Kimani & another v National Environment Management Authority & another (Tribunal Appeal 29 of 2021) [2024] KENET 361 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KENET 361 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 29 of 2021

Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair, Duncan Kuria & Ronald Allamano, Members

February 29, 2024

Between

Esther Wangeci Kimani

1^st Applicant

Richard Kimani Kariuki

2^nd Applicant

and

National Environment Management Authority

1^st Respondent

Bedarin Hotel Limited

2^nd Respondent

Ruling

1.Before the Honorable Tribunal is the Applicants’ Application dated 11^th December 2023 seeking inter alia that the Tribunal alters, varies, sets aside or reviews the orders issued on 4^th April 2023. The Application is supported by the joint affidavit of the Applicants sworn on the same date.

2.Despite being served with the application, the Respondents did not file any response. We will, therefore, proceed on the premise that the Application is unopposed.

3.We note that the Applicants are seeking to review the Tribunal orders issued on 4^th April 2023, through which the Tribunal vacated its injunctive orders issued 10^th March 2023. Notwithstanding there are no express provisions conferring the Tribunal with the power to review its decisions, the Tribunal has on numeral occasions held that it has the jurisdiction to review its orders. One such decision is Wemali Benson & 3 others v National Environment Management Authority (NEMA) & another [2020] eKLR, where the Tribunal held as follows:‘The Tribunal, in its course of dispensing justice, makes numerous orders, some of which are reviewed in the course of the hearing of matters. Whereas the NET Rules do not have a Rule similar to Order 45 of the Civil Procedure Rules, section 129 (3c) provides some leeway to make decisions that may guide the dispensation of justice. It would be a legal absurdity for the Tribunal to find that it cannot review its decisions, including errors that may be apparent on the face of the record or any other orders in the course of taking proceedings and instead ask the parties to proceed on appeal. The purpose of existence of the Tribunal is to save on time, resources, formalities and to make justice more accessible to all and sundry. A finding that the Tribunal cannot review its own decision would be an erosion of the purpose of existence of the Tribunal.’

4.We note that the Applicants contend that since the injunctive orders were discharged, the 2^nd Respondent has been playing loud and unreasonable sounds, which is a nuisance to them. In support of this assertion, the Applicant has filed an Environmental Noise Monitoring Report prepared by Ecoserv Consultants Limited showing that high noise levels are being recorded, which can cause annoyance, disturbance, and sleep deprivation.

5.We find the above conduct by the 2^nd Respondent to violate the Applicants’ right to a clean and healthy environment guaranteed under Article 42 of the Constitution of Kenya. The right to a clean and healthy environment is bestowed on every person and has been considered by the courts and eminent authors to be essential for the existence of mankind. In Adrian Kamotho Njenga vs Council of Governors & 3 others [2020] eKLR, it was held that:‘Article 42 of the Constitution guarantees every person the right to a clean and healthy environment and to have the environment protected for the benefit of present and future generations through the measures prescribed by Article 69. The right extends to having the obligations relating to the environment under Article 70 fulfilled. Unlike the other rights in the bill of rights which are guaranteed for enjoyment by individuals during their lifetime, the right to a clean and healthy environment is an entitlement of present and future generations and is to be enjoyed by every person with the obligation to conserve and protect the environment. The right has three components: the right itself, the right to have unrestricted access to the courts to seek redress where a person alleges the right to a clean and healthy environment has been infringed or is threatened; and the right to have the court make any order or give any directions it considers appropriate to either prevent or discontinue the act harmful to the environment, or compel any public officer to take measures to prevent or discontinue the act that is harmful tothe environment or award compensation to any victim of a violation of the right to a clean and healthy environment.”

6.In view of the foregoing, it is our finding that the violation of the Applicant’s right to a clean and healthy environment is a sufficient reason to warrant the Tribunal to review its orders. Consequently, the Applicants’ Application dated 11^th December 2023 is allowed in the following terms:a.The order issued on 4^th April 2023 vacating the injunctive orders issued on 10^th March 2023 is hereby set aside.b.The injunctive orders issued on 10^th March 2023 are hereby reinstated.c.Each party to bear their own costs.

DATED AND DELIVERED AT NAIROBI, THIS 29^TH DAY OF FEBRUARY 2024EMMANUEL MUMIA - CHAIRMANWINNIE TSUMA - VICE-CHAIRDUNCAN KURIA - MEMBERRONALD ALLAMANO - MEMBER

Kimani & another v National Environment Management Authority & another (Tribunal Appeal 29 of 2021) [2024] KENET 361 (KLR) (29 February 2024) (Ruling)

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