Pattni & 8 others v National Environment Management Authority & another [2024] KEELC 286 (KLR) | Environmental Impact Assessment | Esheria

Pattni & 8 others v National Environment Management Authority & another [2024] KEELC 286 (KLR)

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Pattni & 8 others v National Environment Management Authority & another (Environment and Land Appeal E087 of 2022) [2024] KEELC 286 (KLR) (25 January 2024) (Judgment)

Neutral citation: [2024] KEELC 286 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal E087 of 2022

OA Angote, J

January 25, 2024

Between

Karan Pattni

1st Appellant

Tanvi Ramesh Shah

2nd Appellant

Kavita Achal

3rd Appellant

Dhavani Patel

4th Appellant

Ketan Shah

5th Appellant

Nishita Pattni

6th Appellant

Sankesh Dedhia

7th Appellant

Alka Ghandi

8th Appellant

Anisha Shah

9th Appellant

and

National Environment Management Authority

1st Respondent

Vem Investments Limited

2nd Respondent

Judgment

Background 1. Vide an Appeal dated 2nd August, 2021, the Appellants moved the National Environment Tribunal (NET) aggrieved by 1st Respondent’s decision to issue the 2nd Respondent with an Environmental Impact Assessment License No NEMA/EIA/PSL/11653 dated the 2nd June, 2021 for the proposed construction of a seventeen (17) level residential building comprising of sixty-four(64) residential units with parking lots on the ground and two(2) basements floors.

2. The intended development is located on a parcel of land known as L.R No 1870/11/280, off General Mathenge Road, in Westlands Area, Westlands Sub-County, Nairobi County (hereinafter the suit property).

3. The Appellants’ objection to the issuance of the EIA License as set out in the Memorandum of Appeal was on the grounds that, inter-alia, they were not, as persons likely to be directly affected by the intended developments involved in the Environmental Impact Assessment contrary to Section 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 and that they did not, as residents/property owners within the neighbourhood of the plot give their approval for the same.

4. It is the Appellants’ case that the intended development did not comply with the provisions of the EMCA, 1999 and the Regulations thereto; that the intended development, being on riparian land poses a grave risk of irreparable negative impact on the riparian habitat and that the proposed mitigation measures as set out in the project report are insufficient.

5. The Appellants also contended that whereas the site plans in the Environmental Impact Assessment project report had the riparian land marked thereon, there was no indication of the highest recorded water level, as a reference point for purposes of establishing the said riparian land; that the road serving the subject plot was insufficient to accommodate the anticipated vehicular traffic and that the intended development will negatively impact the visual quality and aesthetics of the neighbourhood of the plot.

6. In response, the 1st Respondent stated that pursuant to the law, the 2nd Respondent informed it of its intention to construct a 17 storey residential building; that the aforesaid is, pursuant to Legal Notice No 150 of 2016 on Environmental(Impact Assessment and Audit)(Amendment) Regulations, 2016 classified as a medium risk project; that it duly received from the 2nd Respondent copies of the Environmental Impact Assessment Project Report and that it thereafter proceeded to contact the relevant lead agencies/committees in accordance with EMCA requesting for their views/comments to assist the 1st Respondent make an informed decision in reviewing the EIA project report.

7. It was submitted by the 1st Respondent that pursuant to the EIA project report and following a site visit by NEMA County Environment Officers, the project was certified as not being out of character with the surrounding as the proponents had also sought and obtained approval by the Nairobi Metropolitan Services, City Planning Committee for the change of user from single to multiple dwelling units.

8. It was the 1st Respondent’s case that the 2nd Respondent had equally received relevant approvals from the relevant lead agencies and that in view of the foregoing and there being no response from the lead agencies, the 1st Respondent was satisfied that the project did not pose any risk to warrant the denial of the EIA License.

9. The 1st Respondent maintained that they followed all relevant procedures and met all statutory requirements including the aspect of public participation; that the development is not on riparian land and that in any event, sufficient evidence of mitigation measures was provided by the 2nd Respondent.

10. The 2nd Respondent vide their response indicated that the project was duly identified as a medium risk development and the project report carried out in accordance with the Environment (Impact Assessment and Audit) Regulations 2003 and that they were not required to carry out public participation as contemplated under Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 as the development was a medium risk development.

11. It was averred by the 2nd Respondent that the project report was carried out in accordance with part II of the Environment (Impact Assessment and Audit) Regulations, 2003 and that the 1st Respondent did not require it to carry out an Environmental Impact Assessment Study.

12. The 2nd Respondent deponed that the Appellants were given questionnaires to give their respective views on the intended development and cannot purport to have been unaware and un-consulted on the same; that the plot does not constitute riparian land and that the Water Resources Authority, pursuant to the Water Quality Regulations (2006) conducted a site visit and thereafter prepared a water pegging report which took into consideration the highest water mark.

13. It was the 2nd Respondent’s case that the Appellants are estopped from raising objections with respect to vehicular traffic having failed to complete the Environmental Impact Assessment Questionnaires for consultation and public participation.

14. The matter proceeded by way of viva voce evidence before the Tribunal. Parties also filed written submissions in support of their respective cases. In its determination, the Tribunal set out three issues for consideration being; whether the EIA License No NEMA/EIA/PSL/11653 was procedurally issued; whether the proposed development poses an unacceptable risk to the environment without adequate mitigation measures; and whether there was adequate and lawful participation.

15. It was the Tribunal’s determination that the 1st Respondent met the procedural requirements of Regulations 7, 9 and 10 of the Environment (Impact Assessment and Audit) Regulations, 2003 in its issuance of the EIA License No NEMA/EIA/PSL/11653. It was noted in this regard that the development was classified as a low to medium risk project not necessitating a full study report and the attendant wide public participation.

16. The Tribunal further held that the Appellants did not discharge the burden of proving that the proposed development posed unacceptable risk to the environment for which the mitigation measures provided in the project report were insufficient. The Tribunal noted that they were satisfied that the 1st Respondent properly considered the riparian question and arrived at the correct procedure both in substance and procedure.

17. Further, the Tribunal held that the public participation undertaken through the questionnaires was sufficient in the circumstances of the case considering the prevailing Covid situation and that as a low to medium risk project, the Appellants contentions on the wide publication and communication of the project were unmerited. Ultimately, the Tribunal found no merit in the Appeal dismissing it with no orders as to costs and lifting all orders barring the implementation of the proposed project, the subject of EIA License No NEMA/EIA/PSL/11653.

18. The Appellant being dissatisfied with the decision aforestated has appealed to this Court on the grounds that;i.The Tribunal misdirected itself in law and fact in finding that the 1st Respondent had lawfully and procedurally issued the 2nd Respondent with an Environment Impact Assessment License No NEMA/EIA/PSL/11653. ii.The Tribunal misdirected itself in law and in fact in finding that the proposed project did not require a full study report contrary to the express provisions of Section 58 of the Environmental Management and Co-ordination Act No 8 of 1999 and the 2nd Schedule thereto as amended by Section 43 of the Environmental Management and Co-ordination(Amendment) Act of 2015. iii.That the Tribunal erred in law and in fact in coming to a finding that the proposed project on Land Reference Number 1870/11/280 did not encroach onto riparian land despite clear and cogent evidence to the contrary which was placed before the Tribunal.iv.That the Tribunal erred and misdirected itself in law and in fact in holding the 2nd Respondent sufficiently undertook public participation through the questionnaires presented before it.v.The Tribunal erred in characterizing the issues raised by the Appellant as speculative contrary to pleadings and evidence.vi.The Tribunal erred in holding that the Appellants did not meet the standard of proof required on matters raised by the Appellant.

19. The Appellant therefore seeks that;a.The Appeal herein be allowed and the Judgement and Decree of the National Environment Tribunal be set aside and be substituted with an order revoking the Environment Impact Assessment License No NEMA/EIA/PSL/11653 issued by the 1st Respondent to the 2nd Respondent.b.That the Appellants be awarded the costs of this Appeal and those in respect of the proceedings before the Tribunal.c.That alternatively, the Honourable Court to give such orders as it may deem fit and just in the circumstances of this case.

Submissions 20. The Appellant, through Counsel, filed submissions on 10th August, 2023. Counsel submitted that the Tribunal did not take cognizance of the fact that the 2nd Respondent’s proposed building encroached onto riparian land, in spite of clear evidence thereof and that Section 6 (c) of the EMCA (Water Quality) Regulations, 2006, prohibits the cultivation or undertaking of any development activity within the full width of a river or stream to a minimum 6 meters and a maximum 30 meters on either side based on the highest recorded flood level.

21. It was submitted that whereas Section 7 of the Regulations, 2003 provides that the District Environment Committee shall be responsible for coordinating, monitoring and advising on all aspects of wetland resource management within the District, no evidence was adduced showing that the aforesaid committee was consulted or its views sought.

22. Counsel submitted that in view of the foregoing, it is apparent that the 1st Respondent breached its duty to protect the environment as per Section 9(1) of EMCA and that in the case of Ken Kasinga vs Daniel Kiplagat Kirui & 5 others, Nakuru ELC Constitutional Petition No.50 of 2013, the court held that where a procedure for the protection of the environment provided in law is not followed, an assumption ought to be drawn that the project is one that violates the right to a clean and healthy environment, or is at the very least, has potential to harm the environment.

23. It was submitted that despite evidence to the contrary, the Tribunal proceeded to hold that the intended project did not encroach onto riparian land; that the Water Resources Authority set the riparian setback at 17 Meters, an additional 5Meters to what the 2nd Respondent had indicated in the plans forming part of its EIA Project Report and that this was affirmed by the 1st Respondent’s witness on cross-examination, meaning that a large part of the building ended up being built on riparian land contrary to Section 6 (c) of the Environmental Management and Co-ordination (Water Quality) Regulations, 2006.

24. According to Counsel, despite the glaring irregularities aforesaid, the Tribunal still went on to uphold the EIA License issued by the 1st Respondent to the 2nd Respondent and that contrary to the Tribunal’s assertions, the issues raised by the Appellants were not speculative and were clearly demonstrated meeting the requisite standard of proof being on a balance of probabilities.

25. Counsel submitted that construction of buildings on a riparian reserve would have a deleterious effect on the flow of the river with serious consequences for the ecology thereon and that the Court should apply the prevention principle to prevent activities that may cause damage or harm to the riparian land, the river and the surrounding ecosystem.

26. The 1st Respondent did not file submissions.

27. The 2nd Respondent’s counsel submitted that at the Tribunal, the Appellants challenged the procedure for the issuance of the EIA License solely on the basis that Sections 58 of EMCA and Regulation 17 of the Environment (Impact Assessment and Audit) Regulations, 2003 were not complied.

28. It was submitted by counsel for the 2nd Respondent that the challenge on procedure on the basis of lack of evidence of consultation by the District Environment Committee pursuant to Section 7 of the Environmental Management and Co-ordination(Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations, 2009 is a new ground and should not be admitted and that in the event it is, it should be noted that the District Environment Committee does not exist having been replaced with the County Environment Committee as per Section 2 and 29 of the EMCA.

29. According to Counsel, the question of whether the Tribunal erred in finding that the proposed project did not encroach on riparian land equally constitutes a new issue not raised before the Tribunal, the question in that respect being the sufficiency of the proposed mitigation measures in the EIA report and that nonetheless, the Appellants are unable at this stage to affirm this allegation.

30. Counsel submitted that the construction is ongoing in full adherence to the license conditions and that the Appellants are approbating and reprobating which, according to the holding in Republic vs Institute of Certified Public Secretaries of Kenya, Ex-parte Mundia Njeru[2010]eKLR is unacceptable conduct.

31. It was submitted that whereas on one hand the Appellants assert that the riparian area was not properly considered, they also claim that going by the proposed building plans, the construction of the intended development would be within the riparian area; that in this instance, the 12 metre set back proposed in the drawings was in compliance with Regulation 6 (c) of the Water Quality Regulations, 2006 and that nonetheless, the proposed drawings are always done prior to the EIA report and License and can be changed to ensure compliance with statutory approvals and conditions.

32. In conclusion, Counsel for the 2nd Respondent submitted that the allegations of violations must be supported by tangible evidence; that it being admitted that no construction had commenced at the time the Appeal before the NET was heard and determined, the allegation of non-compliance with condition 4 of the License was speculative and that where a party undertakes a project in contravention of any of the terms of the EIA License, the project proponents can be compelled to take remedial measures and/or enforcement action can be undertaken.

Analysis and Determination 33. The present Appeal arises from the judgment of the National Environment Tribunal rendered in exercise of its jurisdiction under Section 129 of the Environmental Management and Co-ordination Act [the EMCA]. That jurisdiction is restricted to hearing and determining appeals against decisions made by the National Environment Management Authority [NEMA].

34. The Appellate jurisdiction of this court in relation to this Appeal is defined under Article 162 (2) (b) of the Constitution as read together with Section 13(4) of the Environment and Land Court Act and Section 130 of the EMCA.

35. As the first Appellate Court, this Court is alive to the fact that in determining whether or not the Tribunal was justified in reaching the decision that it did, it is obligated and indeed under a duty to re-evaluate the evidence and materials that was adduced before the Tribunal. The Court is not bound by the findings of fact and law made by the Tribunal and may, on re-evaluation, reach its own conclusion and findings. This principle was aptly enunciated in the case of Selle & Another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123 where the Court of Appeal stated thus;“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen or heard the witnesses and should make due allowance in this respect.”

36. This position was recently re-affirmed by the Court of Appeal in the case of Peter M. Kariuki vs Attorney General [2014] eKLR, where it was held that:“We have also, as we are duty bound to do as a first appellate Court, reconsider the evidence adduced before the trial Court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence.”

37. As to the circumstances under which this Court can interfere with the decision by the subordinate Court, including a Tribunal, the Court of Appeal in Khalid Salim Abdulsheikh vs Swaleh Omar Said [2019] eKLR expressed itself as follows:“We nevertheless appreciate that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings.”

38. In re-evaluating and re-assessing the evidence as aforesaid, the Court remains mindful of the requisite standard and burden of proof as laid out in Sections 107, 108 and 109 of the Evidence Act to wit;(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.“108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

39. The Court has considered the Memorandum of Appeal and the submissions in support and against the same. It is at the onset noted that whereas the Appellants have laid out six grounds of Appeal, their submissions only address four grounds. No submissions have been made in respect of the alleged contravention of Section 58 of the EMCA and the 2nd Schedule thereto and the question of public participation.

40. Contextually, the Memorandum of Appeal outlines the key points or reasons why an Appeal is being made. It lists the specific grounds upon which the Appellant is challenging a previous decision or judgment. However, merely listing these grounds in the Memorandum is not enough, they must be further developed and argued.

41. If an Appellant fails to address or make arguments on a particular Ground of Appeal in their written or oral submissions, it suggests to the Court that they no longer wish to pursue that specific issue as part of their appeal.

42. It is trite that a case belongs to a party. If the Court were to attempt to discuss issues not addressed by a party as aforesaid, it runs the risk of wading into the litigation by making presumptions as to what was “meant” in the Ground of Appeals. The Court will deem the aforesaid grounds abandoned.

43. Considering the remaining Grounds of Appeal, and the parties’ submissions in support and in opposition thereto, the Court finds that the issues herein can be summarized under two heads;i.Whether the Tribunal misdirected itself in law and fact in finding that the 1st Respondent had lawfully and procedurally issued the 2nd Respondent with an Environment Impact Assessment License No NEMA/EIA/PSL/1165?ii.Whether the Tribunal erred in law and in fact in coming to a finding that the proposed project on Land Reference Number 1870/11/280 did not encroach onto riparian land?

44. The legal regime for the issuance of EIA Licenses is anchored on the Constitution of Kenya, where Article 69 (f) requires the State to establish systems of environmental impact assessment, environmental audit and monitoring of the environment.

45. These systems are set out in EMCA. In particular, Part VI of the EMCA as read with the relevant provisions of the Environmental (Impact Assessment and Audit) Regulations 2003 (“the Regulations”) made thereunder have set out the framework of environmental impact assessment, environmental audit and monitoring of the environment and the procedures and processes involved in securing the same.

46. Specifically, Section 58 of the Environmental Management and Co-ordination Act stipulates the procedure to be followed when applying for an Environmental Impact Assessment license. It provides as follows:58(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 a project shall undertake or cause to be undertaken at 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 prepared under this subsection 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 of experts authorized 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.”

47. Essentially, section 58 of EMCA provides for application for an EIA Licence and provides that every project proponent must not proceed to execute their project without submitting a project report to NEMA in the prescribed form. For purposes of application of an EIA license, a project proponent for a project specified in the Second Schedule must undertake a full environmental Impact Assessment Study and submit to NEMA an EIA Study Report before being issued with an EIA Licence.

48. The nature of the report required by NEMA depends on the categorization of the nature of the risk as set out in the second schedule of the EMCA.

49. Vide their Appeal to the NET, the Appellants’ grievance under this head was that a summary project report had not been submitted to the 1st Respondent contrary to the law. In so arguing, the Appellants conceded to the fact that the intended project was a medium risk project; that there was no evidence of screening of the summary report; that it is evident that the 2nd Respondent ought to have filed an EIA study report as opposed to a project report and in so doing carried out public participation in accordance with Regulation 17 of the EIA (Impact Assessment and Audit) Regulations.

50. In the present Appeal, the Appellants foundation for the claim of un-procedural issuance of the License is two-fold. First, that the intended project encroached onto riparian land and second, that no evidence was provided to show that the District Environment Committee, the body responsible for coordinating, monitoring and advising on all aspects of wetland resource management within the District was consulted as provided for in Regulation 7 of the Environmental Management and Co-ordination (Wetlands, Riverbanks, Lakeshores, and Sea Shore management) Regulations, 2009.

51. It is apparent from the foregoing narration that the Appellants arguments as regards to whether the issuance of the EIA License was procedural has changed. The 2nd Respondent maintains that this is unacceptable as the Appellants are attempting to raise new grounds of Appeal. Considering the pleadings at the Tribunal, to wit, the Notice and Statement of Appeal, witness statements as well as the testimony before the Tribunal, none has any reference to the District Environment Committee.

52. This issue first appears in the Appellants’ submissions of 25th February, 2022 argued under the head of whether the proposed project encroaches onto riparian land. This also forms ground 3 of the Appeal herein.

53. It is trite that submissions are not pleadings, and the question that arises is whether a new issue can be canvassed on appeal. The law on the matter was condensed by Platt JA in Wachira vs Ndanjeru (1987) KLR 252, as follows:“The discretion to allow a point of law to be taken for the first time on appeal will not be exercise unless full justice can be done between the parties. It will not usually be allowed when to do so would involve disputed facts which were not investigated or tested at the trial. Nor will a party be allowed to raise on appeal, a case totally inconsistent with that which he raised in the trial court, even though evidence taken in that court supports the new case. (See Tanganyika Farmers Association Ltd. v Unyamwenzi Development Corporation [1960] EA 620, Overseas Finance Corporation Ltd v. Administrator General (1942) 9 EACA 1). But the court will allow a new question concerning the construction of a document or the legal effect of admitted facts, since no question of evidence arises, and it will usually be regarded as expedient in the interests of justice to do so.”

54. Guided by the foregoing, it is the Court’s opinion that the issue that has been raised in this appeal for the first time not being purely a point of law or an admitted fact cannot be canvassed before this Court. Further, the question not having been before the Tribunal, this Court cannot be heard to fault the Tribunal for “erring” on an issue that was not before it in the first place.

55. As to the question of whether or not the intended project is on riparian land, it is noted that the same was not argued as an aspect of the procedural defect of the EIA License. The Appellants argument before the Tribunal was that the suit property is on riparian land and the intended development posed grave risk of irreparable negative impact for which the EIA measures were insufficient. The Court will therefore discuss this issue under the next head.

56. The only issue that this court will deal with is whether the Tribunal erred in law and in fact in coming to a finding that the proposed project on Land Reference Number 1870/11/280 did not encroach onto riparian land.

57. As aforesaid, the Appellants’ case before the Tribunal was that the intended project was on riparian land and the intended development posed grave risk of irreparable negative impact for which the EIA measures were insufficient. This issue has now changed in character and the Appellants only assert that the Tribunal erred in finding that the proposed project did not encroach on riparian land. The aspect of sufficiency of the mitigation measures does not feature.

58. Nonetheless, both the Respondents and the Tribunal discussed the aspect of whether the intended development encroached on the riparian land. In response to this issue, the Respondents maintained that the intended project was not on riparian land and further, that they took due consideration of the fact that it was near riparian land and provided sufficient mitigation measures to avoid any danger to the environment.

59. The Tribunal found that the claim that the intended project was on riparian land was not proven and that due consideration had been given to the riparian area and sufficient mitigation measures provided.

60. In support of its contention with respect to encroachment, the Appellants relied on the plans attached to the EIA report dated 22nd March, 2021, which shows a 12 metres riparian setback and correspondence from the Water Resources Authority (WRA) dated 31st May, 2021 which pegged the riparian reserve at 17 meters.

61. The Appellants further relied on the testimony of the 1st Respondent’s witness, who conceded on cross-examination that based on the 17 metres riparian allowance by WRA, and the 12 metres setback, then the project exceeded the allowance by 5 metres. It was their contention that this proved that the license was issued on the face of an infraction on the riparian land.

62. The Respondents relied on the WRA letter dated 31st May, 2021 which referenced riparian marking and pegging on plot No L.R No 1870/11/280. The report noted that a riparian reserve of 17 meters from the highest water mark of the river bank was marked and pegged. Under recommendations and conclusions, the report stated as follows:“For purposes of water resources and riparian protection and conservation, you should observe and conserve a riparian reserve of 17 metres from the highest water mark of the river bank that was determined and pegged as provided for in the Water Resources Management Rules, 2007, Rule 116(2) and (4).”

63. Considering the foregoing, it is apparent that the Appellants claims on encroachment were based on what they conceded to be “proposed site plan” attached to the project report. As the name suggest, the plan was merely a proposal and was to be subjected to further input by the 1st Respondent and other relevant agencies. Even in its state as a proposal, the parameters were set out to fit within the law.

64. It is indicated in page 10 of the EIA Project report thus;“The proposed project will respect the riparian zone of the river. The proposed distance from the proposed project is in the range of 12 metres. This distance is ideal and preffered since the minimum distance as per the WARMA specifications is 6 metres. The proponent is advised to engage WRA officials for site pegging before construction of the proposed site.”

65. This position is in pari material with the Water Quality Regulations, 2006 under EMCA which provides under the heading protection of lakes, rivers, streams, springs, wells and other water sources that no person shall;(a)…………….(b)……………(c)cultivate or undertake any development activity within full width of a river or stream to a minimum of six metres and a maximum of thirty metres on either side based on the highest recorded flood level.”

66. The Water Resources Agency (WRA), as a lead agency on all matters concerning water was indeed engaged and conducted a site visit on the proposed project. In its report, it recommended that the project proponent maintains a riparian reserve of 17 metres.

67. It is crucial to note that an EIA License is not an end product in itself and is issued subject to the conditions attached thereto. It is also issued before the project commences. Indeed, relying on the report from WRA, Condition 4 of the License is clear that the project proponents are prohibited from carrying out any development within the riparian reserve distance of 17 metres.

68. It is clear from the foregoing that a claim that the intended project encroached on riparian land, based on the proposed plans vis-a-vis recommendations of WRA was premature. The Court finds no merit in the argument that the Tribunal erred as alleged.

69. Having not found any merit in the Appellants’ claims, the Tribunal cannot be found to have erred in finding that the Appellants did not meet the requisite standard of proof.

70. For those reasons, the Court finds the Appeal to be unmerited. The Appeal is dismissed with costs to be borne by the Appellants.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 25TH DAY OF JANUARY, 2024. O. A. ANGOTE.....................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of;Mr. Abel for AppellantsMr. Shah for 2nd RespondentCourt Assistant - Tracy