After observing these preliminary matters the main issue I see in this case is that for the applicants to show a prima facie case
they ought to show that what the Defendants are proposing to do is unlawful. Injunction cannot be applied to restrain what is lawful.
That seems to be the [text omitted]
The Defendants have shown that whatever they have done has been under licence properly issued in accordance with the provisions of
Mining Act Cap 306 of the Kenya Laws and when they came to do what is yet not done they will likewise have to be licenced and there
is no evidence that they are threatening to act outside the law. They have also submitted researched professional Environmental Impact
Assessment Report under Section 58 of the Environmental Management Co-ordination Act No. 8 of 1999 under that Act. Everybody that
intends to do anything under second schedule to the Act inclusive of mining, quarrying and open cast extraction of precious metals,
gemstones, metalliferous ores, coal, limestone, dolomite, stone and slate, aggregate sand and gravel, clay, exploration for the production
of petroleum in any form and extracting alluvial gold, with use of mercury and processing of minerals reduction of ores and minerals,
smelting and refining of ores and mineral etc. before such undertaking submit a project report to the National Environment Management
Authority in the prescribed form then the proponent of the project is to submit an Environmental Impact Assessment study and report
to enable the authority to determine the effect and impact of the project on the environment. It is an offence punishable with 24
months imprisonment per Section 138 of the EMC Act No. 8 of 1999 not to do so.
It is the Defendants case that it has prepared and submitted its contents to the authority but the authority has not replied. Under
Section 58(9) if Director General fails to reply in 3 months then the applicant may start his undertaking not withstanding but this
may need circumspection.
The Defendants/Respondents have not shown that they have submitted their project report and their Environmental Impact Assessment
report. They displayed the EIAR but no evidence of Project Report, which does appear to be prerequisite to the submission of the
assessment report. It may be the reason why the defendant has not taken up the liberty under Section 58(9) to proceed with the project
unilaterally.
If the Defendant has not fulfilled the requirements of Section 58 of EMC Act 8 of 1999 then it is immaterial that it is licensed
under Mining Act Cap 306 because Section 58 of the same EMC Act Cap 8 of 1999 provides that:
"58(1) Notwithstanding any approval, permit or licence granted under this Act or any other law in force in Kenya, any person,
being a proponent of a project, shall, before financing, commencing, proceeding with, carrying out, executing or conducting or causing
to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the
Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information
and which shall be accompanied by the prescribed fee.
Proponent must comply with Section 58 of EMC Act. But even had this not been provided, I would hold it as a matter of statutory interpretation
that the EMC Act No. 8 of 1999 being a more recent Act must be construed as repealing the old Act where there is inconsistency.
If the Defendant has obeyed the terms of the Mining Act Cap 306 as it appears can his acts be avoided by the later Act? In this case
the Defendant has in effect acted as though on the later Act but has equally complied with the old Mining Act Cap 306 but where it
conflicts with EMC Act 8 of 1999 I think EMC Act 8 should prevail. Two judicial pronouncements (one local another English) strengthen
my view here:-
"that where the provision of one statute are so inconsistent with the provisions of a similar but later one, which does not expressly
repeal the earlier Act, the courts admit an implied repeal."
It is not possible to read compliance in the old Mining Act Cap 306 when it is an offence in the later EMC Act No.8 of 1999 to fail
to submit approved Impact assessment report. The two Acts cannot stand together unless the sections of the later Act are made to
prevail over those sections of Cap 306 that are parallel to the new Act. Those that sanction what the new Act condemns are to be
regarded as repealed.
In the Kenyan decision of Harris J. in KARANJA MATHERI V. KANJI [1976] KLR 140 the Judge after finding that Land Control Act (Cap 302)
was passed on 11.12.1967 and came into operation on 12.12.1967 and that Limitation Act (Cap 27) was passed on 19.4.1968 and by Section
1 was deemed to have come into operation retrospectively on 1.12.1967 said;
"Accordingly, the later of the two Acts came into operation first a factor which must in the application of the principle of
interpretation that in the case of conflict, the later two statutes in date of enactment may be regarded as constituting an amendment
of the earlier...."
I think the position now with regards to the interpretation of the entire Cap 306 is that where it is inconsistent with Act No. 8
of 1999 the later Act must prevail.
Section 58(2) of EMC Act 8 of 1999 states:
"The proponent of a project shall undertake or cause to be undertaken at his own expense an environmental impact assessment study
and prepare a report thereof where the authority being satisfied after studying the project report submitted under sub-section 1,
that the intending project may or is likely to have or will have a significant impact on the environment so directs."
(3) The environmental impact assessment study report prepared under the
sub-section shall be submitted to the authority in the prescribed form giving the prescribed information and shall be accompanied
by the prescribed fee."
Section 59 provides that the authority after being satisfied as to the adequacy of an environmental impact assessment study evaluation
or review report, issues an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary
to facilitate sustainable development and sound environmental management.
It is imperative that a project like the Kwale project where the effect of uranium and titanium a radioactive mineral whose effects
to environment does affect not only environment but health ought to pass through evaluation stated in EIA is stated elsewhere as
"The EIA is a structured process for gathering information about the potential impacts on the environment of a proposed project
and using the information, along side other consideration to decide whether the project should or should not proceed, either as proposed
or modifications."(See Confirmation of Judicial decisions on matters related to environment National Decision Vol.1 pp 78)
The EMC Act describes it as follows:-
Section 2
"environmental impact assessment" means a systematic examination conducted to determine whether or not a programme, activity
or project will have any adverse impacts on the environment;"
Section 58(5)
"Environmental impact assessment studies and reports required under this Act shall be conducted or prepared respectively by individual
experts or a firm of experts authorised in that behalf by the Authority. The Authority shall maintain a register of all individual
experts or firms of all experts duly authorized by it to conduct or prepare environmental impact assessment studies and reports respectively.
The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee."
Although the Respondents say they had submitted EIA this is not clear because if they had then they would have started the project
after 3 months of DG failing to respond (see Sections 58, SS. 8 and 9 of EMC Act No.8 of 1999) but this can only be done if they
had submitted "a project report." Their failure to take advantage of the action granted in the Act creates a reasonable
presumption that they have not submitted the correct Report timeously.
Submission of both Project Report and Environmental Impact Assessment is crucial and failure to do so is a criminal offence under
Section
138 of the Act. Without delivery of these studies any project that affects environment like the present mining project cannot be
assessed. Its potential danger can be as vast and as gruesome as can be imagined nor can it be positively contained within principle
of sustainable development. In fact without these assessments the project is against that principle of sustainable development as
it was argued that this project is an investment and is beneficial, but this is not near to saying that no changes can be made on
environment. Yet sustainable principle in the law of environment means not having less economic development, or preserving environment
at all cost but what is required is as it was as stated by LEESON in "Environmental Law" a Text Book, that:-
"What it does require is that decisions throughout society are taken with proper regard to their environmental impact."
The writer further states that conservation of natural resources extends beyond the immediate environment to global issues so that
principles to be observed such as –
(a) Decision to be based on the best possible scientific information and analysis of risk.
(b) Where there is uncertainty and potentially serious risks exist, precautionary measures may be necessary.
(c) Ecological impacts must be considered, particularly where resources are none renewable or effects may be irreversible
(d) Cost implication should be brought home directly to the people responsible in the polluter pays principle, are considered in the
Report because such assessment and interrelation of a ray of disparate factors require the evidence from EIA to support a sound judgment.
A case based on facts that support any project without that assessment cannot be able to qualify in Giella Vs. Cassman Brown Ltd.
test. The issue of Damages compensating anyone does not arise because environmental damage is not only an individual loss but intrinsic
in the globe. Although the principle of polluter pays may be argued in aid of the second principle of Giella Versus Cassman Brown
Ltd. but again without EIA it cannot be assessed.
The implication of the phrase is that the cost of preventing pollution or of minimising environmental damage due to pollution should
be borne by those responsible for the pollution, but that does not guarantee that payment will be adequate. There are some environmental
damages that are irreversible, again you need EIA to make a determination on that.
But Environmental cases arise from disparate problem and sources.
They are unique and in most cases novel, there are no recognised general principles of application, except that with time this will
logically follow with sophistication of application, but for now courts must apply what is provided for under Section 3 of EMC Act
8 of 1999 and although elements of the common law are of application such as injunction laws tort and criminal law, the environmental
statute has provided certain statements of principles which I believe in a purely environmental case like this one needs to be considered
for application if necessary in conjunction or if appropriate in exclusion of old principles. Here I rely on the old principles in
conjunction with the statutory principles I am enjoined to take into consideration.
Those general principles described in the Act fall into two categories without being distinct. On the book of ENVIRONMENTAL LAW by
John DLeeson [talking of a similar English statute] page 34 the writer states:
"On the one hand there is the predominantly environment centered view where remedying the pollution or preventing its occurance
is the primary aim. This category includes the concepts (like) "the polluter pays" and sustainable development. The second
approach is centred more on the economic and/or technical practicality of any remedy. Within this category are to be found "best
practicable means, and best available techniques not entailing excessive cost."
So regarding the first principle of polluter pays, it is necessary to use the term to cover obligation on any person to conduct their
affairs in an environmentally sympathetic fashion .. anyone conducting activity ought to be aware of and accept responsibility for
the environmental consequences of that activity, with regards to sustainable development. Constructive view of the phrase should
be development that meets the needs of the present without compromising the ability of future generation to meet their own needs,
(hence intergenerational equity and intragenerational equity). For the best practicable means one would like to consider whether
one has or can do what is practicable in terms of prevention or reduction where the Defendant has discharged the obligation bestowed
on him the nuisance or pollution may be allowed to continue."
Again LEESON adds in the same book,
"The application of this principle to existing activities precludes cessation of the business or process because of its environmental
impact ... The definition and interpretation of the phrase is therefore important in determining the extent of the obligation to
remedy and the consequent degree of pollution permitted in a particular situation."
On consideration of these principles in an environmental case it is not advisable exclusively apply simpliciter the old principles
of injunction because whereas activity may be objectionable and ought to be stopped by injunction yet applying the principle in the
statute of best practicable means, it would be still a defence under the Law of Environment that the defendant has done what he can
practically do to prevent and or reduce the nuisance or pollution and may still continue with the activity in a manner not resulting
in cessation of the objectionable activities because of its environmental impact.
In my judgement I would say that the breaches of Environmental statute should be looked at without exclusive trappings of equity
in applying the law of injunction under Environmental Management and Co-ordination Act No.8 of 1999 but to apply them with close
adherence to what the Statute Law prescribes. Section 3 prescribes general principles of application by the court in adjudicating
over this kind of case. First the court is given wide discretion to make such orders by issuing such writs or give such directions
as it may deem appropriate including an order to restore the degraded environment.
In normal traditional consideration for INJUNCTION the Giella Vs Cassman Brown & Co. Ltd. (1978) EA 358 one has to prove that
his legal rights has been unlawfully invaded. Here he does not need to show all that, because under the EMC such person whose rights
would be prejudiced, under Section 3 of Act 8 of 1999 any one.
"Shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendants acts or omission
has caused or is likely to cause him any personal loss or injury provided that such 20 action is not frivolous or vexatious, or is
not an abuse of courts process."
That is a departure from the application of Giella Vs Cassman Brown because here he may not be having any material legal right."
Here the court is to be guided by principles of public participation, cultural and social principles and principles of international
co-operation, principles of intergenerational and intragenerational equity, Polluter pays principle and precautionary principles.
ENVIRONMENTAL IMPACT ASSESSMENT REPORT is a requirement of law under Section 58 of EMC and is important. The establishment of any
undertaking or works that interrupts nature in any way always possesses certain inevitable forms of impact on its surrounding so
it is by studying the report when it is possible to assess their effect and therefore determine whether the project should be determined,
allowed or stopped or be raised. The purpose of E.I.A. is to enable resolution to be made on known facts regarding environmental
consequences.
In USA the Supreme Court there has adopted the approach, that what is to be proved is mere breach of the statute. In the case of
ATCHISON TOPEKA & SANTA FE SAILWAY CO. V. CALLAWAY 392 F. Supp. 610 (DDC 1974)420 US 908, 95 Sup ct 826 (1975). The court has approved granting of an injunction without a balancing of the equities in order to give effect to declared policy of
Congress embodied in legislation. And in the case in the United States District Court for the District of Columbia Civil Action No.
75 - 1040 SIERRA CLUB NATIONAL AUDIBON SOCIETY: FRIEND OF THE EARTH INC. INTERNATIONAL ASSOCIATION OF GAME FISH AND CONSERVATION
COMMISSIONERS VS WILLIAM T. COLEMAN JR. NORBERT TIEMANN.
The court said:-
"A number of courts have previously considered the requirment for a preliminary injunction in the case of an alleged deficiency
in compliance with NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) 42 USC para 4321 which is equivalent to our (Environmental Management
and Cordination Act No.8 of 1999)
The court said:-
"That this court agrees that when federal statutes have been violated it has been a long standing rule that a court should not
inquire into the traditional requirement for equitable relief."
In this USA case the court found that the Defendant (developer) (Federal Highway Administration) had made 3 breaches In complying
with NEPA requirements. [Similar to our EMC] The court found that they started building Highway before decision is taken on statement
were began when such ought to have been made only after decision makers had fully adverted to the environmental consequences of the
action. In this case the Defendant has started work without submitting a project report to the authority. Secondly it has not presented
to the satisfaction of the authority an Environmental Impact assessment report against Section 58 of the EM &C.
So the question to be asked is what environmental factors has the proponent of the project taken into account? None. This is crucial
because in making a decision on environmental case as herein the court is to be concerned. NOT so strictly with harm to the environment
but rather the failure of decision makers to take environmental factors into account in the way Environmental Management and Coordination
Act No. 8 of 1999 prescribes. (Particularly that Environmental Impact Assessment Report.) Therefore even if one relied on the principle
of Giella Vs. Cassman Brown a case would still be made out.
As for balance of convenience it is admitted that environmental degradation is not necessarily individual concern or loss but public
loss so in a matter of this kind the convenience not only of the parties to the suit, but also of the public at large is to be considered
so that if the injunction is not issued it means that any form of feared degradation, danger to health and pollution will be caused
to the detriment of the population, whereas if I do not REFUSE injunction only the investor will be kept at bay but life will continue
for the population safely without risk.
It is better to choose the latter other than the former.
A court has in applying the principle of balance of convenience to take into account consideration of the convenience NOT only of
the parties but also of the public at large.
At this stage not all the facts are in and final decisions cannot be made, but on the balance of probabilities I think the applicants
have made a case for injunction which I hereby grant with cost to them.
Delivered this 21st day of September, 2001,
A. I. Hayanga
JUDGE
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