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Environmental Compliance Requirements under Environmental Management and Co-ordination Act

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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya)*

Environmental compliance entails adherence to environmental laws, standards, regulations and other requirements. The need for environmental compliance is important among corporations due to the potential of environmental liability as a result of non-compliance. Corporations thus have to adhere to the various environmental laws, regulations and standards set out under EMCA and other environmental sectoral laws. Environmental Management and Co-ordination Act (EMCA), 1999 sets out various environmental management tools such as Environmental Impact Assessment (EIA), Environmental Audits, Strategic Environmental Assessment (SEA) and Strategic Environmental and Social Assessment (SESA).

Environmental Impact Assessment

Environmental Impact Assessment (EIA) refers to a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment. It has been described as an important tool in environmental conservation and management since it makes it possible to identify environmental problems and provide solutions to prevent or mitigate these problems to the acceptable levels and contribute to achieving sustainable development. Since most development activities and projects in Kenya are undertaken by companies, EIA becomes an important aspect of the corporate governance discourse. It has been argued that EIA can be a powerful tool for keeping the corporates including Multinational Corporations (MNCs) operating in the country in check.

The need for EIA is so important that the Environmental (Impact Assessment and Audit) Regulations, 2003 makes it mandatory to conduct an EIA study and have it approved before undertaking a project likely to have environmental effects. The Regulations require a proponent to prepare a Project Report that covers inter alia; the nature of the project, activities to be undertaken during construction of the project and the potential environmental impacts of the project and the mitigation measures to be taken during and after implementation of the project.  In addition, the regulations require a proponent to submit to NEMA an Environmental Impact Assessment Study Report that deals with among other things the environmental effects of the project and an Environmental Management Plan (EMP) proposing the measures for eliminating, minimizing or mitigating adverse impacts on the environment.

It important for corporations to comply with EIA requirements under EMCA in order to minimize the environmental impacts of their projects and promote sustainable development. Failure to comply with EIA requirements under EMCA has seen instances where projects have been halted. In Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others [2015] eKLR, the Applicant was issued with a mining license without complying with the EIA requirements under EMCA. In cancelling the license, the Environment and Land Court decided that:

‘To the extent that the Commissioner for mines was not furnished with a NEMA Licence as required under the EMCA Act and the Regulations made thereunder my view is he could not issue a valid Mining Licence and the Licence he issued to the Applicant on 7th March 2013 was null and void and of no legal effect.’

Strategic Environmental Assessment (SEA)

Strategic Environmental Assessment (SEA) is defined as a formal and systematic process to analyse and address the environmental effects of policies, plans, programmes and other strategic initiatives before their final adoption. EMCA requires all entities, including corporations, to undertake preparations for SEAs at their own expense and submit them to NEMA for approval. It has been observed that the object of SEA is to enhance environmental protection and promote sustainable development through contributing to the integration of environmental considerations into the preparation and adoption of specified policies, plans and programmes.

Environmental Audits and Monitoring

The requirement for environmental audits and monitoring has been enshrined under the Constitution of Kenya as part of the obligations in respect of the environment. Under EMCA, environmental audit is defined as the systematic, documented, periodic and objective evaluation of how well environmental organization, management and equipment are performing in conserving or preserving the environment (emphasis added). Environmental audits and monitoring act as follow up tools to determine the extent to which activities being undertaken conform to the environmental impact assessment study report issues in respect of the particular project. The aim of this process is to guard against deviation from the study report which could have detrimental effects on the environment. NEMA is mandated under EMCA to undertake environmental audits of all activities in consultation with other lead agencies.

Public Participation

The principle of Public participation has become essential under the current Constitutional dispensation in Kenya. It is enshrined under the Constitution as one of the national values and principles that binds all persons (including corporations) in the implementation of policy decisions. The principle is fundamental in environmental governance and all policies, plans and processes related to the environment are to be subjected to public participation. In Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others [2017] eKLR, the court recognized the importance of this principle and observed that:

‘One of the environmental governance principles emphasized by the legal framework is the principle of public participation in the development of policies, plans and processes for the management of the environment and natural resources.’

The principle of Public Participation has also been captured under EMCA. The Act requires the Environment and Land Court in exercising jurisdiction conferred upon it by the Act to be guided by principles of sustainable development including participation of the people in in the development of policies, plans and processes for the management of the environment. Further, under the Environmental (Impact Assessment and Audit) Regulations, 2003, a project proponent is required to seek the views of persons who may be affected by the project while conducting an environmental impact assessment study. Public participation is an important tool of environmental governance in Kenya since it guarantees social acceptance of projects. Neglect of public participation by corporations has led to EIA licenses being revoked for lack of public participation in conducting the EIA study.

Sustainable Development

Sustainable development has been enshrined as one of the national values and principles under the Constitution. The principle has also been captured under EMCA and incudes public participation, inter and intra generational equity, polluter pays principle precautionary principle inter alia. The importance of sustainable development has been further enhanced through the adoption of Sustainable Development Goals (SDGs) by the United Nations member states in 2015 as a universal call of action towards targets such as ending poverty and protecting the planet. The SDGs set various targets such as sustainable management of water and sanitation for all, attainment of affordable and clean energy, promotion of inclusive and sustainable industrialization and taking action to combat climate change. Corporations can assist towards promoting sustainable development through compliance with the targets set out under the SDGs.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD Muigua, K., “Providing Legal Advice on Corporate Environmental Compliance in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/05/Corporate-Environmental-Compliance-in-Kenya-May-2021.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021. 

References

Al Ouran, N.M., ‘Analysis of Environmental Health linkages in the EIA process in Jordan,’ International Journal of Current Microbiology and Applied Sciences, Vol. 4, No. 7, 2015, pp. 862-871.

Climate Change Act, No. 11 of 2016, Government Printer, Nairobi.

Companies Act, No. 17 of 2015, Government Printer, Nairobi.

Constitution of Kenya 2010, Government Printer, Nairobi.

Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others [2015] eKLR.

Declaration of the United Nations Conference on the Human Environment Stockholm, 16 June 1972, available at https://legal.un.org/avl/ha/dunche/dunche.html (Accessed on 25/11/2021).

Environmental Management and Co-Ordination Act (EMCA), No. 8 of 1999, Government Printer, Nairobi

Environmental (Impact Assessment and Audit) Regulations, 2003 Legal Notice No. 101 (June 13, 2003),

Environment Management and Co-ordination (Air Quality) Regulations, available at http://www.nema.go.ke/index.php?option=com_content&view=article&id=31&Itemid=171 (Accessed on 25/11/2021).

Environment Management and Co-ordination Water Quality Regulations, 2006 Legal Notice No. 120 (September 4, 2006).

Environmental Management: The ISO 14000 family of International Standards, available at https://www.iso.org/files/live/sites/isoorg/files/archive/pdf/en/theiso14000family_2009.pdf (Accessed on 25/11/2021).

Environmental protection Agency, ‘Strategic Environmental Assessment,’ Available at http://www.epa.ie/monitoringassessment/assessment/sea/#.Vi5tmGuJ2CA (Accessed on 21/11/2021).

Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others [2017] eKLR.

Muigua K, ‘Strengthening the Environmental Liability Regime in Kenya for Sustainable Development,’ Available at: http://kmco.co.ke/wp-content/uploads/2019/09/Strengthening-the-Environmental-Liability-Regime-in-Kenya-for-Sustainable-Development-Kariuki-Muigua-26th-April-2019.pdf(Accessed on 25/11/2021).

Muigua. K, ‘Legal Aspects of Strategic Environmental Assessment (SEA) and Environmental Management, available at http://kmco.co.ke/wp-content/uploads/2018/08/Legal-Aspects-of-SEA-andEnvironmental-Management-3RD-December-2016.pdf (Accessed on 25/11/2021).

Muigua, K, ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya’ available at http://kmco.co.ke/wp-content/uploads/2018/08/TOWARDS-MEANINGFUL-PUBLICPARTICIPATION-IN-NATURAL-RESOURCE-MANAGEMENT-IN-KENYA.pdf (Accessed on 25/11/2021).

Save Lamu & 5 Others v NEMA & another, Tribunal Appeal No. NET 196 of 2016.

Sustainable Development Goals, available at https://www.undp.org/content/dam/undp/library/ corporate/brochure/SDGs_Booklet_Web_En.pdf (Accessed on 25/11/2021).

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Former KCB Company Secretary Sues Over Unlawful Dismissal

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Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants  further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands.  He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.

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Court of Appeal Upholds Eviction of Radcliffes from Karen Land

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Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.

Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:

“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”

On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.

The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.

The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.

At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.

The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.

As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.

Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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