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|Case Number:||Tribunal Appeal 16 of 2019|
|Parties:||DOBS Entertainment Limited v National Environment Management Authority|
|Date Delivered:||07 Jul 2021|
|Court:||National Environment Tribunal - Nairobi|
|Judge(s):||Hon. Mohammed S. Balala - Chairperson, Hon. Christine Mwikali Kipsang’- Vice-Chairperson, Bahati Mwamuye - Member, Waithaka Ngaruiya - Member & Kariuki Muigua - Member|
|Citation:||DOBS Entertainment Limited v National Environment Management Authority  eKLR|
|Case Outcome:||Appeal dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE NATIONAL ENVIRONMENTAL TRIBUNAL AT NAIROBI
TRIBUNAL APPEAL NO. 016 OF 2019
DOBS ENTERTAINMENT LIMITED.............................................................APPELLANT
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY.............. RESPONDENT
1. This present Appeal challenges an Environmental Restorative Order dated 10th April 2019 issued by the Respondent to the Appellant. Earlier on the Respondent issued Improvement Notices dated 25th January 2019 and 7th March 2019 to the Appellant regarding playing music and provision of sound proofing measures.
2. The Appeal is seeking the following reliefs
1.An order under certificate of urgency that; -
a) In the first instance, this Honourable Tribunal do grant an order staying the Environment Restoration Order dated 10.04.2019 in respect of the Appellant’s premises known as Shops Numbers 4,5,6,7 and 8 with Mezzanine at Birgi’s Complex situated on Plot 5079 Section 1, Mainland North, Nyali Mombasa pending the hearing and determination of this Appeal.
b) In the alternative to (a) to review or vary the Restoration Order dated 10.04.2019 and this Honourable Tribunal be pleased to; -
i) Issue an order allowing the Appellant to play music within its enclosed premises known as Shop Numbers 4,5,6,7 and 8 with Mezzanine at Birgi’s Complex situated on Plot Number 5079 Section 1, Mainland North, Nyali, Mombasa within the provisions of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009 pending the hearing and determination of this Appeal.
ii) Issue an order allowing the Appellant to play live band music within its enclosed premises known as Shop Numbers 4,5,6,7 and 8 with Mezzanine at Birgi’s Complex situated on Plot Number 5079 Section 1, Mainland North, Nyali, Mombasa within the provisions of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009 pending the hearing and determination of this Appeal.
iii) Issue an order allowing the Appellant to play music within its open space at Birgi’s complex situated on plot 5079 section 1, Mainland North, Nyali, Mombasa within the provisions of Regulation 5 of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009 pending the hearing and determination of this appeal.
iv) Issue an order allowing the Appellant to play live music band within its open space at Birgi’s complex situated on Plot 5079 Section 1, Mainland North, Nyali Mombasa within the provisions of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009 pending the hearing and determination of this appeal.
c) In the alternative of (a) or (b) hereinbefore this Honourable Tribunal be pleased to lift, vary, or review the environmental Restoration Order dated 10.04.2019 as deemed just by the Honourable Tribunal pending the hearing and determination of this Appeal.
2. A declaration that:
a) The restoration order dated 10th April 2019 issued by the Respondent:
i) Was in excess of jurisdiction or power conferred to the Respondent under the Provisions of the Environment Management and Coordination Act.
ii) Was in abuse of discretion, excess of jurisdiction or power conferred to the Respondent under the provisions of Regulation 3 and Regulation 5 of the Noise Pollution and excessive Vibration Pollution (Control) Regulations,2009.
iii) It is unreasonable, procedurally unfair, made in bad faith and violates the Appellant’s legitimate expectation of fair administrative action as enshrined in the Fair Administrative Action Act No.4 of 2015.
iv) Is unreasonable and prejudicial as it denies the Appellant’s legal right to operate a profitable business as a bar, restaurant, members club or as entertainment venue as licensed and permitted under the Hotels and Restaurants Act, Alcoholic Drinks Control Act and the Constitution of Kenya 2010 and in a commercial zone where various venues operate similar businesses.
v) Violates the Appellant’s right to Fair Administrative Action, access to justice and Fair Hearing enshrined in articles 47,48 and 50 of the constitution of Kenya,2010 and or
vi) It is null and void.
b) The Respondent acted in excess of power and jurisdiction of the provisions of the Noise Pollution and Excessive Vibration Pollution (Control) Regulations, 2009 by prohibiting the Appellant from playing any music or playing music below the maximum permissible Noise Levels in its premises.
c) The Respondent was biased, failed to account relevant considerations, and denied the Appellant a reasonable opportunity to state its case by failing to vary, lift or re-consider the Restoration Order and the losses to the Appellant’s business upon application by the Appellant under Section 110 (1) of the Environment Management and Co-ordination Act,1999.
d) The Respondent failed to discharge its duty as imposed by Section 108(5) of the Environment Management Coordination Act,1999 to inspect the Appellant’s premises or to establish where the source of noise emanated from or to measure the noise levels before issuing the Restoration Order.
3. The Appeal herein be allowed by setting aside the Environment Restoration Order dated 10.04.2019.
4. Or in the alternative to 3 above, the appeal herein be allowed by the varying, or reviewing the Environment Restoration Order dated 10.04.2019 as deemed fit by this Honourable Tribunal.
5. The Appellant’s costs of this appeal.
6. Any other relief and or orders that this Honourable Tribunal may deem fit to grant.
3. The Respondent filed a Reply to the Grounds of appeal dated 17th September 2019 and stated that it received complaints from Nyali Residents Association about constant noise pollution from the Appellant’s premises. The Respondent visited the premises on 25th January 2019 and noted among other things that the Appellant had embarked on major renovations in its premises including refurbishment and installations of a live band stage and ablution without an Environmental Impact Assessment License.
4. The Respondent issued an Improvement Notice to carry out Environment Impact Assessment of the renovations and stop playing of live band on the open-air stage as it was deemed the major source of noise pollution. However, the complaints increased, and the Respondent undertook another site visit on 7th March 2019 and found renovations going on and issued a further improvement notice for compliance.
5. The Respondent received the EIA Report from the Appellant for review, a letter dated 4th April 2019 on the measures undertaken in response to the Improvement Order dated 7th March 2019 and Noise Survey report from the Lead Expert commissioned by the Appellant.
THE APPELANT’S SUBMISSIONS
6. On 12th March 2019, the Appellant submitted the Noise Level Measurements Report and Public consultation with Nyali Residents Association was held whereby the Respondent’s representative attended and on 29th March 2019 submitted the Nyali Residents Association Public consultation form to the Respondent. On 4th April 2019, the Appellant wrote to the Respondent highlighting the measures undertaken to comply with the Improvement Notice dated 7th March 2019 and upon further consultation the Environment Restoration Order on 10th April 2019.
7. The Appellant also extensively submitted that the Restoration Order was issued arbitrarily and contrary to law without giving an opportunity for the Appellant to be heard and without consideration of the mitigation measures which were costly and time consuming. There was also no consideration of third-party contracts with bands and DJs. The Respondent never inspected the premises and failed to consider the Noise Level Measurement Report.
8. The Restoration Order was abruptly issued in bad faith in blatant abuse of the powers granted to the Respondent, unreasonable, prejudicial, arbitrary and without consideration of existing facts as noise could not be singled from one source. The Appellant submitted that the noise levels were not above maximum limits for residential areas.
9. The Appellant relied on the cases of Kenya Human rights Commission & Another vs Non-Governmental Organizations Coordination & Another (2016) Eklr quoting the case of Judicial Service Commission vs Mbalu Mutava & ANOTHER (2015) eKLr that administrative actions must flow from Article 47 (1) of the Constitution and must meet the constitutional twist of legality, reasonableness, and procedural fairness. According a party a hearing before acting against him is no longer discretionary. It is firmly entrenched in our Constitution as an invioable right. In Keroche industries Limited vs Kenya Revenue Authority & 5 other (2007) eKLR it was held that legitimate expectation is based not only on ensuring that legitimate expectations by parties are not thwarted but on a higher public interest beneficial to all including the Respondents which is the value or the need of holding authorities to promises and practices they have made and acted on and by so doing upholding responsible public administration. This in turn enables people affected to plan their lives with a sense of certainty, trust, reasonableness, and reasonable expectation (Noor Maalim Hussein & 4 others vs Minister of State for Planning National Development & Vision 2030) in my view statutory powers can only be exercised if they are exercised reasonably and for the intention it was donated or given in the first instance. If it is exercised in a manner contrary to the drafters or against public interest the power can be said to have been exercised capriciously, irrationally, or unreasonably. Thus, irrationality and unreasonableness would play a major role and we shall as courts continue to assert our traditional duty and intervene in situations where authorities like ministers and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision-making process or where they take irrelevant considerations or act contrary to legitimate expectations.
10. The Appellant urged the Tribunal to note that the Respondent acted beyond its powers and seeks prayers 2, 3 and 4 of its Appeal to be allowed.
THE RESPONDENT’S SUBMISSIONS
11. The Respondent submitted that the Restoration Order was issued to the Appellant who were playing live band in open air, in an unlawful manner under Section 9 and Section 108 of EMCA and preventive and precautionary principle of good environmental governance in relation to environmental pollution and relied on the case of Pastor James Jesse Gitahi & 202 others vs Attorney General Petition 683 of 2009 as quoted in Kilimani Project Foundation vs B concept Limited t/a B club Nairobi &7 others (2019) e Klr.
‘Prevention of noise and vibration pollution is now recognized as a component of a clean and healthy environment. Noise pollution covers sound which can result in hearing impairment while vibrations pollution covers vibrations transmitted to the human body though solid structures .Both excessive noise and vibration can cause injury to the body hence the need to regulate the levels of noise through the regulations…which have a general prohibition against loud, unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment. In determining whether the noise is loud several factors are considered including the time of day, the proximity to a residential neighborhood, whether the noise has been enhanced by any electronic or mechanized means or whether the noise can be controlled without effort or expense to the person making the noise.’
12. The Respondent submitted that the Appellant had been given two chances to remedy the noise levels without voluntary compliance before closure of the establishment and relied on the case of JR Misc. Application No.613 of 2016 Republic vs Nairobi City County Alcoholic Drinks Control and Licensing Board & Another Exparte Space lounge Bar & Grill Limited where the Court held I however appreciate that the Constitution of Kenya at Article 42 guarantees to all persons the right to a clean and healthy environment .This includes the right to peaceful environment devoid of noise and the right not to pollute the morality of the area residents and their children …..it is upon the operators of leisure and social places to ensure that they conduct their businesses in a manner that does not violate the rights of others………
13. The Respondent submitted that the principle of procedural fairness and right to be heard was followed before issuance of the Environmental Restoration Order on the Appellant on 10th April 2019 and on two previous occasions and there were negotiations with Nyali Residents Association prior to the Restoration Order.
14. The Respondent urges the Tribunal not to be used as a rubber stamp and dismiss the Appeal with costs.
Analysis and Determination
15. Having considered the pleadings and submissions of the Appellant and the Respondent the Tribunal finds that there are three issues for determination as follows.
a. Whether the Respondent’s decision to issue a Restoration Order to the Appellant was contrary to EMCA;
b. Whether the Respondent’s decision was in bad faith, in breach of rules of Natural Justice and in excess of its powers
Whether the Respondent’s decision to issue a Restoration Order to the Appellant was contrary to EMCA
16. The Tribunal is empowered to make the following orders under Section 129 (3) of the Environment Management and Coordination Act:
(3) Upon any appeal, the Tribunal may: -
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 mine).
17. Section 108 (1) of EMCA gives NEMA the mandate to issue and serve an Environmental Restoration Order on any person. Under the provisions of Section 108(4) (a), (b), (c) & (d), the order may require a person on whom it is served to-
(a) Take such action as will prevent the commencement of continuation or cause of pollution.
(b) Restore land, including the replacement of soil, the replanting of trees and other flora and the restoration as far as may be, of outstanding geological, archaeological, or historical features of the land or the area contiguous to the land or sea as may be specified in the order.
(c) Take such action to prevent the commencement or continuation or cause of environmental hazard.
(d) Cease to take any action which is causing or may contribute to causing pollution or an environmental hazard. (our emphasis)
18. The contents of an Environmental Restoration order must specify the following (Section 109(1) of EMCA)-
(a) the activity to which it relates.
(b) the person or persons to whom it is addressed.
(c) the time at which it comes into effect.
(d the action which must be taken to remedy the harm to the environment and the time, being not more than thirty days or such further period as may be prescribed in the order within which the action must be taken.
(e) the powers of the Authority to enter any land and undertake the action specified in paragraph (d).
(f) the penalties which may be imposed if the action specified in paragraph (d) is not undertaken.
(g) the right of the person served with an environmental restoration order to appeal to the Tribunal against that order, except where the order is issued by a court of competent jurisdiction, in which case the right of appeal shall lie with superior courts.
19. The Tribunal finds it necessary to reproduce the Environment Restoration Order here.
Dobs Entertainment Limited
P.O. Box 10030-80101
Re: Environmental Restoration Order for Excessive Noise Emissions from DOBS Entertainment Limited Located at the intersection of New Mombasa Malindi Road and Links Road on Plot No. MN/1/5070, Mombasa.
Following public complaints concerning excessive noise emissions from your facility and subsequent ground inspections done by Environmental Inspectors from NEMA established that indeed the concerns from the public were valid. Consequently, three meetings have been held in an effort of ensuring compliance of environmental management regulations in the last of such meeting held between NEMA officers, representatives of the complainants and yourselves it was agreed that you undertake a noise survey on top of instituting appropriate and suitable mitigation measures to ensure any music played within your facility is within permissible levels. It is also worth noting that your facility has been served with two (2) improvement notices dated 23rd January 2019 and 7th March 2019 respectively all requiring in part that you cease playing live band /music in the open.
On 4th April 2019, the authority received a noise survey report on your facility. On review of the report, it is very clear that the noise levels obtained are over and above the maximum permissible noise levels contrary to the provisions of Environmental management and coordination (Noise and excessive vibrations pollution control) regulations of 2009.
Your attention is therefore drawn to the following provisions and requirements of Environmental Management and Coordination Act (EMCA) Cap 387 of Laws of Kenya.
i) Part II of the Environmental Management and Coordination Act General Principles Section 3(1) states that ‘every person in Kenya is entitled to a clean and healthy environment and has a duty to safeguard and enhance the environment ‘
ii) Regulation 3(1) of the Environmental Management and Coordination (Noise and excessive vibrations pollution control) Regulations of 2009 states that except as otherwise provided in these regulations no person shall make or cause to be made any loud, unreasonable, unnecessary, or unusual noise which annoys, disturbs, injures, or endangers the comfort, repose, health or safety of others and the environment
You are therefore directed to:
i) Immediately stop playing music /live band from or at the open space within your facility.
ii) Immediately undertake appropriate and suitable mitigation measures (sound proofing) to ensure any music played within the facility is contained therein; and
iii) Submit a letter of commitment to the authority by 17th April 2019 to the effect that you will comply with the above requirements.
Further, NOTE that
Section 143(1) (a) of EMCA 1999 provides that any person who fails, neglects or refuses to comply with an Environmental Restoration Order made under the Act commits an offence and shall on conviction be liable to imprisonment for a term not less than one (1) year and not more than four (4) years, or to a fine NOT less than two million shillings and NOT more than Four Million shillings or to both such fine and imprisonment.
You have the right to appeal against this Restoration Order to the National Environment Tribunal (NET) if aggrieved.
Stephen W Kitunga
County Director of Environment
Cc Regional Director of Environment
20. The Tribunal finds that the Restoration Order issued by the Respondent is in line with Section 109(1) of EMCA) as it is addressed to the Appellant and outlines the specific action to be remedied and we shall elaborate this further in the foregoing paragraphs in this judgment.
21. The Appellant has raised the issue of procedural fairness and the Tribunal notes that, although EMCA does not prescribe the procedure for issuing a Restoration Order, the Respondent would be taking an administrative action when it issues such an order and must observe the provisions of Article 47 of the Constitution on fair
Administrative action. Article 47(1) and 47(2) provides as follows-
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.
(2) If a right or fundamental freedom of a Person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
22. Even without the requirements of the Constitution, there is an implied duty of fairness attached to all administrative Acts. If one needs support for this proposition, then it is found in Misc. Civil Application No. 769 of 2004 Republic –Vs- Attorney General & Another Exparte Waswa & 2 Oths , KLR 280 in which Nyamu & Ibrahim JJ (as they then were) said (at page 286)-
“We also associate ourselves with Lord Mustills holding in the case of Doody –Vs- The Home Secretary (HL 1993) that where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair.”
23. It is common ground that NEMA had statutory authority under Section 108 of EMCA to issue the Environment Restoration Order. This Tribunal finds that the Restoration order satisfies the requirements of Section 109 of NEMA as-
(a) It specifies that the activity targeted is the Noise Pollution.
(b) The Notice is address to The Proprietor, Dobs Entertainment Limited
P.O. Box 10030-80101, Bamburi Mombasa
(c) The Notice stipulates when the notice is to come into effect by requiring the Applicant to stop the activity with immediate effect.
24. The Tribunal notes that in the challenged notice of 10th April 2019, the Respondent observed that the Appellant continued to contravene the environmental rights of the residents by causing excessive noise. The documented evidence mainly the Improvement Notices, public consultation and letter dated 4th April 2019 demonstrates a history of considerable interaction between NEMA and the Appellant in which certain environmental breaches by the Appellant were discussed. There is evidence that NEMA had in the past issued Improvement Notices prior to the issuance of a Restoration Order and had held consultative meetings to address the environmental challenges caused by live band/Playing music in open space. On the evidence available, NEMA not only gave a hearing to the Appellant but had given it an opportunity to remedy the situation. It was against this backdrop that the Environment Restoration Order of 10th April 2019 was issued. That decision can hardly be said to be spontaneous and hasty.
25. The Appellant is under a continuous duty to address and rectify the harm and violations raised by noise pollution and as per the provisions of Section 109 (4) (c) “An environmental restoration order shall continue to apply to the activity in respect of which it was served notwithstanding that it has been complied with.”
26. The Tribunal further finds that the Appellant is not without a remedy. A review process is provided under Section 110(1) EMCA.
“At any time within twenty-one days after the service of an Environmental Restoration Order a person upon whom the order has been served may, by giving reasons in writing, request the Authority to re-consider the order.”
27. This gives the Appellant an opportunity to question the procedure used or the decision reached by NEMA. This is intended to enhance the Administrative fairness of the process because NEMA can re-look at its decisions at an early opportunity.
28. The Tribunal finds that the Respondent issued the Environmental Restoration Order in accordance with the provisions of EMCA.
Whether the Respondent’s decision was in bad faith, in breach of rules of Natural Justice and in excess of its powers?
29. Then there is the complaint raised that the issuance of the order breached Regulations 25 and 26 of Noise & Excessive Vibration Regulations. This is subsidiary regulation made under EMCA which empowers an Environmental Inspector to issue an Improvement Notice or a Closure Notice. Under those Regulations, the Environmental Inspector can only exercise this power with the Approval of the Director-General of NEMA. The order of 10th April 2019 was issued pursuant to Section 108 of EMCA. And although NEMA by virtue of Section 109 (3) of EMCA, may seek and consider any technical, professional and scientific advice which it considers to be desirable for a satisfactory decision to be made on an environmental restoration order, it is not bound to seek such advice and it is certainly not required to consult the lead agency. The prerogative is to be exercised by NEMA alone and not in consultation or conjunction with the lead agency.
30. The Tribunal has reached a decision that NEMA acted in conformity with procedural requirements of EMCA and the Constitution. It gave the Appellant a fair hearing and opportunity to take corrective action. When finally, it made the decision to issue the Environmental Restoration Order of 10th April 2019, it gave written reasons therefor.
31. A proponent served with a Restoration Order is bound to observe the contents of the order notwithstanding that it has been complied with or lifted following compliance, so the Appellant must adhere to the provisions regarding Noise and Excessive Vibrations, it cannot simply adhere to it in reaction to the order and then resume the very same breach once the order is lifted.
32. The Tribunal notes that there could not have been a legitimate promise made by NEMA that the lifting order would insulate the Appellant from all future breaches in respect to the matters specified therein or generally. According to (Wade & Forsyth, “Administrative Law” 10th Edition at page 450); “An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation.”
33. In the Supreme Court of Uganda, at Kampala Constitutional Appeal No. 05 Of 2011 Amooti Godfrey Nyakaana and National Environment Management Authority & Attorney General, Advocates Coalition for Development & Environment Alert Vs Greenwatch, Uganda Wildlife Authority Quoting the Environmental Action Network & Attorney General –Vs- Salvatori Abuki Supreme Court Const. App. No. 1/98,
“The principle applicable is that in determining the Constitutionality of legislation, its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining Constitutionality of either an unconstitutional purpose or unconstitutional effect animated by an object the legislation intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, the sense of the legislation’s object and ultimate impact are clearly linked if not indivisible. Intended and actual effect has been looked up for guidance in assessing the legislation’s object and thus its validity. See THE QUEEN –Vs- BIG DRUG MARK LTD 1996 CLR 332.”
The Petitioner is not challenging the Constitutionality of these restrictions. In my view, it is these restrictions which gave the first respondent power to carry out inspection on the petitioner’s property to ascertain whether the activities he was carrying out on the land was in conformity with the provisions of the section – hence the service of the Restoration Order. The restoration order is like a charge sheet that commences the prosecution of a person who is charged with a criminal offence. Normally a Police Officer does not give a hearing to a suspect before charging him or her. The purpose of the Act is to give the first Respondent power to deal with and protect the environment for the benefit of all including the Petitioner. The impugned sections in my view have in built mechanisms for fair hearing as enshrined in Article 28.”
In the same case the court went on and stated that; “The Petitioner failed to show that the safeguards contained in the impugned sections are insufficient to accord him or anyone else a fair hearing. I have not been persuaded that the Petitioner’s proprietary rights were infringed by the acts of the first respondent. What was taken away from him was misuse of the land and this was done to protect the environment.” The Court discussed the concept of sustainable development as it has evolved in international law and adopted the definition contained in the report of the WORLD COMMISSION ON ENVIRONMENT and DEVELOPMENT (the “Brundtland Report). That Report defined “Sustainable Development” as “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.” The Court stated thus: -
“We have no hesitation in holding that “sustainable Development” as a balancing concept between ecology and development has been accepted as part of the customary international law though its salient features have yet to be finalized by the international law jurists……………
We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development.” The “Precautionary Principle” – in the context of municipal law – means:
(i) The Environmental measures – by the State Government and the Statutory authorities must anticipate, prevent, and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The “Onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.”
34. In the same case, on “the Polluter Pays Principle” the court had this to say: -
“The “Polluter Pays Principle” as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “sustainable Development” and as such the Polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.”.
35. In the case of MPUNGU & SONS TRANSPORTERS LTD –Vs- ATTORNEY GENERAL, (SCCA NO. 17 OF 2001) the court had emphasized the cardinal nature of the right to fair hearing but also emphasized the need to put it into context. The court cited with approval the decision in RUSSELL –Vs- NORFOLK 1 ALL E.R. 109 wherein Turker, L.J, stated thus: -
“There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case. I think from first to last the plaintiff did have such an opportunity.”
36. The Tribunal finds that the Respondent did not act in bad faith, in breach of rules of Natural Justice and in excess of its powers.
37. The upshot of this determination is that the Appeal is hereby dismissed in its entirety.
38. Each party will bear its own costs.
39. Parties attention is drawn to the provisions of Section 130 of EMCA on their right to appeal this decision.
DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY, 2021
Mohammed S. Balala ……………………………………….………...….…Chairperson
Christine Mwikali Kipsang’ …………………………………………. Vice-Chairperson
Bahati Mwamuye ….…………………………………………………….……… Member
Waithaka Ngaruiya …………….………………………………………....….…. Member
Kariuki Muigua ……………………………………………………….………… Member