INAUGURAL ENVIRONMENTAL JUSTICE MOOT

2022

MOOT PROBLEM

THE REPUBLIC OF HELAYA

IN THE ENVIRONMENT AND LAND COURT

Kitutu Community Members Association........................................................Petitioner

Vs

National Environment Management Authority...........................................1st Respondent

Ministry of Petroleum and Mining...............................................................2ndRespondent

BV Impact.......................................................................................................3rd Respondent

TEAM NUMBER – 19

MEMORIALS FOR THE RESPONDENT.

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 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS ................................................................................... (ii)

2. LIST OF SOURCES ................................................................................................ (iii)
3. STATEMENT OF RELEVANT FACTS ................................................................. (iv)
4. ISSUES ............................................................... …………………………………....(v)
5. SUMMARY ARGUMENTS .................................................................................... (vi)
6. SUBSTANSIVE ARGUMENTS............................................................................. (vii)
1. Whether the environmental impact assessment study report was subjected to a
proper public participation process…………………………..…………………(1)
2. Whether the grant and renewal of the prospecting license was un procedural……..
(5)
3. Whether the project proponent erred by failing to conduct climate impact and
vulnerability assessments ..................................................................................... (7)
4. Whether the 1st Respondent erred by failing to publicize the grant of the
environmental impact assessment licenses and failure to enable the Petitioner access
information ......................................................................................................... (11)
5. Whether the seismic surveys would cause negative impacts to the livelihood, marine
resources, and culture of the Kitutu Community Members Association ........... (12)

PRAYERS............................................................................................................................ (15)

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 LIST OF ABBREVIATIONS

NAFIS - National Association for the Financial Inclusion of the Informal Sector

EMCA –Environmental Management and Co-ordination Act

ESIA- Environmental Social Impact Assessment Study

EIA – Environmental Impact Assessment

NEMA – National Environmental Management Authority.

ESIA- Environmental Social Impact Report

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 LIST OF LEGAL AUTHORITIES

INTERNATIONAL AUTHORITIES

Rio Declaration on Environment and Development, 1992

NATIONAL INSTRUMENTS

1. The Constitution Of Kenya, 2010

2. The Climate Change Act,2016
3. Environmental Management and Co-ordination Act,2015

LIST OF CASES

NATIONAL CASES

1. Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of
Energy & 17 others No. 305 of 2012 eKlr
2. Kenya Medical supplies Agency (KEMSA) –v- Mavji Kanji Hirani & 8 Others (2018)
eKLR,
3. Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others –v- County Government of
Nairobi & 3 Others Petition No. 486 of 2013
4. Musimba v The National Land Commission & Others [2016] 2 EA 260
5. Getrude Mukoya Mwenda & 5 others v Cabinet Secretary Ministry of Infrastructure,
Housing & Urban Development & 2 others [2020] eKLr
6. Beth Mugo & 7 others v Director General NEMA & Silver Crest Enterprises Limited,
NET/23/2007 at 5.
7. National Association for the Financial Inclusion of the Informal Sector v Minister for
Finance & Another [2012] Eklr

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 FOREIGN CASES

8. Sustaining the Wild Coast NPC and 8 others vs Shell Exploration and Production and
4 others HC of S.A (3491/2021)
9. Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006
(2) SA 311

REFERENCES

1. Migai Akech Draft of 20th July 2015 Administrative Law & Governance Project
University of Nairobi, School of Law.
2. Final report of the Independent Scientific Review Panel investigating potential
contributing factors to a 2008 mass stranding of melon-headed whales in
Antsohihy, Madagascar. Cambridge, UK: International Whaling Commission.
3. Understanding the impacts of anthropogenic sound on beaked whales. Journal of
Cetacean Research and Management 7:177-187.

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 STATEMENT OF RELEVANT FACTS

This case concerns Kitutu County in Helaya country . The county comprised of three major
islands; Malishoni, Maji Matamu and Machimbo, and other numerous smaller islands all
inhabited by citizens of Helaya. Of the three islands, Maji Matamu is the most populous since
it has an abundance of fresh water. Malishoni, slightly less populated than Maji Matamu, is
mainly for agriculture whereas Machimbo is where lime is mined. The residents of the Kitutu
county are predominantly Muslims, with Christians forming less than 8 percent of the
population.

On 18 February 2013, BV Impact applied for a prospecting right to, inter alia, use the seismic
survey to seek out oil and gas reserves off the Coast of Kitutu County in the Transkei Algoa
exploration area. BV Impact was required to prepare an Environmental Social Impact
Assessment Study Report and to submit it to the National Environment Management
Authority (NEMA) for approval and issuance of an environmental impact assessment (EIA)
licence. For the preparation of the environmental study report, BV Impact engaged an
independent environmental impact assessment practitioner who also conducted the public
consultation processes on BV Impact’s behalf.

NEMA received the study report from BV Impact and within 15 days published a notice in
the Kelaya Gazette and on Helaya Daily newspaper, a newspaper of nationwide circulation,
inviting comments. On the second week after publication, NEMA republished the notices in
another newspaper, Helaya Monitor Newspaper, stating that the comment period was to last
30 days from the date of publication. At the same time, a radio announcement was made on
Radio Mazingira on the exact dates as the two newspaper notices.

A month later, on a Saturday, NEMA Published a notice in The Helaya Monitor Newspaper
and on Mazingira Platform a local newspaper informing the public of a planned public
hearing scheduled for the following Friday. As per the notice, the public hearing was to be
conducted at Malishoni chief’s camp which is in Malishoni Island. The same information was
placed at a Malishoni Catholic church and the priest made that announcement during the
Sunday service as had been requested by the chief. It is also important to note that the notices
were all published before the Environmental Impact Assessment License being issued.

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On the scheduled day of public hearing, there was low community turnout, something that the
chief attributed to seasonal high tides, which made it hard for the community members to
cross over from neighboring Islands for the public hearing meeting. Nonetheless, the meeting
proceeded with those present.

At the public hearing, some of the community members raised issues to the effect that they
were not accorded sufficient time to comment on the ESIA report and that they lacked
sufficient knowledge to understand oil and gas issues. They also raised concerns that BV
Impact had not sufficiently informed them of the environmental harm that the project would
bring but instead they were informed of the opportunities that would arise from the said
project. They in fact stated that BV Impact had conducted the public participation process
only once far from the affected persons and they only got wind of the meeting through one
of the workers at the chief’s office. It is important to note that a worker in a chiefs’
camp is an agent to the chief and that the information is not rumors but rather a
reliable source of information.

Kitutu Community Members Association wrote a letter to the Director General of NEMA
asking for clarification on when NEMA would return to address their issues and conduct a
better public hearing as per the dictates of the law. NEMA responded after two weeks,
informing them that they were not obligated to conduct public hearings. The Director
General stated that section 59 and 60 employed the use of the word “may conduct”
hence it was not a mandatory obligation. Additionally, he expressed the view that the
public hearing conducted at the chief’s camp in Malishoni Island was sufficient and that the
community members had already been given a chance to air their views and concerns when
the call for comments was issued a period that had since elapsed.

Pursuant to the process, the Study Report was approved by NEMA on 17 May 2013. The
exploration license applied for by BV Impact was issued by the Ministry of Mining on 29
May 2013. The exploration right was subject to prescribed terms and conditions and was
valid for a period not exceeding three years.

No meaningful seismic and exploration activities were immediately conducted, but the
following developments unfolded:

(a) On 17 May 2017, BV Impact together with EMEP applied for the first renewal license of
the exploration right. The application was granted on 20 December 2017.

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(b) In 2018, PDG Geophysical conducted a 2D multi-client seismic survey in the area in
question as a precursor to the 3D survey that is the subject of this case. (c) On 13 March
2020, BV Impact applied for the second renewal of the exploration license.

(d) The second renewal was granted on 30 July 2021

On 15 September 2021, the Kitutu Community Members Association wrote a letter to

NEMA enquiring whether the project proponent had been granted the environmental
impact assessment license. To date, they have not got any response to the letter. The
reason being, the first Respondent (NEMA)is obligated under Section 59 of the
Environmental Management and Co-ordination Act to publicize the Environmental
Impact Assessment study report upon its receipt but is under no obligation to make
public the grant of the Environmental Impact Assessment Licenses.

The Community Members Association is apprehensive that if these seismic surveys

continue, there will be huge impacts to its members’ livelihoods, culture, and marine
resources. This is based on mere speculations, no evidence given.

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 ISSUES

(a) Whether the environmental impact assessment study report was subjected to a
proper public participation process?

(b) Whether the grant and renewal of the prospecting license was un procedural?

(c) Whether the project proponent erred by failing to conduct climate impact and
vulnerability assessments?

(d) Whether the 1st Respondent erred by failing to publicize the grant of the
environmental impact assessment licenses and failure to enable the Petitioner access
information?

(e) Whether the seismic surveys would cause negative impacts to the livelihood, marine
resources, and culture of the Kitutu Community Members Association?

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 SUMMARY ARGUMENTS

In our summary arguments, The 3rd Respondent (BV impact) has correctly noted that part of
the Appellants grievances on public participation arose from a common misunderstanding of
public participation where participants expect all their views to be accepted.

The main issue to pose to the petitioners is; would members of the public have supported the
project if certain information in the possession of the 3rd respondent (BV impact) had been
availed to them? It is important to note that there was no identification of any potential harm
to the biodiversity flora and fauna, water quality that was alleged to be potentially hazardous
and may cause the decrease of the sea life nor any climate change effect that could have led
to adverse consequences on human health.

Under paragraph 23 of the facts. The initial environmental impact assessment study report
that was submitted by BV Impact was approved by NEMA on 17th May 2013 as per
paragraph 19. The study report had listed Helaya’s Climate Change Act, 2016 as one of the
laws relevant to the preparation of and applicable to the study report as at that time the
Climate Change Act was not in operation.

The report, failed to make any climate impact assessment or vulnerability assessment despite
Section 20 of the Climate Change Act 2016 provides that the Authority (NEMA) shall
integrate climate risk and vulnerability assessment into all forms of assessment, and for that
purpose liaise with relevant lead agencies for their technical advice. The main reason was that
the study could not have been bound by a non-existing law at that time, and the listing of the
Act in 2013, is an indication that if the law had been operationalized at the time of the study,
it could have been included in the report.

In conclusion, the petitioner’s main claim is to invalidate the ESIA license on grounds of only
a mere procedural technicality. We the Respondents avers that the only option is not to stop
the project completely and invalidate the ESIA license. We find this approach to development
as too simplistic and unrealistic. Development projects will always have an environmental
impact. The extent and magnitude is the difference. To these impacts, the law has set out
requirements for mitigation measures to be put in place. Accordingly, in view of the
provisions of the EMCA Act 2015, we do not find that an approach that suggests a blanket
denial of licenses for such projects as not being very helpful. A number of factors have to be
considered in deciding to license such a project or not. And according to our submission, the

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dangers associated with the project should come first. Seismic survey is not a threat neither to
the environment nor to the human life.

We pray for the court to allow the project to continue and dismiss the suit for the reason that
Up to the present moment, activities undertaken by BV Impact do not threaten or impose
potential harm to the environment. We note that the only exploration for resources has been
undertaken. The Constitution of Kenya, 2010 provides for utilization of natural and
environmental resources for the benefit of the people of Kenya under Article 69. The
utilization of these resources imposes upon sovereign states a right to exploit resources as per
principle 2 of the Rio Declaration on Environment and Development:

“States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental and developmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.”

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 SUBSTANSIVE ARGUMENTS

WE are submitting that the project subject of this suit is an imperative national
facility predestined for the economic and social advantage of the public at large and
whose interests outdoes the private and unnecessary comforts of the Petitioners. We
now proceed to resolve the issues.

(a) Whether the environmental impact assessment study report was subjected to a
proper public participation process?

1. It should be noted that where NEMA approves a project, it could attach conditions to
the approval. In such a case, it would require the developer to indicate its acceptance
of the approval conditions. On the other hand, it could require the proponent to
undertake an EIA study if the reviewers find that the project will have a significant
impact on the environment, and that the project does not disclose sufficient mitigation
measures. At this point, if the reviewers are not able to make a decision (for example,
because the comments received from the public are controversial or they raise
complex issues), NEMA would organize a public hearing, so that the local
community, key lead agencies, the EIA expert and the project proponent can discuss
the project in its locality. Thus the decision to hold a public hearing is discretionary. 1
2. In The case Mui Coal Basin Local Community v Permanent Secretary Ministry
of Energy,20122 a three judge bench of the Kenya Constitutional Court set out the
minimum basis for adequate public participation as follows:-
Firstly, no single regime or program of public participation can be prescribed and the
Courts will not use any litmus test to determine if public participation has been
achieved or not. The only test the Courts use is one of effectiveness. A variety of
mechanisms may be used to achieve public participation. The mechanisms used in
this case have been evidenced under paragraph 10 and 11; they include national and
local newspapers, Malishoni chief’s camp public hearing and the church.

Sachs J. of the South African Constitutional Court stated this principle quite
concisely thus:‘’…What matters is that at the end of the day, a reasonable opportunity

1 Interview with NEMA Officers, Nairobi, 18 November 2014 , by Migai Akech Draft of 20th July 2015
Administrative Law & Governance Project University of Nairobi, School of Law
2
Constitutional Petition No. 305 of 2012: Mui Coal Basin Local Community & 15 others v Permanent Secretary
Ministry of Energy & 17 others

1
 is offered to members of the public and all interested parties to know about the issues
and to have an adequate say. What amounts to a reasonable opportunity will depend
on the circumstances of each case.’’ 3

Secondly, public participation does not dictate that everyone must give their views on an
issue of environmental governance. To have such a standard would be to give a virtual veto
power to each individual in the community to determine community collective affairs.

Thirdly, the right of public participation does not guarantee that each individual’s views will
be taken as controlling; the right is one to represent one’s views – not a duty of the agency to
accept the view given as dispositive. Despite there being a duty for the government agency
or Public Official involved to act in good faith, The government agency or Public Official
cannot merely be going through the motions or engaging in democratic theatre so as to tick
the Constitutional box. Under paragraph 13 some community members raised issues to the
effect that they were not sufficient time to comment on the ESIA report while under
paragraph 12, the public meeting proceeded with those present being the representatives of
the community.

Fourthly, the right of public participation is not meant to usurp the technical or democratic
role of the office holders but to cross-fertilize and enrich their views with the views of those
who may be affected by the decision or policy at hand as provided for Under Regulation 7.(l)
During the process of conducting an environmental impact assessment study under these
Regulations, the proponent shall in consultation with the Authority, seek the views of persons
who may be affected by the project. 4 The ‘may’ has been used to prove the democratic role of
the public agencies (in this case NEMA) in applying discretion.

3. In the case NAFIS v Minister for Finance & Another, [2012] 5(per Majanja J), for
the holding that the Constitution does not prescribe how public participation is to be
effected and in every case where a violation is alleged, it is a matter of fact whether
there is such a breach or not. While this may be true for the Constitutional provisions
and/ or other sectors, in the matter of Environmental Impact Assessment Studies the
EMCA and its regulations provide a structure of how the public participation exercise
will be conducted as we have provided in the paragraph 5 of this our submission.

3
Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311
4 The Environmental (Impact Assessment and Audit) Regulations, 2003
5National Association for the Financial Inclusion of the Informal Sector v Minister for Finance & Another [2012]
Eklr

2
 The test on whether the 1st and the 2nd respondents reasonably engaged the public in
the environmental impact assessment study report.

4. It is first important to note that under paragraph 9 of the moot court problem that For
the preparation of the environmental study report, BV Impact engaged an independent
environmental impact assessment practitioner who also conducted the public
consultation processes on BV Impact’s behalf as provided for in the Environmental
Management and Co-ordination Act, 2012 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 authorized in that behalf by the
Authority .
5. On the public participation issue we rely on The Environmental (Impact
Assessment and Audit) Regulations, 2003 that provides under Regulation
21:-(l) The Authority shall, within fourteen days of receiving the Environmental
impact assessment study report, invite the public to make Oral or written comments
on the report. It is evident under paragraph 10 of the facts that the 1st Respondent
complied with this provision as the said 1st respondent (NEMA) received the study
report from BV Impact and within 15 days published a notice in the Kelaya Gazette
and on Helaya Daily newspaper, a newspaper of nationwide circulation, inviting
comments as in accordance with Regulation 17 which provides at Regulation 17 (2)
that the seeking of views of the public could only happen after the approval of the
project report by the 1st Respondent (NEMA).
On the second week after publication, NEMA republished the notices in another
newspaper, Helaya Monitor Newspaper, stating that the comment period was to last
30 days from the date of publication. At the same time, a radio announcement was
made on Radio Mazingira on the exact dates as the two newspaper notices. Finally,
Regulation number 22. (l) Upon receipt of both oral and written comments as
specified Public hearing by section 59 and section 60 of the EMCA Act, the
Authority may hold a public hearing. The ‘may’ used is discretionary and not
mandatory.
6. After the expiry of the consideration of the public comments timeline (30 days) as
evidenced in paragraph 11 of the facts, a notice was published in the Helaya Monitor

3
 Newspaper and on Mazingira platform a local newspaper on Saturday informing the
public of a planned public hearing scheduled for the following Friday .

The complaints raised by the Community members present at the Malishoni Public hearing
on Friday

7. In Musimba v The National Land Commission & Others [2016]6, a 5 Judge-Bench

comprising Lenaola J. (as he then was), Mumbi, Achode., Odunga and Onguto, JJ
held as follows at Page 283:

“…the fact that the views given by the attendees at a public forum are all not taken into
consideration does not vitiate the fact that there has been compliance with the requirement
for public participation. In the instant case, there was facilitation. The public and other
relevant stakeholders were involved as the third Respondent undertook its statutory mandate.
There is undisputed evidence that Kenya Wildlife service, the Ministry of State for Planning,
the Kenya Forest Service and National Museums were all involved. These were all
stakeholders with different interests. It is evident under paragraph 15 of the facts that NEMA
had also organized another meeting with stakeholders in the oil and gas sector in the capital
city of Helaya.

8. Under paragraph 13 of the Facts, some of the community members raised issues to the
effect that they were not accorded sufficient time to comment on the ESIA report.
This is not true as when the 1st Respondent (NEMA) published the notice as required,
the period within which the authority shall receive comments had been provided as it
is a requirement under Section 3 of The Environmental (Impact Assessment and
Audit) Regulations, 2003 and the timeline to consider all public comments had
lapsed and not a single member of the said association brought queries. Relying to the
maxim of Ignorantia juris non exucat, the petitioner has no legal claim of their
ignorance.
9. Some members stated under paragraph 13 that BV Impact had conducted the public
participation process only once far from the affected persons and they only got wind
of the meeting through one of the workers at the chief’s office. It is evident that the
wind of the meeting received by the members is a direct contradiction to the claim of
denial to access to information as the worker in the chief’s office is a reliable source

6 Musimba v The National Land Commission & Others [2016] 2 EA 260

4
 and an agent of the chief in spreading the information .It is also directly stated under
paragraph 11of the facts, public hearing was to be conducted at Malishoni chief’s
camp which is in Malishoni Island.

It is mutual principle of public participation that the mere fact that specific opinions may not
have been acted upon and cannot be used as a measure for finding that the entire project was
deficient of appropriate public participation. We rely on the case of Nairobi Metropolitan
PSV Sacco’s Union Ltd –v- County Government of Nairobi, 20137 in which Lenaola J (as
he then was) cherished that public participation is not the similar as saying that the public
views must prevail. Under paragraph 16 of the facts Kitutu Community Members Association
wrote a letter to the director General of NEMA asking for clarification and the director
responded after two weeks and informed them that it was not an obligation to conduct public
hearing as in paragraph 17 of the facts the statutory time to consider comments had lapsed.
By seeking of a clarification, they only exercised their right to participate in public
participation which is a two-way activity; includes access to information and giving their
views on the information. The threshold for public participation per Lenaola J, has been met
in this case since as per the Mui Coal Basin Local Community v Permanent Secretary
Ministry of Energy, 2012 “public participation does not dictate that everyone must give their
views on an issue of environmental governance. To have such a standard would be to give a
virtual veto power to each individual in the community to determine community collective
affairs.”

(b) Whether the grant and renewal of the prospecting license was unprocedural?

10. On this issue, we submit that the authority, 1ST respondents (NEMA), after scrutiny
of the study report brought before them, found no errors or violations of law and
issued a license in compliance with the law. The suit before this Honorable Court and
specifically on this issue lacks basis on the issuance of the license critique. We submit
that, 12 days after the approval of the study report by 1ST respondent on 17/5/2013, a
license was issued on 29/5/2013, within the statutory requirement. We rely on the
regulations 23 and 24 of the Environmental (Impact Assessment and Audit)
Regulations, 2003 (herein referred to as ‘the regulation’). Regulation 23 of the
regulations lays down that;

7
Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others –v- County Government of Nairobi & 3 Others
Petition No. 486 of 2013

5
 The Authority shall give its decision on a Decision of environmental impact
assessment study report within three months of receiving an environmental impact
assessment study report and within 14 days issue a license to the proponents.

11. We rely on the same regulations but this time on the regulation 25 of the regulations.
Regulation 25(3) provides that;

A variation of an environmental impact assessment license issued under regulation

24 may be issued without the holder of the license submitting a fresh environmental
impact assessment study report if the Authority is satisfied that the project it varied
would comply with the requirements of the original license. We submit that not even
a single variation was made on the developments of the project and that the renewal
was totally due to the license’s expiry and that no changes or alteration the project
would make except those that were listed in the primary study report. No legal
obligations under Section 64 of EMCA the 3rd respondents owe for them to carry out
fresh for the renewal of the license to be granted as provided below.

12. Section 64 of the EMCA act Provides for the Submission of fresh Environmental
Impact assessment report after Environmental Impact Assessment License
issued(1) The Authority may, at any time after the issue of an environmental impact
assessment license direct the holder of such license to submit at his own expense a
fresh environmental impact assessment study, evaluation or review report within such
time as the Authority may specify where—
(a) There is a substantial change or modification in the project or in the manner in
which the project is being operated; BV impact (3rd respondent) had not done any
substantial change or modification in the project.
(b) The project poses environmental threat which could not be reasonably foreseen at
the time of the study, evaluation or review; the petitioner has failed to prove that BV
Impact (3rd respondent) Project posed any environmental threat which could
reasonably be foreseen.
(c) It is established that the information or data given by the proponent in support of
his application for an environmental impact assessment license under section 58 was
false, inaccurate or intended to mislead. The data given by BV Impact (3rd
Respondent) has not been challenged on any falsehood, inaccuracy nor
misrepresentation allegations.

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 20. Lastly, YOUR HONOR, relying on the case of Getrude Mukoya v Cabinet
Secretary Ministry of Infrastructure, Housing & Urban Development [2020] 8, the
learned judge was of the view that the petitioners failing to challenge the issuance of
the EIA license pursuant to Section 129 of EMCA regarded the suit dismissed. We
submit to you that the exploration license was granted on 29/5/2013 and the first
renewal license on 20/12/2017, the second renewal on 30/06/2021, however, the
petition was only filed in 2022. We aver that the petitioners are mortified of laches
and have filed this petition as an afterthought when the project has commenced and
almost halfway.

(c) Whether the project proponent erred by failing to conduct climate impact and
vulnerability assessments?

21. Climate impact and vulnerability assessments are used to ascertain the susceptibility
of a natural or human system to sustaining damage (or benefiting) from climate
change. Vulnerability is a function of exposure, sensitivity, and adaptive capacity. We
will outline our averment in the form of grant license and renewal licenses for
purposes of clarity.
Climate impact and vulnerability assessments in grant license

Section 20 of the Helaya’s Climate Change Act 2016 provides that

“The Authority (NEMA) shall integrate climate risk and vulnerability

assessment into all forms of assessment, and for that purpose liaise with relevant
lead agencies for their technical advice.”

22. It is important to note that the Climate Change Act commenced on 27th May 2016.It is
also important to note that the initial grant license to BV Impact, on 17th may 2013, by
NEMA was and still is in adherence to the laws of Helaya, since it was not until 2015
that EIA requirements and procedures in Helaya were amended. This was effected by
the coming into effect of Act No. 5 of 2015 which amended section 58 of EMCA.
Section 43 of the Environmental Management and Coordination (Amendment) Act,
2015 provides “Section 58 of the principal Act is amended-

8Getrude Mukoya Mwenda & 5 others v Cabinet Secretary Ministry of Infrastructure, Housing & Urban
Development & 2 others [2020] eKLr

7
 By deleting subsection (2) and substituting therefore the following new
subsection-(2) The proponent of any project specified in the Second Schedule
shall undertake a full environmental impact assessment study and submit an
environmental impact assessment study report to the Authority prior to being
issued with any license by the authority: provided that the Authority may direct
that the proponent forego the submission of the environmental impact
assessment study report in certain cases.”
23. The coming into effect of provisions of law that requires that an environmental impact
assessment study be conducted, in 2015 for EMCA and 2016 for The Climate Change
Act proves that the grant license was done procedurally and in accordance with the
provisions of law. Laws do not apply retroactively unless it has been stated in the
provisions that they should do so.
24. In Constitutional Petition No. 305 of 2012: Mui Coal Basin Local Community & 15
others v Permanent Secretary Ministry of Energy & 17 others a three judge bench of
the Kenya Constitutional Court set out on the balance of probabilities, in regards to
the rights of a clean , healthy environment , for instance, in this case The petitioner’s
environmental welfare, and the constitutional obligation of the government to utilize
the environment and natural resources for the benefit of the people of Helaya as
provided under Article 69 (h) of the Constitution of Helaya, as follows:

“120. As paraphrased in the Petitioners’ case, the Petitioners base their

arguments on the threat that their right to clean and healthy environment will be
infringed if the Coal Mining Project is permitted to go ahead. As far as we can
tell, their apprehension is predicated on what we can restate as a truism followed
by two arguments. The truism is that coal mining is acknowledged the world
over as one of the most environmentally-damaging activities man had ever
devised. In the first part of this judgment, we explained the scientific basis for
these assertions. However, the fact that Coal mining causes environmentally
adverse effects is not a self-defining reason not to concession coal mining. This is
because there is a need to balance, on the one hand, the need to utilize natural
resources sustainably so that they spur economic development since, after all,
environmental resources are the capital base of the economy. On the other hand,
there is the need to control and manage the use of the environmental resources so
that they do not generate unsustainable levels of pollution or waste or unjustified

8
 adverse effects on the health of humans. Hence, it fell on the Petitioners to
persuade the Court that this delicate balance has not been struck in the Coal
Mining Project. It is important to point out that in assessing “apprehension” of
harm to the environment, the accepted international standard now imported to
our country is one of precaution”

25. We aver, under Article 69, in regards to the obligations of the government respect of
the environment;
“(1) The State shall—
(a) Ensure sustainable exploitation, utilization, management and
conservation of the environment and natural resources, and ensure
the equitable sharing of the accruing benefits; and in (h) utilize the
environment and natural resources for the benefit of the people of
Helaya.”
-that in as much as the government and or government agencies are
obligated to ensure establishment and implementation of environmental
impact assessment programs, they are also in a much greater obligation to
ensure utilization of environment and natural resources for the benefit of
the people of Helaya and sharing of the accruing benefits.

Climate impact and vulnerability assessments in renewal license

26. The environmental impact assessment issue in this case is one entangled in a disarray of
procedural technicalities, or in other words whose effect is, according to the facts, not of any
potential harm to the environment. In addition, all activities undertaken by BV Impact in the
course of their activities up to the present moment have had no effect of potential harm to the
environment. These procedural technicalities were highlighted in the Mui Coal Basin case as
follows;

121. Here, the Petitioners argue that there is enough to worry us to stop the Coal
Mining Project on health and environmental grounds. First, they argue that the
very fact that an Environmental Impact Assessment (EIA) has not been
concluded justifies their apprehension that the assessment might suggest that the
adverse effects far outweigh the potential benefits of the project.

27. In addition, the Honorable Attorney General had, in the Mui Coal Basin Case, that
there was, already, sufficient legislation and legislative framework to operationalize

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safe mining of coal in the republic of Kenya, and no other regime was needed, in
reference to any questions as to legality of coal mining in Kenya. Your honor, BV
Impact is commissioned to utilize petroleum resources at the coastline of Kitutu
County, for the benefit of the people of Helaya, the resources in this case are much
kinder to the environment and these litigations may be frivolous to the extent that they
hinder the greater good.

28. The procedural technicalities, as to environmental impact assessment, we aver to,

are similar to those in the Mui Coal Basin case and the Constitutional Court held as
follows in regards to the same;

“123. Our approach is similar to the one we have taken on property rights: the
rights invoked by the Petitioners are real rights and they are justiciable. In an
appropriate case, if appropriate apprehension of potential harm to the
environment is demonstrated, the Court can move under Article 22 of the
Constitution to fashion an appropriate remedy. However, for orders to issue,
harm or threatened harm must be proved. That has not happened here. Our
position is that this claim is yet to ripen: there is no sufficient material that can
even trigger the invocation of the precautionary principle…..”

29. Your honor, the utilization of environment and natural resources and sharing of
accruing benefits envisaged by the legislature under Article 69 of the constitution
outweigh the interests of the Kitutu Members community Association in comparison
to the larger interests of the public which are for the greater good. In the case of
Kenya Medical supplies Agency (KEMSA) –v- Mavji Kanji Hirani & 8 Others
(2018) eKLR, the Court of Appeal while considering public interest stated as follows:

“Looked at as a whole, we think that on a balance of probabilities, the case of

KEMSA stood on a firmer ground and ought to have been upheld and the
Respondents case dismissed not least because in a contest between private
interests of dubious legitimacy and solid public interest claims, the latter ought
to prevail……

We accept as good law the rather commonsensical proposition that in the tussle
for supremacy between private and public interests, the latter must prevail. The
courts have a duty to identify and uphold the public interest, alive to the fact that

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 their decisions ought to conduce to the attainment of that which is for the
advancement of the public good.”

It falls upon this court, the heavy burden, to ensure that the economic benefits to be
accrued Inter alia, in the endeavor commissioned to BV Impact are not stalled by
litigations based on disarray and entanglement of provisions of law; and that they are
utilized for the public good.

(d) Whether the 1st Respondent erred by failing to publicize the grant of the
environmental impact assessment licenses and failure to enable the Petitioner access
information?

30. Regarding this issue, your honor, it is our submission that the 1stRespondent did not err
by failing to publicize the grant of the license and therefore did not deny the petitioners
access to information. The 1 st Respondent is not mandated by any law to publicize the grant
of the license. Pursuant to Section 58(2) of the Environmental Management and Co-
ordination Act, the 1strespondent shall cause to publish the Environmental Impact Assessment
study report upon its receipt from the proponent, on the Gazette, in at least two newspapers
circulating in the area or proposed area of the project and also on a radio notice. It shall state
in the notice the following;

a) A summary description of the project;

b) The place where the project is to be carried out;
c) The place where the environmental impact assessment study, evaluation or review
report may be inspected; and
d) A time limit of not exceeding sixty days for the submission of oral written comments
on the environmental impact assessment study, evaluation or review report.
31. Section 58 of EMCA, read together with Regulation 9 and 10 of the EIA Regulations
do not expressly make provision for comments of members of the public to be sought
by NEMA prior to NEMA making a determination on the basis of a Project Report,
whether or not to issue an EIA license. This was held in the case;

Hon. Beth Mugo & 7 Others v. Director General, National Environment Management
Authority (NEMA) and Silver Crest Enterprises Ltd, 20079. As the Tribunal noted in those

9
Beth Mugo & 7 others v Director General NEMA & Silver Crest Enterprises Limited, NET/23/2007 at 5.

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 Appeals, Section 58(1) of EMCA requires proponents applying for an EIA license to
submit a project report to NEMA. Regulation 9 of the EIA Regulations stipulates that
the project report shall be circulated for comments to relevant lead agencies, relevant
district environmental committees and as necessary, relevant provincial environment
committees. Upon receipt of comments from these entities, or where no comments are
received by the end of a period of thirty days, NEMA shall proceed to determine a
project report.

Section 58(2), read together with Regulation 10 of the EIA Regulations, authorize
NEMA to determine applications for EIA license on the basis of project report in one of
two ways: that a project will have no significant impact on the environment or that the
project report discloses sufficient mitigation measures, in which case, NEMA shall issue
an EIA license. Alternatively, NEMA could decide that a project may have significant
impacts on the environment or that a project report discloses no sufficient mitigation
measures in which case NEMA shall require the proponent to carry out a full EIA
study. If a full EIA study is required under Section 59 of EMCA, a report of an EIA
study shall be publicized in the manner set out in Section 59(1) and comments of the
public sought. Section 58 of EMCA, read together with Regulation 9 and 10 of the EIA
Regulations do not expressly make provision for comments of members of the public to
be sought by NEMA prior to NEMA making a determination on the basis of a Project
Report, whether or not to issue an EIA license. Therefore, in effect, an EIA license may
be issued without seeking the views of potentially affected members of the public and
without such views being made known by NEMA.

In conclusion, the first Respondent is obligated under Section 59 of the

Environmental Management and Co-ordination Act to publicize the Environmental
Impact Assessment study report upon its receipt but is under no obligation to make
public the grant of the Environmental Impact Assessment Licenses.

(e) Whether the seismic surveys would cause negative impacts to the livelihood, marine
resources, and culture of the Kitutu Community Members Association?

32. This issue was well expounded on in the case Sustaining the Wild Coast NPC and 8
others vs Shell Exploration and Production and 4 others HC of S.A (3491/2021).

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 Under paragraph 108. “The applicants rely on evidence of experts for their
contention that the anticipated harm to marine and bird life is a fundamental
consideration. The Respondents, likewise, rely on experts to refute the suggestion
of possible harm to marine and bird life. They suggest that the detriment effect
of seismic surveys are not known and that, in so far as there is a possibility of
death or stranding of marine animals from exposure to sound from seismic
surveys , there are appropriate mitigating and monitoring measures in place”

In paragraph 118. “According to shell impact, no harm will ensue from the seismic
survey because it will be conducted approximately 20km into the sea, away from
the shore. They also contend that measures have been put in place to mitigate
and monitor possible death or stranding of marine mammals from exposure to
sound from seismic surveys”
33. The petitioners in this case should provide evidence of our pollution or future
impacts if any, however we (respondents) aver there is no negative impact as a
result of the project. The inadequate research in the impacts of seismic survey is
one ground for the court in its discretion, to apply the precautionary principle in
this matter. Moreover the scanty theoretical studies available over the impacts of
seismic survey as a precursor method to extraction of oil and gas, have only
provided for temporary effects in marine life as we have provided in the next
paragraphs.
34. A seismic survey is the study in which seismic waves generated through compressed
air are used to image layers of rocks below the seafloor in search of geological
structures to determine the potential presence of naturally occurring hydrocarbons (i.e.
oil and gas) Assessing the impact of seismic surveys has typically been limited to
individual environmental assessments that often focus only the loudest sound source
(e.g. seismic air gun arrays) and for a single survey. This ignores sub-bottom
profilers, support vessels, undersea communication systems, shipping vessels, and
other major sources of noise that must be quantitatively analyzed in combination with
air gun surveys to comprehensively estimate the potential impacts on marine life. 10

10
Southall BL, Rowles T, Gulland F, et al. 2013. Final report of the Independent Scientific Review Panel
investigating potential contributing factors to a 2008 mass stranding of melon-headed whales (Peponocephala
electra) in Antsohihy, Madagascar. Cambridge, UK: International Whaling Commission.

13
 34. Non-auditory physiological effects or injuries that might, in theory, occur in
marine mammals exposed to high-level underwater sound include stress, neurological
effects, bubble formation, and other types of organ or tissue damage. 11 To date, there
have been no studies on the potential physiological effects of air gun or echo sounder
sounds on sea life. Marine mammals that show behavioral avoidance of seismic or
other vessels, as documented for some, are especially unlikely to incur auditory
impairment or other physiological effects.
Types of potential effects to the fish when exposed to underwater seismic sounds
35. Fish can undergo three types of potential effects when exposed to underwater
seismic sounds: pathological, physiological, and behavioral. Proposed seismic surveys
are not likely to cause either pathological or physiological effects to fish. This is
primarily because the pathological (mortality) zone for fish would be expected to be
within a few meters of the seismic source. Moreover, primary and secondary stress
responses of fish after exposure to seismic survey sound (physiological) appear to be
temporary. Instead, potential impacts to commercial fisheries are more likely from
behavioral effects to fish from sounds associated with the seismic surveys.
38. There is a general concern about the potential reduction in the catchability of fish
due to behavioral effects to fish from seismic survey operations, including changes in
distribution, migration, and reproduction. Disturbances to fish populations and
distributions could result in reduced catch of one or more target species for the
duration of seismic survey operations. For some fish species, behavioral changes from
seismic survey operations may result in changes in vertical or horizontal distribution.
However, for some fisheries, there has been no significant effect on distribution or
evidence of reduced catch rates. Short-term behavioral effects to fish resulting from
seismic surveys would be localized and not expected to significantly impact
commercial fisheries. In Kitutu County, fishing is the main income generating
activity, therefore the commercial fisheries will not be affected.
Permanent Threshold Shift (PTS) injury in mammals
40. Given the higher level of sound necessary to cause PTS, it is even less likely that
PTS could occur through exposure to air gun sounds. In fact, even the levels
immediately adjacent to the air guns may not be sufficient to induce PTS, especially

11
Cox, T.M., T.J. Ragen, , J. Meads, and L. Benner. 2006. Understanding the impacts of anthropogenic sound
on beaked whales. Journal of Cetacean Research and Management 7:177-187.

14
 because a mammal would be exposed to no more than one high-level pulse unless it
swam immediately alongside the air gun for a period longer than the inter-pulse
interval.12
In conclusion, the petitioners are claiming that the project will adversely affect
them yet the studies on the effects on Seismic Survey have temporary effects.

PRAYERS

Your Honor, the respondents pray for the following;

1. That the suit be dismissed

2. That the BV Impact renewal license be granted and the project continue
3. That each party to bear its own court costs

12
Finneran, J.J., D.A. Carder, C.E. Schlundt, and S.H. Ridgway. 2005. Temporary threshold shift in bottlenose
dolphins (Tursiops truncatus) exposed to mid-frequency tones. Journal of the Acoustical Society of America
118:2696-2705.

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