Automated Summary
Key Facts
Greenpark Management Limited, managing Greenpark Estate, opposed the construction of a petrol station by Superior Homes (Kenya) PLC on adjacent LR No. 27409, alleging environmental hazards and inadequate public participation. The applicant claimed licenses from EPRA, PLUPD, and NEMA were issued irregularly without proper Environmental Impact Assessments (EIA). Superior Homes argued they followed legal procedures, including ESIA reports and public consultations, with mitigation measures for pollution, safety, and water contamination. The Energy & Petroleum Tribunal dismissed the application, ruling the licenses were granted lawfully and the applicant failed to demonstrate infringement of environmental rights or unlawful licensing.
Issues
- The second issue centered on whether the petrol station's construction and operation would infringe the residents of Greenpark Estate's constitutional rights to a clean and healthy environment. The Applicant raised concerns about environmental hazards, including air and noise pollution, water contamination of the Stony Athi River, and fire risks. The Respondents countered that mitigation measures (e.g., double-skin tanks, buffer zones, oil-water separators) would address these concerns, and that the licensing process included public participation and environmental compliance.
- The Tribunal determined whether the Energy and Petroleum Regulatory Authority (EPRA), the Physical and Land Use Planning Department of Machakos County (PLUPD), and the National Environmental Management Authority (NEMA) issued licenses for the construction of a petrol station in violation of statutory requirements. The Applicant alleged that the licensing process lacked proper EIA, public participation, and adherence to environmental laws, while the Respondents argued that all legal procedures were followed.
Holdings
- The Tribunal determined that the 2nd, 3rd, and 4th Respondents did not irregularly license the construction of the petrol station by the 1st Respondent. The licensing process was conducted in accordance with legal requirements, including environmental assessments and public participation, despite some errors in the ESIA Study Report such as incorrect location references and outdated legislation citations.
- The Tribunal concluded that the proposed petrol station does not constitute an infringement of the residents' right to a clean and healthy environment. Mitigation measures outlined in the ESIA Study Report and EIA Licence were deemed sufficient to address environmental concerns, including air and noise pollution, water contamination, and safety risks. The Applicant failed to demonstrate violations of constitutional rights.
Remedies
- Each party to bear their own costs.
- The Application dated 19th October 2023 filed by the Applicant is dismissed in its entirety.
- The 2nd and 4th Respondents to discharge their statutory obligations diligently so as to ensure that as the 1st Respondent continues to construct the petrol station, all the conditions of licences issued to the 1st Respondent are complied with.
Legal Principles
- The Tribunal conducted a judicial review to assess whether the 2nd, 3rd, and 4th Respondents acted lawfully in licensing the petrol station. The Applicant argued the permits were issued irregularly without proper environmental impact assessments and public participation, while the Respondents contended compliance with statutory requirements.
- The Applicant sought a permanent injunction to halt the petrol station's construction, citing potential environmental harm. The Tribunal dismissed the application, finding the Applicant failed to meet the threshold for injunctive relief and that mitigation measures were in place to address concerns.
Cited Statute
- Energy Act, 2019
- Petroleum Act, 2019
- Environmental Management and Co-ordination Act No. 8 of 1999
- Legal Notice No. 7 of 2014
- KS EAS 980 of 2020
- Constitution of Kenya, 2010
- Physical and Land Use Planning Act No. 13 of 2019
Judge Name
- D.K Mwirigi
- F.S Ibrahim
- B.H Wasioya
Passage Text
- The Application dated 19th October 2023 filed by the Applicant is dismissed in its entirety.
- the Applicant's allegation is without merit.