Tiara Villas Management Ltd, Cottersbrook Villas 1Management Limited, Mugumo Heights Management Company Limited, Mary Wanja Ibutu & Sharadchandra Manharlal Kalidas Dave v Joe Mutambu, Solomon Gichina, Nairobi City County Government & National Environment Management Authority (NEMA) [2018] KEELC 2330 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO 255  OF 2018

TIARA VILLAS MANAGEMENT LTD..............1ST PLAINTIFF

COTTERSBROOK VILLAS 1

MANAGEMENT LIMITED...............................2ND PLAINTIFF

MUGUMO HEIGHTS MANAGEMENT

COMPANY  LIMITED........................................3RD PLAINTIFF

MARY WANJA IBUTU.......................................4TH PLAINTIFF

SHARADCHANDRA MANHARLAL

KALIDAS DAVE.................................................5TH  PLAINTIFF

=VERSUS=

HON. JOE MUTAMBU......................................1ST DEFENDANT

SOLOMON GICHINA......................................2ND DEFENDANT

NAIROBI CITY COUNTY GOVERNMENT..3RD DEFENDANT

NATIONAL ENVIRONMENT

MANAGEMENT AUTHORITY (NEMA)........4TH DEFENDANT

RULING

1. On 31/5/2018, the plaintiffs brought a Notice of Motion dated 30/5/2018 seeking an interim injunctive order restraining the 1st and 2nd defendants against continuing to undertake further developments, construction and/or other works on Land Reference Number 3734/81 located along Mugumo Road, Lavington, Nairobi (the suit Property) pending the hearing and determination of this suit.  The application is supported by an affidavit dated 30/5/2018 and supplementary affidavit dated 28/6/2018, both sworn by Anne Wanjugu Kinyanjui.  The 1st defendant opposed the application through his replying affidavit sworn on 13/6/2018 and a further affidavit sworn on 27/6/2018.  The 2nd defendant similarly opposed the application through his replying affidavit sworn on 18/6/2018. The 3rd defendant did not respond to the application.  The 4th defendant responded to the application through a replying affidavit sworn by its Senior Compliance and Environment Officer, Nairobi County Field Office, Mr Samuel Ngaanga.  That application is the subject of this ruling.

2. The plaintiff’s case is that the 1st, 2nd and 3rd plaintiffs are property management companies in which reversionary interests in various properties in the neighbourhood vests and they are charged with the management of their respective gated properties in the neighbourhood within which the suit property is located.  The 4th and 5th defendants are proprietors of properties and residents in the same neighbourhood.  The 1st defendant is a tenant of the 2nd defendant in respect of the suit property.  The plaintiffs contend that they are entitled to a clean and healthy environment and they have a corresponding duty to safeguard and enhance the environment.

3. The plaintiffs further contend that the neighbourhood is a residential area and their properties are adjacent to and/or adjoining the suit property, and by virtue of the proximity of the suit property, they are directly affected by any developments or works being undertaken on the suit property.  In April 2018, they noticed that the 1st defendant was undertaking building works/construction of a car park, canopies, cabro paved parking, together with other works on the suit property which is directly opposite the 1st plaintiff’s property, Land Reference Number 3734/1361.  They contend that the 1st and 2nd defendants have purported to change the user of the suit property from residential to commercial without any due process and or approval.  They further contend that the subject development is being undertaken without public participation and without approval from the physical planning regulator under the Physical Planning Act and the environmental impact assessment licence (the EIA Licence) under the National Environmental Co-ordination and Management Act (the EMCA).

4. The plaintiffs add that the 1st and 2nd defendants’ activities constitute a blatant violation of the statutes and the Constitution and an infringement on their right to a clean and healthy environment enshrined under Article 42 of the Constitution.  They urge the court to grant an interlocutory restraining order pending the hearing and determination of the suit.

5. The case of the 1st and 2nd defendants is that the 1st defendant is a lawful lessee of the 2nd defendant.  They contend that due process was followed in the procurement of change of user and all conditions were met.  They add that the plaintiffs are not immediate neighbours and that the suit property is surrounded by other properties including shell petrol station and a night club at Lavington Green Mall. They aver that the subject project is a car wash and tyre  centre that is complete and operational and is not a nuisance to anyone.  They further contend that the prayer sought in the application has been overtaken by events as the project has been implemented fully.

6. The 1st and 2nd defendants further contend that the project has an approved environmental impact assessment report administered by the National Environment Management Authority and claims of air pollution are blatant and malicious lies meant to destroy the business.  They contend that the application does not disclose a prima facie case.

7.  The 4th defendant’s case is that it is the regulatory body vested with statutory mandate to exercise general supervision and cor-ordination over all matters relating to the environment and it is the principal instrument of the Government in the implementation of all policies relating to the environment. It adds that in or about 28/5/2018, it received a complaint from the plaintiffs against the 1st defendant over the subject project.  It proceeded to inspect the suit property and compiled a report.

8. In summary, the 4th defendant states that the proposed project entailed renovation works on an existing building to put up offices and construction of temporary structures for a car wash, tyre centre and vehicle service and maintenance.  The site is located along Mugumo Road in Lavington Area on a predominantly residential area with a few commercial establishments along the road.  The project is commercial in nature and is surrounded by several residential houses ranging from ground to one floor town houses along and across the road.  The construction of a silo like construction alleged by the applicants was not seen at the site and the site is curbed in cabro in line with a car wash model.  The development is among categories of developments that are supposed to undertake environmental impact assessment and obtain an environmental impact assessment licence before commencement of works as required under the EMCA.  The project commenced without an EIA licence and that act constituted a criminal offence under the EMCA.  It issued an improvement notice dated 19/6/2008 stopping any further construction works until the project is licenced by NEMA.  At the time of swearing the replying affidavit, it had not received any application for an EIA licence in respect of the project.  It contends that it has duly discharged its statutory mandate in relation to the subject project.

9. The application was canvassed through oral submissions in open court on 28/6/2018.  I have considered the tenor and import of the application, the parties’ respective affidavits and rival submissions, the relevant legal and constitutional framework, and the guiding principles on the broad subject of interim injunctive relief.  The single issue falling for determination in this application is whether the application meets the criteria for grant of an interlocutory injunctive relief.  This criteria was laid down in Giella v Cassman Brown (1973) EA 358. In summary, the applicants were required to demonstrate a prima facie case with a probability of success.  Secondly, they were required to demonstrate that they stand to suffer irreparable injury that cannot be indemnified through an award of damages hence the necessity for the injunctive order.  Lastly, were the court to be in doubt, the application would be determined on a balance of convenience.

10. At this point, the court is not required to make definitive or conclusive findings on any of the questions that fall for determination because that jurisdiction is reserved for the trial court.  All that the court is required to do is to examine the materials placed before it and pronounce itself on whether those materials disclose a prima facie case with a probability of success.

11. The 1st and 2nd defendants have contended that all necessary approvals were obtained and that due process was followed in the procurement of change of user.  The applicants contend that requisite approvals were not obtained, due process has not been followed, and the project is being implemented in blatant violation of the provisions of the EMCA and the Physical Planning Act.

12. The EMCA vests in NEMA the mandate of environmental governance in Kenya.  The Act and the regulations made thereunder set out categories of developments that must be subjected to environmental audit through the preparation of an environmental impact assessment report which would, where necessary, contain mitigation measures to be put in place by the project proponent, to safeguard the environment and satisfy the requirements for sustainable development.  The requirements of   the EMCA are mandatory and are required to be adhered to by all project proponents.

13. Similarly, the Physical Planning Act contains a mandatory framework on how change of user is to be procured and how building/development plans are to be approved prior to the commencement of construction works.  Commencement of construction works without requisite approvals is prohibited.

14. The materials presented to the court disclose a number of disturbing revelations.  Firstly, NEMA is categorical that the subject project is subject to environmental audit and EIA licensing under the EMCA but the project proponent has ignored the mandatory requirements of the law.  Owing to the illegality, NEMA issued a Statutory Improvement Notice, legally stopping the project. Consequently, the project remains suspended until NEMA approval is obtained.

15. The second disturbing revelation is contained in the 1st defendant’s further affidavit sworn on 27/6/2018.  Annexed to the affidavit as Annexure JM1 is a letter of temporary change of user from residential to car wash and tyre centre dated 20/6/2018.  The present suit was brought on 31/5/2018 and on 14/6/2018 the parties appeared in court.  On that day, the 1st defendant objected to grant of a conservatory order contending that it would disrupt the business of the 1st defendant.  What emerges from the above annexure is the fact that the project proponent implemented change of user without prior approval.  Upon receipt of court papers, he went to look for a temporary change of user, which was eventually granted on 20/6/2018.  At this point, it is not clear whether the law envisages a temporary change of user which allows the subject business in a residential area.

16. In my view, it is apparent from the above two aspects of the present dispute that a prima facie case of probable violation of the provisions of the EMCA and the Physical Planning Act by the 1st and 2nd defendants has been disclosed.  It is also apparent that the subject development was stopped by NEMA and the Statutory Notice stopping it has not been lifted by NEMA.  In light of the foregoing, the court is satisfied that the applicants have established a prima facie case warranting grant of an interlocutory order. The contention that the project has been completed cannot hold because completion of an illegality cannot be used as a shield against a plea for a restraining order against perpetuation of the illegality.

17. The cause of action in relates to violation of the mandatory provisions of the legal instruments that were legislated by Parliament to protect the environment. It also relates to alleged probable violation of the plaintiffs’ right to a clean and healthy environment.   In my view, the resultant damage to the environment and injury to the plaintiff may not be adequately indemnified through an award of damages.  I therefore do not have any doubt on either of the two limbs of the Giella v Cassman Brown (1973) EA 358principle.

18. In light of the foregoing, the court is satisfied that the plaintiffs/applicants have satisfied the criteria for grant of an interlocutory injunctive relief.  Consequently, the plaintiffs’ Notice of Motion dated 30/5/2018 is allowed in terms of prayer 3. The applicants shall have costs of the application.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 18TH DAY OF JULY 2018.

B  M EBOSO

JUDGE

In the presence of:-

Mr Mwaura holding brief for Mr Mbuvi  Advocate for the 1st defendant

Mr Mwaura Advocate for the 2nd defendants

Ms Halima Abdi - Court Clerk