REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. NET 016 OF 2018

(Consolidated with NET No. 017/18, NET No. 018/19, NET No. 019/18, NET No. 022/18 and NET No. 023/18)

BETWEEN

JYOTI HARDWARE LIMITED.......................................................................................................APPELLANT

VERSUS

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY.............................................RESPONDENT

JUDGMENT

INTRODUCTION/ BACKGROUND TO THE DISPUTE

1.   By a Notice of Appeal dated 23^rd October 2018 the Appellant instituted this appeal seeking that the Respondent be restrained from enforcing its improvement notice dated 15^th October 2018 issued by the Respondent in relation to the Appellant’s property whatsoever and to stop the Respondent from demolishing any structure on the Appellant’s property.

Vide its Notice of Appeal, the appellant seeks the following reliefs from this Tribunal:-

a)   An order under certificate of urgency that in the first instance this Honourable Tribunal do grant status quo ex parte to stay and stop the Respondent from enforcing its improvement notice in relation to the Appellant’s property whatsoever and to stop the Respondent from demolishing any structure on the Appellant’s property pending hearing and determination of the Appeal filed herein.

b)   A declaration that the improvement notice issued by the Respondent violates the legitimate expectation of the Appellant and is therefore null and void ab initio.

c)   An order setting aside in its entirety the undated improvement notice served in respect of the Appellant’s property and left therein on 15^th October 2018.

d)  An order that the Respondent to pay the Appellant’s cost of appeal.

2.   The Appeal was filed contemporaneously with a Notice of Motion application dated 24^th October 2018 under certificate of urgency. The Appellant seeks the following orders in the application: -

a)  That service of this Application be dispensed with in the first instance and this Honourable Tribunal be pleased to certify this application as urgent.

b)  That this Honourable Tribunal be pleased to issue an injunction/ stay order restraining and/or prohibiting the Respondent jointly and severally by itself and/or through its agents, servants and/or employees or otherwise whatsoever from entering, breaking, demolishing, destroying, evicting, defacing, flattening, removing and/or in any way howsoever interfering with the building, wall, compound and quite enjoyment of the Appellant’s respective properties all situate along Dar-es-Salaam road, Industrial area, Nairobi pending hearing and determination of the application herein.

c)  That this Honourable Tribunal be pleased to issue an injunction/ stay order restraining and/ or prohibiting the Respondent jointly and severally by itself and/or through its agents, servants and/ or employees or otherwise whatsoever from enforcing the improvement notices served to the respective Appellants and/ or in any way howsoever interfering with the building, wall, compound and quite enjoyment of the Appellants’ respective properties all situate along along Dar-es-Salaam road, Industrial area, Nairobi pending hearing and determination of the application herein.

d)  That this Honourable Tribunal be pleased to issue an injunction/ stay order restraining and/ or prohibiting the Respondent jointly and severally by itself and/or through its agents, servants and/ or employees or otherwise whatsoever from entering, breaking, demolishing, destroying, evicting, defacing, flattening, removing and/or in any way howsoever interfering with the building, wall, compound and quiet enjoyment of the Appellants’ respective properties all situate along along Dar-es-Salaam road, Industrial area, Nairobi and/or enforcing the improvement notices served to the respective Appellants pending hearing and determination of the appeal herein.

e)  That this Honourable Tribunal be pleased to grant such other/ further orders or declarations as it deems just herein.

f)   That the costs of this application be provided for.

3.  On 24^th October 2018, the Tribunal upon reading the Notice of Appeal filed by the Appellant dated 23^rd October 2018, in the presence of party representatives issued the following orders: -

a)   THAT NET 016/18 Jyoti Hardware Ltd. –VS- NEMA, NET 017/18 Shakur UL HAQ –vs- NEMA, NET 018/18 Sagoo & Nyotta Ltd. –Vs- NEMA, NET 019/18 Voltage Holdings Ltd –VS- NEMA be and is hereby consolidated subject to Respondents right to substantive apply for variation. NET 016/18 shall be the lead file.

b)   THAT an interim order of stay of the improvement notice be and is hereby issued pending the hearing and determination of the Appellants’ Application subject to order 3 below.

c)   THAT the Appellants’ advocate to file and serve the substantive motion of stay/ injunction relief on 25^th October 2018 before close of business.

d)  THAT the matter will be heard inter-parties on 6^th November 2018.

4.   Pursuant to the orders issued by the Tribunal on 23^rd October 2018 the aforementioned four appeals were consolidated with this appeal. The decision and or order made herein shall apply to the other appeals in NET 017/18 Shakur UL HAQ –vs- NEMA, NET 018/18 Sagoo & Nyotta Ltd. –Vs- NEMA and NET 019/18 Voltage Holdings Ltd –VS- NEMA.

5.   In NET 016/18 the Appellant’s appeal is brought on the following grounds:

a)   The Appellant sought and obtained approval for the construction of the building on its own property known as L.R No. 209/8667 from the then Nairobi City Council and from NEMA;

b)   The Nairobi City Council approved the Appellant’s building plans and issued it with approved plans and the Certificate of Occupation upon completion of the construction which are attached to confirm the Appellant complied with the law;

c)   NEMA granted the Appellant an E.I.A licence which the Appellant fully complied which is with and attached as further evidence that there is no structure that the Appellant constructed on the alleged riparian reserve and that the construction was approved by NEMA;

d)  The arbitrary Improvement Notice issued by the Respondent amounts to a violation of the Appellant’s constitutional right to own property and not to be deprived of any right or interest over the property as enshrined under Article 40 of the Constitution;

e)   The Respondent as a public body failed to adhere to the provisions of Section 4 (3) of the Fair Administrative Actions Act, which makes it mandatory for a person to be given prior and adequate notice of a decision that will affect his right and an opportunity to be heard and to make representations in that regard;

f)    Further the Respondent’s improvement notice is unconscionable, irrational and unreasonable as well as grossly unfair when it requires the removal of the outer wall that is an integral structure supporting the building owned by the Appellant within the short period of 14 days without considering the impact which will render the entire building unusable and endanger the integrity of the entire structure, which also has a significant financial implication on the Appellant in terms of cost of demolition, re-construction and rental income; and

g)   The Respondent has not availed any evidence to the Appellant that its building and property is encroaching on riparian reserve and in any event the Respondent is estopped by the doctrine of legitimate expectation arising from its issuance of the E.I.A Licence it granted the Appellant from denying propriety and legal right to continue using its building in the same condition and extent as was approved by the Appellant and the relevant authorities over 10 years ago.

The Appellant seeks the following reliefs from the Tribunal:

i.    An order under Certificate of Urgency that in the first instance this Honourable Tribunal do grant status quo ex parte to stay and stop the Respondent from enforcing its improvement notice in relation to the Appellant’s property whatsoever and to stop the Respondent from demolishing any structure on the Appellant’s property pending the hearing and determination of the Appeal filed herein;

ii.   A declaration that the improvement notice issued by the Respondent violates the legitimate expectation of the Appellant and is therefore null and void ab initio;

iii. An order setting aside in its entirety the undated improvement notice served in respect of the Appellant’s property and left therein on the 15^th October 2018; and

iv.  An order that the Respondent do pays the Appellant’s costs of the appeal herein.

RESPONDENT’S REPLY

6. The Respondent responded to the appeal and the notice of motion application vide a replying affidavit sworn by one David Ong ‘are and dated 5^th November 2018. The Respondent contends that the mandate of NEMA is established by law and extends to protecting riparian reserves with a view of safeguarding the right to a clean and healthy environment guaranteed to all Kenyans.

7.  The Respondent further contends that in order to clean up the Nairobi River, the Government of Kenya set up a team comprising of the Respondent and others, to mark all the structures that are encroaching onto the Nairobi River with a view of having them removed.

8.  That on the 12^th and 15^th October 2018, the Respondent’s officers visited the properties of the Appellants situate in industrial area and found that their boundary walls were all encroaching onto the riparian reserve and thus issued improvement orders.

9.  The Respondent further contends that the operation was made on over 10 properties where the rest of the affected persons visited the Respondent’s offices and entered into a negotiated plan for compliance which included extension of time to comply and the assistance in marking the riparian area for purposes of clearance.

10. The Respondent averred that none of the applicants have averred that the allegation of encroachment is untrue by way of producing secondary measurements but have instead relied on approvals issued by other entities and for other purposes.

11. It is the Respondent’s contention that the law on riparian reserves provides for a minimum of 6 meters and a maximum of 30 meters from the highest recorded flood level of a river. The Respondent further contends that the encroachment was way beyond the minimum 6 meters measured from the edge of their walls to the highest water mark of the river thus illegal.

12. The Respondent contends that some of the boundary walls in issue were over time extended ostensibly to ‘Make use’ of the riparian space as the owners did not attach any value to riparian land.

13. The Respondent contends that none of the approvals produced by the Appellants i.e. building approvals, certificate of titles, certificates of occupation, lease agreements or even the Environmental Impact Assessment Licence produced by one of the Appellants confer title to the riparian land that the Appellants have erected their boundary walls on. All the approvals produced touch on the main buildings and cannot be used to justify the illegality of encroaching on the riparian reserve.

14. The Respondent further contends that the Environmental Impact Assessment (EIA) licence produced and relied on by the Appellant in NET 16 of 2018 is not a blanket approval that would allow the holder to trample on existing laws.

15. On 27^th November 2018, the Respondent filed a further Reply sworn by one Samuel Ng’ang’a, a county Environment officer and inspector in the service of the Respondent.

16. Mr. Samuel Ng’ang’a averred that the mandate of the Respondent herein and the special team thereof was not limited to the Nairobi river only but all the river riparian areas within Nairobi County.

17. He averred that the boundary walls referred to mean and include the external walls (as defined by the Physical Planning Act Control Rules, 1998) of the premises of the various Appellants that were encroaching onto the riparian reserve.

18. Mr. Samuel Nganga clarified that the walls referred to therein were extensions of the main buildings and were encroaching the riparian area. No building plans for the said extensions of the main buildings have been obtained and in any event would be in violation of the riparian area.

19. The Respondent further contends that under the Survey Regulations (1994) at regulation 11 under the Survey Act, provision was made for tidal rivers reservation where a riparian set back line of a maximum of 30 meters was to be observed.

20. The Respondent contends that the Ngong River is the river that the appellant’s structures abut, is by all description a tidal river as its high water mark fluctuates with seasons.

21. The Respondent avers that the Environmental Management and Coordination Act (EMCA) enacted in the year 1999 did not even introduce any new provisions on riparian reserves but only introduced clarity by providing for a lower limit of 6 meters from the highest recorded flood level. The 30 meters maximum required for river reserves has remained over a long time. It further contends that Section 44 of the Survey Act requires that the Appellants if in doubt of the boundary of their plots, to inspect the boundary plans resident with the Director of surveys and not build blind.

22. Mr. Samuel Nganga further averred that he informed the Appellants or their representatives that part of their structures were encroaching the Ngong River riparian as indicated in the improvement orders issued. That he took indicative measurements as between the property walls adjacent to the river and put markings on the inside walls of the building; and the buildings had indeed encroached on the riparian reserve blocking any access to the river hence indicative measurements could only be done from inside the buildings.

23. The Respondent invited the Tribunal to inspect the premises of the Appellants to verify that indeed the structures are on the riparian areas.

24. The Respondent also averred that the Appellants have not produced any local physical development plans to support their allegations of nonexistence of a Riparian reserve.

25. Mr. Samuel Nganga further contends that the work of the Respondent and the Nairobi Regeneration Project/ Multi-sectoral Agency Consultative Committee on Unsafe Building is therefore made in the background of the inter and intra generational principle of environmental law.

FACTUAL BACKGROUND

26. The Appellant is the registered owner of properties known as LR No. 209/8667 whilst the Appellants in NET 017/18, NET 018/18 and NET 019/18 are registered owners of properties known as L.R No. 209/7994/6, L.R. No. 209/7994/3 and L.R. No. 209/7994/2 respectively situated along Dar es Salaam road, Industrial Area in Nairobi and have enjoyed a quiet and uninterrupted possession of their respective properties since being registered as owners. 

27. The Appellant’s allege that they constructed the buildings after seeking and obtaining construction approvals from the then Nairobi City Council in the year 1987 well before the Respondent and EMCA came into existence.

28. On 12^th October 2018, the Respondent served improvement notices in respect of the properties owned by the Appellants in NET 018/18 and NET 019/18 whereby the Respondent ordered them to remove the alleged illegal structures within the alleged riparian reserve within 14 days, failure to which the structures would be removed at the Appellants’ costs.

29. On 15^th October 2018, the Respondent served improvement notices in respect of the properties owned by the Appellants in NET 016/18 and NET 017/18 whereby the Respondent again ordered them to remove alleged illegal structures at the Appellants’ cost.

30. The Appellants in NET Tribunal Appeal Nos. 017, 018, 019, 022 and 023 all of 2018 had all constructed their buildings after seeking and obtaining the relevant construction approvals from the then Nairobi City Council as far back as February 1987 for NET No. 17 of 2018, 5^th October 1987 for NET No. 18 of 2018, 13^th May 1987 for NET No. 23 of 2018 who were also granted their respective Certificates of Occupation.

31. The Appellant in NET 016/18 on the other hand sought and obtained approval for the construction of the building on its property Known as L.R. No. 209/8667 from the then Nairobi City Council and from NEMA in 2005, whereby the former issued a certificate of occupation and the Respondent issued an Environment Impact Assessment Licence authorizing construction.

APPELLANTS’ CASE

32. At the hearing stage of this matter, the Appellants called Mr. Amrish N. Patel, Suresh Nanalal Kantaria, George Mwangi and Mr. Michael Muikiria.

33. The Appellants called Bibiana A. Rabuku Omalla, a Surveyor as their expert witness. She testified that the center line of the river is the basis for establishing a riparian reserve.

34. An order was made to adopt the witness statements of the Appellants in NET Tribunal Appeals Nos. 017, 018 and 019 of 2018 as evidence and rely on testimony of the three Appellants who had already testified because all the Appeals raise common issues of facts and law.

RESPONDENT’S CASE

35. At the hearing of the Respondent’s case, the respondents called one Samuel Nganga, a county environment officer, to testify on its behalf. Mr. Samuel Nganga relied upon his witness statement dated 1^st March 2019 and filed on the same date, Further Reply of the Respondent dated 27^th November 2018 and filed on the same date, Supplementary Reply of the Respondent dated 16^th December 2019 and filed on 9^th January 2020.

36. The Respondent also filed a replying affidavit sworn by one David Ong’are, dated 5^th November 2018 and filed on the same date. Mr. Ong’are averred that he is the director in charge of compliance and enforcement of environmental laws in the service of the Respondent.

SITE VISIT

37. The Tribunal conducted its site visit on 5^th September 2019.

SUBMISSIONS

APPELLANT’S SUBMISSIONS

38. The Appellant instituted the appeal on 23^rd October 2018 seeking that the Respondent be restrained from enforcing its improvement notice dated 15^th October 2018 in relation to the Appellant’s property whatsoever and to stop the Respondent from demolishing any structure on the Appellant’s property.

39. The Appellant also seeks a declaration that the improvement notice issued by the Respondent violates the legitimate expectation of the Appellant and is therefore null and void ab initio and seeks the setting aside of the improvement notice in its entirety.

40. The Appeal herein was consolidated with NET Tribunal Appeal Nos. 017, 018, 019, 022 and 023 all of 2018, that involve adjoining properties that are situated along the Ngong River Channel at the rear and Dar es Salaam Road at the front and in respect of which the Respondent issued similar improvement notices to their owners as the one issued to the Appellant in NET Tribunal Appeal No. 016 of 2018, as can be seen from the respective Appeals.

41. The Appellant in NET Tribunal Appeal No. 016 of 2018 sought and obtained approval for the construction of the building on its property known as L.R. No. 209/8667 from the then Nairobi City Council and an Environment Impact Assessment License from the Respondent.

42. The Appellant’s director in NET Tribunal Appeal No. 016 of 2018, Mr. Amrish N. Patel, testified before the Tribunal on 7^th May 2019 relying on his witness statement dated 18^th March 2019 and produced the documents which were attached to his witness statement.

43. The Appellants submitted that the building construction approvals done as far back as 1987 and 1979 for the Appellants in NET Tribunal Appeal Nos. 017, 018, 019, 022 and 023 all of 2018 were made well before the Respondent and its enabling statute namely EMCA came into existence in 2000 and therefore the Respondent’s action of issuing the improvement notices when the Appellants had complied with the existing law is contrary to the trite principle of prospective application.

44. The Appellants in NET Appeal Nos. 017, 018, 019, 022 and 023 all of 2018 are registered owners of properties known as LR No. 209/79994/3, L.R. No. 209/7994/2, LR No. 209/7994/7 and LR No. 209/8666 respectively as evidenced by their copies of titles attached to their respective witness statements filed herein and have enjoyed quiet and uninterrupted possession of their respective properties since being registered as owners.

45. The Appellants submitted that all the approved building plans produced by the Appellants indicate that they built their buildings within their beacons and no riparian reserve was indicated on any plan save that a 3 meter way leave for existing NCC sewer was indicated on the building plan for L.R. No. 209/8667 and again a 3 meter way leave on the building plan for L.R. No. 209/7994/7, which is not a riparian reserve.

46. That in view of the facts stated in the background and evidence adduced as stated above, the Appellants submit jointly that they are not in breach of any law and in particular the EMCA and the Respondent’s action is intent on arbitrarily denying them their proprietary and legal right to continue using their building in the same condition and extent as was approved by the relevant authorities over 28 years ago.

47. The Appellant’s submitted that the respondent’s witness by the name Samuel Ng’ang’a who described himself as an Environment Inspector could not and did not produce any measurements that he allegedly took to establish the specific distance from the canal that he alleged each of the Appellants properties had encroached on the alleged riparian reserve and could not even directly identify the high watermark point on the canal for which he had no measurements of the highest recorded flood level

48. The Appellant’s further submitted that from the observation at the site visit it was evident that there is a canal built of concrete at the rear of the Appellants properties and that its total width is approximately 6 to 8 meters with a narrow channel for water to pass through at the center, that was the only part that had water flowing at the material time whilst there was another 3 to 4 meter at the base on each side at the lower level of the canal without any water flowing before it ascends to a height of about 3 to 4 meters high to the ground level.

49. The Appellant submitted that from the observation at the site visit, it is clear that the canal is an elaborate work of engineering and that it is not a natural river course whatsoever and it appeared well designated to control the level of water from rising beyond the height of the canal thus ensuring there are no floods. There was no evidence of interference of the canal by the Appellants that was demonstrated by the Respondent and it could be observed that at least 3 meter distance was left between the bank of the canal and the building rear walls, which together with the distance of 3 to 4 meters from the center of the canal at the base would give a total distance of 6 to 7 meters from the center of the canal to the rear walls of the properties.

50. The Appellant further submitted that the Respondent had falsely alleged the Appellants’ boundary walls were over the time extended to make use of the riparian space but failed to point out the alleged boundary walls on site that were allegedly extended and that contrary to its allegation the rear walls of the Appellants’ buildings are part of the main buildings external walls approved during construction of the buildings and are not additions nor boundary walls.

51. The Respondent also produced the survey plans no. F/S 154/1 and 138/21 and the Google map overlay of the two survey Plan.  Mr. Michael Muikiria was called as a witness from the Department of Survey who confirmed that all the Appellants properties were built within their boundary beacons as noted on the survey plans and the Google map overlay and further there was no riparian reserve noted anywhere on both survey plans hence the Appellants could not be said to have encroached on any riparian reserve and that he also confirmed that the two survey plans are authentic and approved by the Director of survey.

52. The Appellants also called Mrs. Bibiana A. Rabuku Omalla, a registered surveyor who produced a surveyor’s report dated 11^th September 2020 in respect of the two survey Plan and she confirmed that under the Survey Plan No. 154/1 the boundary line of the properties is the center line of the canal as depicted on the deed plans attached to the titles for these properties.

53. It was the Appellant’s contention that the owners of the properties on the survey Plan no. 154/1 had proprietary right over their lands until the center line of the river which means there was no riparian reserve noted under the said survey Plan, whilst Survey Plan No. 138/21 also did not show any riparian reserve.

54. The Appellants further submitted that whereas the Respondent purported to issue the Appellants with Improvement Notices that indicated that “Ground inspection conducted by NEMA Environment Inspectors indicated that your building is encroaching on the six (6) meters riparian reserve from the highest water mark contrary to the law (EMCA) cap 387,’’ the said notice failed to specify the law under EMCA that was breached, the specific distance which the said building encroached the alleged high water mark thus rendering the entire exercise arbitrary and a sham.

55. The Appellants further averred that the improvement notices contradict the allegation by the Respondent witness that the Appellants had extended boundary walls over time, since nowhere in the improvement notices is there any mention of boundary walls and the Respondent in fact notified the Appellants to demolish their buildings when they made marks right inside the second column of the buildings as per the pictures evidenced by the Appellants.

56. The Appellant submitted that the Environment Management and Co-ordination Act, No. 8 of 1999 came into force on the 14^th January 2000 when all the Appellants save the Appellant in NET Appeal No. 16 of 2018 had long sought and validly obtained approval to construct their buildings from the Nairobi City Council which had the Director of National Environment Secretariat as a member in the physical Planning committee and finished the construction before the Respondent came into existence.

57. The Appellants further submitted that the Respondent’s action of issuing the Improvement Notices to the Appellants in NET Appeal Nos. 017, 018, 019, 022 and 023 all of 2018 is contrary to the trite principle of prospective application of the law and the Respondent’s action is unlawful as it is intent on arbitrarily denying the Appellants their proprietary and legal right to continue using their buildings in the same condition and extent as was approved by the relevant authorities over 28 years ago. The Appellants relied on the decision of the Court of Appeal in Commissioner of Income Tax –vs- Pan African Paper Mills (E.A) Limited [2018] eKLR.

58. The Appellants submitted that the legislature did not intend that the EMCA Act would have retroactive application and it is not manifested in the said legislation and thus renders the impugned improvement notices illegal and unlawful since the Respondent is seeking to retroactively apply the law and thereby infringe on the Appellants substantive proprietary rights acquired over 28 years ago.

59. The Appellants submitted that, the Respondent having issued the Appellant in NET Appeal No. 016 of 2018 with an Environment Impact Assessment License on the 18^th November 2005 is estopped from purporting that the said Appellant has encroached on a riparian reserve since no such reserve was noted on the Environment Impact Assessment License and the approval of the building construction by the Respondent is a confirmation that the Appellant complied with all the legal requirements.

60.   The Appellants relied on section 120 of the Evidence Act to the effect that:-

“when one person has , by his declaration, act or omission , intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

61. The Appellant submitted that the Respondent having issued an Environmental Impact Assessment License to the Appellant in NET No. 16 of 2018 which it relied on in constructing its building on its property cannot now allege that the very same building it approved is encroaching on an alleged riparian reserve as this is unconscionable and contrary to the law.

62. The Appellants while relying on the case of Serah Mweru Muhu –vs- Commissioner of Lands & 2 Others [2014] eKLR submitted that the Respondent is further estopped by the doctrine of legitimate expectation from the construction approvals that were granted by the relevant authorities at the material time prior to the existence of NEMA from denying the Appellant’s propriety and legal right to continue using their buildings in the same condition and extent as was approved by the relevant authorities over 28 years ago.

63. The Appellant further submitted that the Respondent failed to accord the Appellant any hearing prior to issuing them with the impugned Improvement Notices which breached the Appellants fundamental rights as contemplated by Articles 47 and 50 (1) of the Constitution that requires that any administrative action be lawful, reasonable and procedurally fair.

64. The Appellants further submitted that in issuing the arbitrary impugned Improvement Notices, the Respondent as a public body failed to adhere to the provisions of section 4 (3) of the Fair Administrative Action Act, which makes it mandatory for a person to be given prior and adequate notice of a proposed action that will affect his right and an opportunity to be heard and to make representations in that regard thus rendering the Improvement notices unlawful for want to comply with the law.

65. While submitting on the Respondent’s failure to accord the parties due process, the Appellants relied on the case of Kenya Human Rights Commission & Another –V- Non-Governmental Organizations Co-ordination Board & another [2018]eKLR

66. The Appellants submit that the Water Resource Management Rules, 2007 which came into force after all the Appellants buildings had been approved and constructed hence does not apply, the riparian reserve is defined at Rule 116 as land on each side of a “water course” with the specified measurements indicated therein.

67. In conclusion the Appellants submitted that the improvement Notices issued by the Respondent were unlawful and improper in law and that the Appellants properties have not encroached on any riparian reserve as alleged by the Respondent.

RESPONDENT’S SUBMISSIONS

68. The Respondent advanced three issues for determination that this Tribunal should consider. It also went ahead to submit on the same. The issues were as follows:-

a)   How is a riparian reserve determined?

b)   What is the purpose of canalization of a water body vis a vis the riparian reserve?

c)   Should developments dating way back to pre-EMCA period be subjected to riparian protection provisions of the law?

On the issue of how is a riparian reserve determined, the Respondent submitted as follows:-

69. The Respondent’s submitted that this issue was conclusively determined in the case of Milimani Splendour Management Ltd –vs- NEMA and 4 Others (2019) eKLR. The Respondent went ahead and reproduced paragraph 54 of the judgment where it was stated that: -

“The Court directs the 1^st, 2^nd and 3^rd Respondents to undertake a survey of Kirichwa Kubwa River from its source all the way downstream within 90 days of the date of this judgment to determine the boundary between the river and the adjacent landowners whose land abut the riparian reserve and with a view to restoring the riparian reserve for Kirichwa Kubwa river. The measurement of the riparian reserve will be based on the high and low watermarks and not the center of the river in conformity with the definition of the high and low watermarks under the regulations made under EMCA.”

70. To rebut the Appellants’ argument that the riparian reserve is determined from the center line of the river and not from the highest recorded watermark, the Respondent’s relied on paragraph 49 of the Milimani Splendour decision. At paragraph 49 of the Milimani Splendour Decision the court held that:-

“The Petitioner maintained that there was a 10 meter riparian reserve between the suit property and Kirichwa Kubwa River measured from the middle of the river and that over time the river had changed course for which the Petitioner should not be made to suffer since the river’s change of course reduced the size of the riparian reserve. From the definition of the high and low watermarks in the regulations made under EMCA, it is evident that the measuring of the 10 meter riparian reserve from the middle of River Kirichwa to the Petitioners suit land was erroneous as it does not take into account the high and low watermarks which are determined with reference to the level of contact between the water and the bank and not from the center of the river. There is no evidence to show that the highest recorded flood level for Kirichwa Kubwa River was taken into consideration when the survey of the riparian reserve adjacent to the Petitioner’s land was done.”

71. The Respondent’s advocates submitted that it behooves every person to play an active role in environmental protection in light of Article 69 (2) of the Constitution which places the duty on every person to cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and the court is enjoined to apply the prevention principle in preventing activities that may cause damage or harm to our rivers.

72. The Respondent’s advocates submitted that during the site visit conducted by the Tribunal members on 5^th September 2019 in the presence of the parties and their counsels, it was evident that the walls of the Appellants’ properties were right at the embankment of the river canal and that they all showed effluent discharges through pipes that ran underground and into the river canal. A riparian reserve also ensures that environmental inspectors have ease of access to walk and do their duties by river banks.

73. The Respondent while relying on the court’s decision in the Milimani Splendor decision, referred to paragraph 52 of the judgment of the aforesaid case to the effect that:-

“Article 69 (1) of the constitution enjoins the state to meet several responsibilities in relation to the environment, some of which are to ensure the sustainable exploitation, utilization, management and conservation of the environment and natural resources and to eliminate activities that are likely to endanger the environment. Sustainable development is one of the national values and principles of governance under Article 10 of the Constitution which bind all state organs, public officers and all persons whenever they apply or interpret any law or when they make or implement public policy decisions. In the court’s view, these constitutional imperatives should not only guide the Respondent’s, but also the Nairobi regeneration committee and the multi-agency team, as they reclaim the riparian reserves in Nairobi.”

74. Whilst quoting paragraphs 45 to 48 of the Milimani Splendour judgment, the Respondent submitted that the court was not blind to the existing and old laws and to the conflict of laws but it applied a constructive and progressive interpretation of the law.

75. The learned judge in the Milimani Splendour case stated that:-

“Rivers and all land between the high and low watermarks constitute public land pursuant to Article 62 of the Constitution. Black’s law Dictionary, 10^th Edition defines a watermark as the highest or lowest point to which water rises or falls. The dictionary defines the high watermark in a river not subject to tides as the line that the river impresses on the soil by covering it long enough to deprive it of agricultural value and low watermark as the point in a river to which the river recedes at its lowest stage.

The Environmental Management and Coordination (Wetlands, River Banks, Lake shores and sea shore Management) Regulations 2009 defines the high watermark as the historical recorded point of the highest level of contact between the water and the bank while the low watermark is defined as the historical recorded point of the lowest level of contact between the water and the bank. The river bank is defined as the rising ground from the highest normal watermark bordering the river in the form of rock, mud gravel or sand; and in case of flood plains would include the point of rock, mud, gravel or sand; and in the case of flood plains would include the point where the water surface touches the land which is not the bed of the river.

The court notes that the regulations under EMCA came into force later than those made under the Survey Act and Physical Planning Act. In defining the riparian reserve, all these pieces of legislation did not take into consideration the land between the high and low watermarks stated in the Constitution of 2010. From the definition of the high and low water marks in the Environmental Management and Co-ordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009, it is evident that the measurement of the riparian reserve is to be pegged on the riverbank and the highest point on the land which water gets to during flooding. The riparian reserve is not to be measured from the Centre of the river as the petitioner contended.

The court agrees with the Petitioner that there are conflicting legal provisions on the measurement of the riparian reserves in Kenya and there is need for parliament to harmonize the different laws to guide the surveyors in determining the boundaries of privately held land that is adjacent to rivers and other water bodies.”

76. On the issue of what is the purpose of canalization of a water body vis a vis the riparian reserve, the Respondent’s relied on secondary authorities to the effect that:- according to Macafferi Corporate Environmental Consultants https://www.macaferri.com/solutions/chanelling-works/, the canalization of a water course involves constructing a channel with a designed cross-section to meet the flow characteristics and capacity required. This can be to control the meandering of a river through a built up area, or in the vicinity of infrastructure. Without this managed containment, the water course would be free to erode and cause problems. Where channels transport clean water flow through polluted ground, or vice versa, the channel may be lined to render it impermeable, for example in agricultural irrigation schemes.

77. The Respondent’s submitted that canalization presents the following advantages or uses:-

a)   Controlling the meandering of a river through a built up area or in the vicinity of a structure e.g. when a river channel has to pass under an existing building that ought not be demolished for compelling reasons; and

b)   Increase or maintain the flow or depth of a river to acceptable levels e.g. for subsequent damming purposes.

78. In relation to the matter at hand, the Respondent submitted that in the case of the Ngong river and from the evidence of the NEMA and Water Resource Authority officers/ Experts who attended the Tribunal site visit on the 5^th September 2019, it is evident that the canalization was not to allow for encroachment of the river riparian but to control its meandering through a built up, high density area. This canalization, runs not only behind the Appellant’s premises/ impugned structures, but all the way from Nairobi West Area and all the way to Likoni Road.

79. The Respondent further submitted that to maintain the long-term performance of these channels, a protective lining is often applied to the banks and, if required, to the channel bed. Without protection, erosion of the channel will occur as a result of the hydraulic shear stresses acting on the soil’s surface.

80. The channel lining serves many functions:

a)   Reduction of water losses by seepage;

b)   Improved bank stability;

c)   Erosion protection; and

d)   Provision of a predetermined value of bank roughness, hence channel flow capacity.

On the issue of whether the developments dating way back to pre-EMCA period be subjected to riparian protection provisions of the law, the Respondent’s submitted the following: -

81. That in deciding or construing the retrospective application of a law, it is important to know whether the ‘new law’ is substantive or procedural and also what the intention of legislature is/ was.

82. The Respondent went further and relied on the Court of Appeal decision in Commissioner of Income Tax vs Pan African Paper Mills (EA) ltd ( 2018) eKLR  where the issue of retrospective application of laws was stated thus:-

We are further guided by the case of Municipality of Mombasa –vs- Nyali Ltd (1963) EA (supra) which held that:- “whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation the courts are guided by certain rules of construction. One of these rules is that if the legislation affects substantive rights it will not be construed to have retrospective operation unless a clear intention to that effect is manifested; whereas if it affects procedure only, prima facie it operates retrospectively unless there is a good reason to the contrary.  But in the last resort it is the intention behind the legislation which has to be ascertained as a rule of construction is only one of the factors to which regard must be had in order to ascertain that intention.”

83. Regulation 6 of the Environmental Management and Coordination (water quality) regulations. 2006 Legal Notice 120 of 2006 states as follows:-

No person shall-

a)   Discharge, any effluent from sewerage treatment works industry or other point sources without a valid effluent discharge license issued in accordance with the provisions of the Act;

b)  Abstract ground water or carry out any activity near any lakes, rivers, streams, springs and wells that is likely to have any adverse impact on the quantity and quality of the water, without any Environmental Impact Assessment license issued in accordance with the provisions of the Act; or

c)   Cultivate or undertake any development activity within full width of a river or stream to a minimum of six meters and a maximum of thirty meters on either side based on the highest recorded flood level.

84. It is the Respondent’s submission that the operative provision is Regulation 6 (c) and it prohibits any development activity within the full width of a river or stream to a minimum of 6 meters and a maximum of 30 meters on either side based on the highest recorded flood level.

85. It was the Respondent’s submission that the intention of parliament through the subsidiary legislation that is Legal Notice No. 120 of 2006 was to protect our rivers, our riparian reserves and nothing should take away that protection.

ISSUES FOR DETERMINATION

86. Having Considered the Appellant’s appeal instituted vide a Notice of Appeal dated 23^rd October 2018, the witness statements, the Appellant’s list and bundle of documents, the Respondent’s Statement of Reply to Appeal, the Appellant’s submissions dated 26^th November 2020; Appellant’s supplementary submissions dated 11^th February 2021 and Respondent’s submissions dated 4^th February 2021, the Tribunal will address the following issues:

a)   Whether the Appellants’ appeals are merited; and

b)   What orders should the Tribunal make?

A.  Whether the Appellants’ Appeals are Merited

87. The Environmental Management and Co-ordination Act (EMCA), No. 8 of 1999 establishes the National Environment Management Authority with the object and purpose of exercising general supervision and co-ordination over all matters relating to the environment. This mandate further flows from the Constitution which enshrines the right to a clean and healthy environment under article 42 and sets out several obligations by the state in respect of the environment under article 69.

88. In discharge of its functions, EMCA grants certain powers to NEMA and further sets out various tools to be employed by NEMA towards its mandate. Under section 108 of EMCA, NEMA may issue and serve on any person in respect of any matter relating to the environment, an environmental restoration order. Under section 108 (2) of EMCA, an environmental restoration order may be issued to inter alia require the person to whom it is served to restore the environment as near as it may be to the state in which it was before the taking of the action which is the subject of the order and prevent the person on whom it is served from taking any action which would or is reasonably likely to cause harm to the environment.

89. In discharge of its statutory mandate pursuant to section 108 of the EMCA, the Respondent served upon the Appellants an Environmental Restoration Order dated 12^th October 2018 ordering them to remove alleged illegal structures within the alleged riparian reserve within 14 days, failure to which the structures would be removed at the Appellants’ costs.

90. While EMCA grants powers to the Respondent to do certain acts towards environmental conservation, the Act envisions such acts being undertaken within the parameters defined by law. Section 108 (5) of EMCA provides that, in exercising powers to issue environmental restoration orders, the Authority shall:

a)   Be guided by the principles of good environmental management in accordance with the provisions of the Act; and

b)   Explain the right of appeal of the persons against whom the order is issued to the Tribunal or if dissatisfied with the decision of the Tribunal, to superior courts.

91. The Appellants, in their respective appeals challenge the Improvement Notices issued by the Respondent and contend that they had constructed their buildings after seeking and obtaining the relevant construction approvals from the then Nairobi City Council way back in 1987 well before the Respondent and the enabling statute namely EMCA Act came into existence in 2000.

92. The Appellants further contend that the Respondent’s action is contrary to the trite principle of prospective application of the law. They contend that the Nairobi City Council approved their building plans and subsequently granted the Appellants the Certificates of Occupation. The Appellants contend that the Improvement Notice from the Respondent were issued unprocedurally and are thus unlawful.

93. The bone of contention between the parties is whether the Appellants should comply with the Improvement Notices issued by the Respondent. The contention arises from the fact that the Appellant in this appeal and the Appellants in the other appeals obtained their construction permits and certificates of occupation many years before the Respondent was established. The Appellants developed their properties based on the laws that existed at the time.

94. The Appellants submitted that the Respondent’s action of issuing the Improvement Notices is contrary to the trite principle of prospective application of the law and the Respondent’s action is unlawful as it is intent on arbitrarily denying the Appellants their proprietary and legal right to continue using their buildings in the same condition and extent as was approved by the relevant authorities over 28 years ago.

95. Further, the Appellants submitted that the legislature did not intend that the EMCA would have retroactive application and it is not manifested in the said legislation and thus renders the impugned improvement notices illegal and unlawful since the Respondent is seeking to retroactively apply the law and thereby infringe on the Appellants’ substantive proprietary rights acquired over 28 years ago.

96. The Appellants adduced evidence demonstrating that they obtained their building permits and Certificates of Occupation from the Nairobi City Council as far back as 1987. Fundamentally, the expert testimony received from the Surveyors who testified before the Tribunal made it clear to the Tribunal that the boundaries of the Appellants’ properties did not encroach on the riparian reserve. The boundaries are within six (6) meters from the center line of the river. The Survey Act provided for measurements for the riparian reserve to be six (6) meters from the center line of the river at the time the Appellants properties were being surveyed.

97. It is a trite principle of law that unless legislation specifically provides for retroactive application of the law, the provisions of a new enactment can only be applied prospectively. In Duncan Otieno Waga V Hon. Attorney General [2012] eKLR the court held that the Constitution is only prospective and the acts occurring prior to the Constitution are, unless otherwise stated by the Constitution itself, to be judged by the existing legal regime that is, the former Constitution.

98. Similarly, the Appellants before this Tribunal have demonstrated that they developed their properties based on Survey plans which were prepared in accordance with the Survey Act. Legislation requiring a riparian reserve measuring a minimum of 6 meters from the highest recorded watermark was enacted after the Appellants had developed their properties. Therefore, the Appellants appeal can only be determined based on the legal regime existing at the time when the Appellants developed their properties. As for the Appellant in this appeal, it obtained an Environmental Impact Assessment licence No. 0000286 from the Respondent before it put up its godown and office building on L.R No. 209/8667 on 18^th November 2005. The Respondent is estopped from asserting 13 years later that the Appellant has encroached on a riparian reserve.

99. The Respondent did not adduce evidence to demonstrate that the Appellants have developed their properties beyond their respective boundaries as per the survey plans adduced before the Tribunal. In addition, the Respondent did not demonstrate that the Survey Plans provided for a riparian reserve which the Appellants have encroached upon.

100.  It was the Appellants’ submission that from the observation at the site visit, it was evident that there is a canal built of concrete at the rear of their properties and that its total width is approximately 6 to 8 meters with a narrow channel for water to pass through at the center, that was the only part that had water flowing at the material time whilst there was another 3 to 4 meter at the base on each side at the lower level of the canal without any water flowing before it ascends to a height of about 3 to 4 meters high to the ground level.

101.  The Appellants also submitted that from the observation at the site visit, it is clear that the canal is an elaborate work of engineering and that it is not a natural river course whatsoever. It appeared well designated to control the level of water from rising beyond the height of the canal thus ensuring there are no floods. We agree with the Appellants.

102.  In discharge of the 1^st Respondent’s mandate under the legislation it was imperative that environmental harm or the potential for harm be shown meriting the action taken by the said authority to protect the environment. From the evidence presented there appears to have been a blanket direction by the rejuvenation taskforce to clear all riparian land without considering the nature of the land adjoining the river in its stretch through the Nairobi city and the different impacts to the river along each stretch. In the instant case, the evidence presented and the finding of the site visit by the Tribunal neither revealed any pollution from the subject properties into the river along the canalized section of the river to warrant their demolition nor did the presence of the Appellants’ buildings along the canalized section disclose any environmental impact to the route of the river as the canalization of the river at that section had already determined and set its pathway. The canalised waterway doesn't affect the flow or the path of a river and has an inconsequential environmental impact in the current context

103. Upon our site visit the Tribunal noted that there was a lot of waste from illegal dumping and also flowing from the informal settlements along the river bank. The Nairobi County Government is responsible for ensuring that waste is dumped only at designated waste areas. The dumping along the river side contributes to the river’s pollution. NEMA has a role under EMCA to ensure that such pollution does not take place and to compel parties including the County Government to do their part under the various coercive mechanisms in EMCA to ensure compliance.

104.  The Court observed in Milimani Splendour Management Ltd –vs- NEMA and 4 Others (2019) eKLR that there are conflicting legal provisions on the measurement of the riparian reserves in Kenya and there is need for Parliament to harmonize the different laws to guide the surveyors in determining the boundaries of privately held land that is adjacent to rivers and other water bodies. While the Respondent quoted the holdings in this judgment extensively, it did not demonstrate to the Tribunal whether Parliament has harmonized the different laws identified in the judgment.

105.  In the circumstances we find that the Appellants appeals are merited. The Appellants developed their properties in accordance with the laws prevailing at the time of carrying out their developments. Their developments do not encroach on the riparian reserve of Ngong river.

B.  What orders should the Tribunal make?

106.          Section 129 (3) of the Environment Management and Co-Ordination Act, No. 8 of 1999 empowers the Tribunal to make either of the following orders upon hearing an appeal:

a)   Confirm, set aside or vary the order or decision in question;

b)   Exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; or

c)   Make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just. (emphasis added)

107.  The Tribunal has found that the Appellants’ appeals are merited. The Improvement Notice issued to the Appellant in this appeal over L.R. No. 209/8667 and the Improvement Notices issued to the Appellants in NET No. 017/18, NET No. 018/19, NET No.019/18, NET No. 022/18 and NET No. 023/18 over LR No. 209/79994/3, L.R. No. 209/7994/2, LR No. 209/7994/7 and LR No. 209/8666 are null and void and are hereby set aside.

Orders:

1.   The Appellant’s appeal and the appeals in NET No. 017/18, NET No. 018/19, NET No. 019/18, NET No. 022/18 and NET No. 023/18 are hereby allowed;

2.   The Improvement Notice issued to the Appellant in this appeal over L.R. No. 209/8667 and the Improvement Notices issued to the Appellants in NET No. 017/18, NET No. 018/19, NET No. 019/18, NET No. 022/18 and NET No. 023/18 over LR No. 209/7994/3, L.R. No. 209/7994/2, LR No. 209/7994/7 and LR No. 209/8666 are hereby set aside; and

3.   A permanent injunction is hereby issued against the Respondent by itself and/or through its agents, servants and/ or employees or otherwise whatsoever from entering, breaking, demolishing, destroying, evicting, defacing, flattening, removing and/or in any way howsoever interfering with the building, wall, compound and quiet enjoyment of the Appellants’ properties being LR Nos. 209/8667, 209/7994/3, L.R. No. 209/7994/2, LR No. 209/7994/7 and LR No. 209/8666  all situate along along Dar-es-Salaam road, Industrial area, Nairobi and/or enforcing the improvement notices served upon the Appellants;

4.   The Appellants shall ensure that no waste is dumped in the river or along the riverbank;

5.   The 1^st Respondent shall conduct an inspection of the banks along the Nairobi River and commence enforcement action against the Nairobi City County Government and any other relevant parties for violating the anti-dumping measures or failure to enforce the applicable laws and regulations for the cleaning of the Nairobi River; and

6.   Each party shall bear their own costs.

Parties’ attention is drawn to the provisions of section 130 of EMCA. The Tribunal thanks Counsel for the Appellants and Counsel for the Respondent for the extensive research which they conducted while preparing their respective submissions.

DATED AT NAIROBI THIS 26TH DAY OF AUGUST 2021

MOHAMMED S. BALALA…………………...…………………CHAIRPERSON

CHRISTINE MWIKALI KIPSANG………………………….………   MEMBER

BAHATI MWAMUYE……………………………..…………………   MEMBER

WAITHAKA NGARUIYA…………………….…………………….   MEMBER

KARIUKI MUIGUA…………………………..………………………  MEMBER