Analysis and Determination
10Upon consideration of the instant Notice of Motion Application including the Statutory Statement, respective Affidavits, annexures and rivalling submissions, the only issue for determination is whether the ex parte Applicants are entitled to orders of mandamus as sought.
11Lord Diplock in the case of Council for Civil Service Unions vs. Minister for Civil Service  A.C. 374, at 401D clearly set the standards of Judicial Review when he stated that:-Judicial Review has I think developed to a stage today when...one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’...By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it...By ‘irrationality’ I mean what can now be succinctly referred to as “Wednesbury unreasonableness’...it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it...I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.”
12While in the case of Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others Civil Appeal No 234 of 1996, the Court of Appeal highlighted circumstances under which a party can seek an order of mandamus, and cited with approval, Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 and stated thus:The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
13While Section 7 of the Fair Administrative Actions Act provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to— (a) a court in accordance with Section 8; or (b) a Tribunal in exercise of its jurisdiction conferred in that regard under any written law. Subsection (2) provides that a court or tribunal under subsection (1) may review an administrative action or decision on any of the grounds listed in the said Section.
14The ex parte Applicants have sought for orders of Mandamus seeking to compel the Respondent to enforce an order from the National Environment Tribunal NET No. 003 of 2019. I note Order (d) of the said Judgement of the Tribunal which forms the fulcrum of this suit, stated thus:If the Respondent (read NEMA) fails to carry out the measurements as ordered in (b) above, the Appellant shall be deemed to have complied with the Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009 and the Environmental Management and Co-ordination (Air Quality) Regulations, 2014 but the Respondent shall be at liberty to carry out further tests to ensure that there is compliance with the law.”
15The ex parte Applicants argue that the Respondent has failed to carry out the tests on the 1st Interested Party’s plant hence orders of mandamus should issue. The Respondent and 1st Interested Party argue that since this was a Judgment from NET, the ex parte Applicants who were Interested Parties in the NET appeal should have filed an Appeal to this Court instead of seeking orders of mandamus. The Respondent argued that Clause (d) of the orders issued at the Tribunal was a default clause that settled the matter in that if it failed to conduct the measurements as ordered, the 1st Interested Party herein would be deemed to have complied with the law. Further, conducting further tests was discretionary. It suggested that the ex parte Applicants should have filed an incident report from whence they would mount a fresh inspection and seek compliance. It insisted that the obligation for it to conduct the subject measurements lies with the owner or operator of facility as outlined under Regulation 52 of the EMCA, Environmental Management and Co-ordination (Air Quality) Regulations 2014. Further, that it is only mandated with monitoring the air quality by itself or through an agency as per Regulation 58 of the aforementioned regulations. It was of the view that principles of good environmental governance would not be promoted if it collected data and also reviewed the same for approvals.
16In the case of Director of Planning and Architecture County Government of Mombasa vs Makupa Transit Shade Ltd  eKLR, the Court of Appeal held thus:-…where there is an alternative remedy and especially where parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether a matter is exceptional, it is necessary for the court to examine carefully the suitability of the statutory tribunal appeal. In the context of a particular case and ask itself whether the statutory body had the powers to determine the issues at hand. It is common ground that the issue at hand in this matters was about physical planning and execution of a development plan regarding land reclamation. The issues were purely matters of land reclamation, planning and development that are covered under the Physical Planning act. For the foresaid reasons we are persuaded the respondent ought to have followed and exhausted the alternative mechanism provided by Parliament under the Physical Planning Act before engaging the High Court.”
17Further, in the case of Republic V National Environmental Management Authority Ex parte Hakika Transport Services Limited  eKLR the court held, inter alia:‘‘Prayer (d) is a request that this Court issues an order of mandamus to compel and/or direct the Respondent to renew and or re-issue an Environmental Impact Assessment Licence or authority to the Applicant. The law gives NEMA the discretion to issue, revoke, suspend or cancel an Environmental Impact Assessment Licence (Sections 58 and 67 of EMCA). Of course that discretion must be exercised within the dictates of the law. However, the discretion is with NEMA and an order of mandamus cannot be issued to command or compel it to reach a specific decision or carry out the discretion in a specific way.’’
18In the current scenario, the ex parte Applicants seek to compel NEMA to carry out the tests as indicated in the impugned Judgment from NET. From a reading of the Judgment whose excerpt I have cited above, I note the orders NET issued were discretionary. Further, they were issued about two years ago and the ex parte Applicants have not explained the current situation as pertains to the plant. To my mind, I find that the ex parte Applicants have failed to demonstrate how there was procedural impropriety by NEMA to exercise its discretion and test the emission or noise pollution. Further, they have not indicated if they filed a complaint in respect to noise pollution and emissions but NEMA failed to act.
19Regulation 52 of the EMCA, Environmental Management and Co-ordination (Air Quality) Regulations 2014, provides that:(l)A person, owner of operator of a facility listed under the Fourth Schedule shall ensure that measurement of emissions and occupational exposure levels are carried out in accordance with the methods of test set out in the Eleventh Schedule.(2)The analysis of all measurements in paragraph (l) above shall be carried out by laboratories designated by the Authority.”
20From a reading of this provision, I note it is actually the owner or operator of a facility who is obliged to undertake subject measurements which is in dispute herein.
21While Regulation 58 of the EMCA, Environmental Management and Co-ordination (Air Quality) Regulations 2014, stipulates that:The Authority may monitor ambient air quality or request a relevant lead agency to undertake the monitoring on its behalf.”
22From this legal provision, it is clear that the Respondent is indeed mandated with monitoring the air quality by itself or through an appointed agency. From the arguments of the ex parte Applicants, I find that they have failed to demonstrate which public duty the Respondent failed to undertake. Further, I note the decisions from NET are appealable to this Court and the Applicants have not indicated if they did so. I opine that since the orders of the Tribunal were discretionary as there was no order compelling the Respondent to carry out any tests, an order of mandamus cannot issue.
23Based on the facts as presented while associating myself with the decisions cited above, I do not find any omission or commission on the part of Respondent as set out in EMCA that warrants an order of mandamus. I further do not find any ‘irrationality’ or ‘unreasonableness’ on the part of the Respondent nor that it failed to observe basic rules of natural justice to warrant the orders as sought.
24In the foregoing, I find the Notice of Motion Application dated the 2nd June, 2022 unmerited and will proceed to dismiss it.
25Each party to bear their own costs.