GAZETTE NOTICE NO. 8717

IN EXERCISE of the powers conftrred by section 3 (15) of the Transport Licensing Act, the Transport Licensmg Board ddegates to the Registrar of Motor Vehicles and to officers mandated by the Registrar. the power and authorit! to grant short-term licences and to renew Iicences of commercial vehlcles whose telre weight exceed 3048 kg. and a1l public service vehicles. ThiF delegation should be exercised in line with the road safety requirements and may be revoked or withdrawn if not executed within the àmbit,i of the law or within the provisions of road safety regulations or according to the conditions attached to licensing of vehicles falling within thé categories. Dated the 7* December, 2005. Peter Obonyo Mmcha, Beverly KimechFa, Beatriçe Bisongw Ioseph Njunge Mathu. as licensing officea. Dated the 7* December 2005. H. A. M. OLE KAMWARO, Chairmaw Transport Licensing Solrtf- GAZETTE NOTICENO. 9947 IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NMROBI TRIBUNAL APPEAL NO. NET 01/02/2005 IN THE MAUER OF NAKUMAU HOLDINGS LukMll'Eln--lAppellant) VERSUS NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY-VIXI Respondent) GREAT PROPERTIES LIMITED-VZ?W ResponVent) RULmG BY letter dated 16tb February, 2005. tlle Appellant appealed against the 1st Respondent's approval of the E.I.A. Project Report submitted by the 2nd Respundent in support of its application for an E.I.A. licence for the development of a housing estate to be known as Eagle Plains Housing Esute on plot L.R. No. 209/10829, Nairobi. The land on which the estate is proposed to be developed adjoins the headquarters of the Appdlant and lies in an area off Mombasa Road. Prior to seeking an E.I.A. licence the 2nd respondent had commenced construction of the project, apparently unaware of the requirements of the Environmental Management and Co-ordination Act, 1999, but on being informed of the need for an E.I.A. licence it stopped construdion. - - ne 1st Respondent's approval, which led to this appeal, had been communicated by letter dated 3rd February, 2005, following the submission by the 2nd Respondent of an E.I.A. Project Report. Consequently, the 2nd Respondent was not required by the lst Respondent to carry out a full E.I.A. Smdy. The Appellant's objection was that the proposed residential project would not be in hanndny with the existing mdustries sunoundinj thr plot, of which the Appellant's activity is one. The Appellant clalmed H. A. M. oLE KAMWARO, Chairman, Transport Licensing Board. GAZE'ITE NOTICE N0. 9946 TIlE TRANSORT LICENSING ACT Lcap. 404) APPOINTMENT OF LICENSING OFFICERS k d b section 3 (16) of theIN EXERCIS of tlte porers conferre y Transport Licensing Act, the Chairman of the Transport Licensing Board appoints- Samuel Ligare Lichunj u, Samwel Oduwuor Agutu, Pricilla Wanjiku Muttmdu, Hannah Nyambia Ngahu, Charles M. Kisilu, Charles Ombongi Osoro, Lucy Wahito Wachira. Said Osman Mohnmmed, Edward Kimulu Kisingo, Kunnetli Ambundo Amanya, Josephine Nalîanya Mathu, Nancy Chesang Rono, 3028 THE KENYA GAZEWE 9th December, 2005 that air pollution levels in the are,a are higher than the WHO standards ' for long term human exposure and that the heavy traffic density and 24 lwur industrial operations prodœe higll noise levels for a resitkntial development. In addition the Appellant argued that the proposed develoyment, which was a proposal to construct a 350 unit llousing estate mside an area in which no less than 13 industries were located, was Tçout of chmcter with its surroundings.'' Consequently. it could not be apyrove.d on tlle basis of the Project Report alone, and require,d a full Envlronmental Impact Assessment Smdy. ne Appellant objected to the decision by the 1st Respondent not to reequire the 2nd Respondent to carry out a full E.I.A. Study. Among the key benefitq which the Appellant saw as arising from tlle conduct of a 111 E.I.A. S. mdy prior to a decision whether or not to grant an E.I.A. licence was the opportunity whicll it would qrovide to mtendally affected parties, such as tàe Apjellant, to air thelr views in tlle contexi of public consultation, which ls a mandatory requirement of a full E.I.A. Study. ne Appellant argued that in approving the project on tlle basis of a Project Repqrt alone, the 1st Resmndent had denied the Appellant an oppollumty to provide comments. The Appellant subsequently took the josition, however, that even if a full E.I.A. Study lmd been conducted, lt would not materially have affected the Appellant's objecdon to tllis project. The Tribunal heard tlle matter on three occasions between 23rd June, 2005 and 28th July, 2005. A total of four wimesses testified. The Appellant called Dr. Iacob Kibwage, its E.I.A. Ctmsultant to give evidence. The 1st Respondent called to jive evidence, Maurice Mbegera its Director of Compliance, who ls responsible for E.I.A. licensing, while 2nd Respondent called Hellen Nzainga (MrF.), the E.I.A. consultant who had led the preparation of the E.I.A. Reqort as well as lumnn Makopa, tlte Associate,E.l.A. expert, responsible m this case for studying the air quality, noise levels and water quality implications of the promsed project. The Tribunal also visited the site of tlle proposed project on 29th July, 2005. Final submissions were heard 'on 3rd August, 2005. '' In evidence the Appellant faulted tbe E.I.A. Project Report on tlle ground that it had proceeded on the basis thpt the only relevant consideration was the qotcntial impact of the project on the environment in the' area ln which the proposed project was to be lecated. On this basis, the Report had come 'to the conclusion that there were no gotenéally signiscant adverse impacts which the project was likely to mflict on the environment in its locality that could not adequately be mitigated. In the Appellant's view, this was completely the wrong premise on which to have proceeded. What the E.I.A. team should have done, in the Appellant's view. was to look at the potentiàl impact on the proposed project of the environmmt ill the locality. Had they done so, they would have realized that all area with industrial actwities, and allegedly high air and traffic noise pollution levels, the yerceived risk of explosions arising from the manufacture of gas cyllnders, possible danger from the malmfacmre of vaccines thought to be going on in the vicinity, and radiation arisirs from mobile yltone transmitters located nearby, was pot an approp 'nate area in whlch to locate a major residential estate. But because the E.I.A. Study team had not approached the matter in this way, they had not found it necessazy to collect the relevant data that would have demonstrated the inappropriateness of this location for the proposed project. The witnesses for the Respondents defended the decision to grant Th d thàt the'approval on tlle basis of the Project Report alone. ey argue area in wllich the project was to be located is designated in the physical planning laws as zone 9, in which both light industrial and resldential develoypent are allowed. They pointed out that the relevant regulatory authontles, including tlle Ministry of Lands and the Citj Council of Nairobi, had granted the required pennits for tlle proqosed develoyment. They soulht to inkoduce in evidence a document tëed; RA Gulde of Nairobi .C1ty Development Ordinances and Zones'' but this was resisted by tlke Appellant for tlle reason, among others, that it is merely a draft document whose authenticity i: uncertain. ne . witnesses further gave evidence of actual mjxed developments that are to be found in the area iil question, among them residential estates, a hotel, go-downs, other commercial establishments and also Iight indusGes. During the hearing of the matter it was said and admitted by the Appellant's witness, Kibwage (Dr.), tlmt the primary reaso!t which led the Appellant to object to this proposed development was the concern that the proposed development would introduce a conflict between the commercial activities carried out by the Appellant within its premises and the use of neighbouling propeny for residential purposes. The Tribunal findings on the pertinent issues arising are set out below. ne purpose of the E.I.A. licensing process as prescribed by Part VI of the Environmental Management and Co-ordination. Act of 1999 and the Environmental (lmpact Msessmtnt and Audit) Regulatipns, Leml Notice No. 10l of 2*3, which are made thereunder is to assess the likely significant impaèts of a proposed project on the environment. In deciding o: tlze nature of likely impacts, account must be taken of the status of the environment within which the proposed project will be undertnkeil. Consequently, tlle levels of air pollwtion, traffic noise and other features of the environment in the area off Mombasa Road on which this proposed development is to be carried out are relevant considerations. The status of that environment is not determined by the fact alone tlmt tlle %e,a is designated as an industrial area, or even as an area for mixed development. Since the Tribunal is not sitting on appeal on the decisions of the physical plnnning authorities, such a designation, if it exists, is only indicative of the nature of environmental considemtions that might arise. Wlmt is critical for these prœeedings is to ascemin the actual stattu of tlle environment in tlle locality . $ 8n e evidence that *as adduced showed that the quality of air, the level of traftk soise and the quality of water and otil. er features of the environment in the locality are within internationàlly recommended limits for areas used for human habiution. For this purposé', in the absence of statutorily prescribed limits, Kenya relies on World Healt,h Orlanization standards. The claims by the Appellant's witness that resldence within tllis locality would expose those living in tlle proposed estate to serious health risks on account of the high levels of pollution in the areea were not substantiated by credible evidence. ' The Tribunal also t'inds that no evidence adduced' by the Appellant's wimess or anyone else showed that this project would adversely impact on that environment in ways that çould not be midgated by the measures 'that had been proposed by the project proqonent in the E.I.A. Project Report. In addition to tlle proposed mitlgatory measures, the 1st Respondent and other regulatory authorities can resort to provisions available in the Environmental Management and Co-ordination Act of 1999 and other laws, among them, the requirement for regular environmental audit, to require that the activities being carried on in the area within which the proposed project is to be located do not cause unavoidable environmental degradation. Accordîngly; tllere are mechanisms in place for managing the potential adverse environmental impacts that might arise from this projed. Further, before taking the decision, the 1st Resyondent had consulted leading alencies as well as a number of potenually affecte,d neighbours, includlng the Appellant. The Tribunal noted that the Appellant's views had been communicated to the 1st Respondent by letler dated 18t11 November, 2004, which was written on its behalf by Kibwage (Dr.). ne Appellant's argument that in not requiring a full E.I.A. Study interested parties had been denied an opportunity to provide comments on the proposed project is thus not sustainable. Therefore, the Tribunal flnds that the lst Respondent was justified in approving the proposed project on the basis of the Project Report alone. Consequently, the Tribunal rules that the Appcllant's appeal against tlxe 1>t Respoldent's approval of the E.I.A. Project Report fails. Tlle Appellant pointed to a number of technical irregularities in tlle Project Rejort, among them the failure to date tàe Repom tlle failure to show evldence that the form of submission of the Repgrt was signed by the project proponent, and the inclusion in the Prolect Report of matters, which in the Appellant's view, went beyond the requirements of the Environmental (Impact Assessment aRd Audit) Regulations 2003 (L.N. No. 101). The Tribunal notes thpt the same Project Report to which the Appellant objected fonne,d the basis of dlese proceedings, including this Appeal and the acuons tllat had becn tyken by the respondents. ' The Tribunal is of tlle view tbat thege irregularities do not vitiate the decision taken by the 1st Resgondent on the central issue, that is, that the develojment of a residentlal estate in the proposed location is not likely to lntroduce significant adverse environmental impacts which cannot be mitigated through appropriate measureg, such as those proposed in the E.I.A. Project Report. ' ne Tribunal therefore unanimously fmds that the Appeal fails and directs tlmt: (J) The Stop Order issued by the Triàunal on 9th May, 2005, by letter ref: NET/APLS/I/I/VOL. (1) be and is lifted. :9th December 2005 TIIE KENYA GAZERVE 3029 fbj NEMA is at liberty to issue an E.I.A; licence yo the 1st Respondent as prayed. ne Tribunal was asked by the Parties to award costs. ne Tribunal fmds tllat the Appeal was well founded' and is not frivolous . In making this fmding the Tribunal llas not overlooked the fact tllat the Appellant had objected to this projem mainly Ixcause of its concern tlmt a large residential estate next to its commemial headquarters would introduce a conflict with the Appelhnt's activitiis Gipg carried out next to that locauon. Despite this, the Ajpeal raise,d reàl issues falling witlu'n the jurisdidion of 1is Tribnnn', ln parucnlnr whether the gropose.d project should not be licensed for Ving out of clmracter with 1t.s sunoundings. For this reason, the Tribunal rules that, in accordance with rule 39 of the Nadonal Environment Tribunal Rulès, Legal Notice No. 191 of 2*3, each party shall bear its own costs. Tlle Tribunal notes that licensing this activity in no way takes away the rights of the parties under the geneml Iaw to seek a remedy in nuisance should any of the licensed activities be carried out in a mnnner which would be Rmediable under the law of nuisance. nis is the essence of tlle decision in Wheeler 1 Another v. J Saunders Limited (1995) 2 A1l E.R, 697, to wbich tlle Tribunal was rderred. Neither does such Iicensin! restrict the powers of the regulatory authorities to control adverse lmpacts, if any, of such activities. . The Tribtmal draws the attention of Parties to tlle prokisions of se'dion 130 nf the Environmental Management and Co-ordinauon Act , 1999. 'lME ADVOCATES (ADMISSIOm REGULATIONS (L#. 357 of 1997) ADMISSION PURSUANT to regulation 17 of the Advocates (Admission) Regulations, it is notilied tllat the following thirteen (13) persons- Adan Fatuma Abdulkadir, Amadi Eddy Jatianga, Chepkwony Rose Chepkemoi. Etemesi lames Luka, Gachui Iune Audrey Kathoni, Odhiambo Samuel Booker, Ombwayo Andrew Onguka, Onkoba Mogire, Otieno Elizabeth Mary, Owiti Martha Akoth, Tanui Aaron Kdpleting, nuita Fredrick Guandaru, Wachira Michad Gacanja, lmve complied with the provisions of section 13 of the Advocates Act as to yupilage and the passing of examinations subject to such exemptlons as may have been granted' under subsection (2) of the secdon. Finally, the Tribunal expresses its appreciation to 0. K. Odera, Counsel for the Appellant, Anne Angwenyi (Ms.) who appeared on behalf of the 1st Resgondent, and Adll Khawaja and Gitonla Murugm, Counsels for tlle 2nd Respondent for the diligent mazmxr in which they conducted the matter. Dated the 12th August 2*5. DONM,D KAMARU, Chairman. MBERT MUMMA, STANLEY WAUDO, J ANE DWA ,Sl JOSEPH NJIIIIA Mentbers. Dated the 2nd D=mber. 2*5. W. KULUNDU-BITONYE, Secretan. Council ofugal FWlxulfon.