA states that

(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, shallbefore 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 a project shall undertake or cause to be undertakenat his own expense an environmental impact assessment study and prepare a report thereof where the Authority, being satisfied, after studying the project report submitted under subsection (1), that the intended project may or is likely to have or will have a significant impact on the environment, so directs.

(3) The environmental impact assessment study report prepare under thissubsection shall be submitted to the Authority in the prescribed form, giving the prescribed information and shall be accompanied by the prescribed fee

(4) The Minister may, on the advice of the Authority given after consultation with the relevant lead agencies, amend the Second Schedule to this Act by notice in the Gazette.

(5) Environmental impact assessment studies and reports required under this Act shall be conducted or prepared respectively by individual experts or a firm ofexperts authorised in that behalf by the Authority. The Authority shall maintain a register of all individual experts or firms of all experts duly authorized by it to conduct or prepare environmental impact assessment studies and reports respectively. The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee.

(6) The Director-General may, in consultation with the Standards Enforcementand Review Committee, approve any application by an expert wishing to be authorised to undertake environmental impact assessment. Such application shall be made in the prescribed manner and accompanied by any fees that may be required.

(7) Environmental impact assessment shall be conducted in accordance with the environmental impact assessment regulations, guidelines and proceduresissued under this Act.

8.  The Director-General shall respond to the applications for environmental impact assessment license within three months.

9.  Any person who upon submitting his application does not receive any communication from the Director-General within the period stipulated under subsection (8) may start his undertaking.

69. Section 59 of EMCA states as follows;

(1) Upon receipt of an environmental impact assessment study report from any proponent under section 58(2), the Authority shall cause to be published for two successive weeks in the Gazette and in a newspaper circulating in the area or proposed area of the project a notice which shall state—

(a) a summary description of the project;

(b) the place where the project is to be carried out;

(c) the place where the environmental impact assessment study, evaluation or review report may be inspected; and

(d) a time limit of not exceeding sixty days for the submission of oral or written comments environmental impact assessment study, evaluation or review report.

(2) The Authority may, on application by any person extend the period stipulated in sub-paragraph (d) so as to afford reasonable opportunity for such person to submit oral or written comments on the environmental impact assessment report.

70. And section 60 of the EMCA stipulates as follows;

A lead agency shall, upon the written request of the Director-General, submit written comments on an environmental impact assessment study, evaluation and review report within thirty days from the date of the written request.

71.  In the case of Nguruman Ltd vs Jan Bonde Nielsen & Others C.A civil Appeal No. 77 of 2012, the Court of Appeal while addressing the issue of a prima facie case stated thus:

“The applicant need not establish title. It is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance of, or as otherwise put, on a preponderance of probabilities. This means no more than the Court takes the view that on the face of it, the applicant’s case is more likely than not to ultimately succeed”.

The Court then went to state as follows:

“We reiterate that in considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the case closely. All that the Court is to see is that on the face of it, the person applying for an injunction has a right which has been or is threatened with violation”.

72.  A close look at the Respondent’s annexures and in consideration of their submission, and further, in pursuant of the fact that at this juncture the court is not obliged to examine the merits of the case closely but to consider whether the material presented is enough to conclude that there exists a right which has been apparently infringed by the Respondents, I find that there is sufficient evidence herein produced to show that the project herein had been cleared by the relevant authority, including National Environment Management Authority (NEMA), there was an Environment Impact Assessment done where there was a lead agency expert involved who published their report to the effect that the project was environmental friendly in all aspects. Further there was also public participation although the Plaintiff were not parties. Having found as above , I find that the Plaintiff as not established a prima facie case and in terms of Joseph Wambua Mulusya –vs- David Kitu & Another (2014) eKLR where the court observed as follows:-

“The sequence of steps to be followed in the enquiry into whether to grant an interlocutory injunction is sequential so that the second condition can only be addressed if the first one is satisfied”.

73.  Consequently, I dismiss the application dated 10th April 2019, with costs to the Respondents. The interim orders are herein vacated.

74. Parties to comply with the provisions of Order 11 of the Civil Procedure Rules within the next 21 days for the hearing of the main suit herein.

Dated and delivered at Nyahururu this 29th day of October 2019.

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE