IN THE NATIONAL ENVIRONMENT TRIBUNAL AT …...SGR Project by tunnelling in Ngong Hills, and approving the routing or the SGR project through the Nairobi National Park (hereinafter,

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IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. OF 2016

OKIYA OMTATAH OKOITI 1ST APPELLANT KENYA COALITION FOR WILDLIFE CONSERVATION & MANAGEMENT 2ND APPELLANT

~VERSUS~

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY 1ST RESPONDENT NATIONAL LAND COMMISSION 2ND RESPONDENT KENYA WILDLIFE SERVICE 3RD RESPONDENT KENYA RAILWAYS CORPORATION 4TH RESPONDENT CHINA ROAD & BRIDGE CORPORATION (KENYA) 5TH RESPONDENT MINISTRY OF TRANSPORT AND INFRASTRUCTURE 6TH RESPONDENT MINISTRY OF ENVIRONMENT AND NATURAL RESOURCES 7TH RESPONDENT THE HON. ATTORNEY GENERAL 8TH RESPONDENT

NOTICE OF APPEAL (Under Rule 4(1) of the National Environmental Tribunal Procedure Rules 2003)

1. APPELLANTS:

Okiya Omtatah Okoiti (Adult Kenyan Citizen) Physical Address for service: Room 4, Floor B1, Block A, Western Wing, NSSF

Building, Bishops Road, Nairobi. Postal Address: P.O. Box 60286-00200, Nairobi Telephone No: +254-0722-684-777 Email: [email protected]

Kenya Coalition for Wildlife Conservation & Management (A coalition of community based groups, civil society organisations, and corporates based in 21 wildlife regions in Kenya) Physical Address for service: Westend Place Building, Off Mai Mahiu Road, NAIROBI. Postal Address: P.O. Box 3731 - 00506, Nairobi Telephone No: +254 (020) 6006510, 0727234447 Email Address: [email protected]

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2. RESPONDENTS: National Environment Management Authority (NEMA) Physical Address for Service: Popo Road, South C, Off Mombasa Road Postal Address: P.O. Box 67839-00200, Nairobi Telephone No: 020-2101370, 020-2183718 Email: [email protected] National Land Commission Physical Address for Service: Ardhi House, 1st Ngong Avenue, Off Ngong Road, Postal Address: P.O. Box 44417 – 00100, Nairobi Telephone No: +254 (020) 2718050 Email: [email protected] Kenya Wildlife Service Physical Address for Service: KWS Headquarters, Langata Road, Postal Address: P.O. Box 40241 - 00100, Nairobi Telephone No: +254 (020) 2379407 Email: [email protected] Kenya Railways Corporation Physical Address for Service: Workshops Road, Off Haille Selasssie Avenue, Postal Address: P.O. Box 30121 – 00100, Nairobi Telephone No: +254 070990700 Email: [email protected]; contact @krc.co.ke China Road & Bridge Corporation (Kenya) Physical Address for Service: Plot LR. 330/265, Hatheru Road, Lavington, Postal Address: P.O. Box 39037 – 00623, Nairobi Telephone No: +254 (020) 3870272 Ministry of Transport, Infrastructure, Housing and Urban Development Physical Address for Service: Transcom House, Ngong Road Postal Address: P.O. Box 52692-00200, Nairobi Telephone No: +254 (020) 2729200 Ministry of Environment and Natural Resources Physical Address for Service: NHIF Building, 12th Floor, Ragati Road, Upper Hill Postal Address: P. O. Box 30126-00100, Nairobi Telephone: (020)2716103 The Hon. Attorney-General Physical Address for Service: 7th Floor, Sheria House, Harambee Avenue Postal Address: P.O. Box 40112 - 00100 Nairobi Telephone: +254-020-2227461 / 2251355

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3. Decision / Action appealed against (Attach Copy if any): (Appeal Under Section 129(2), (3) & (4) of the Environment Management and Coordination Act, as read with rule 2 of the National Environmental Tribunal Procedure Rules 2003) a) The failure and/or refusal by National Environment Management Authority (NEMA), the 1st

Respondent herein, to intervene and interdict the on-going irregular and illegal construction of the Nairobi – Naivasha section of the Standard Gauge Railway (hereinafter, “Phase 2A of the SGR Project.”)

b) The silence of the 1st Respondent in the face of the continuing works on the SGR Project is tantamount to the 1st Respondent having issued a de facto licence for the project to be implemented outside the law.

c) Under Section 9 of the Environmental Management and Co-Ordination Act (Cap 387), the 1st Respondent is empowered to “monitor and assess activities, including activities being carried out by relevant lead agencies, in order to ensure that the environment is not degraded by such activities, environmental management objectives are adhered to and …”

d) Under Rule 2 of the National Environmental Tribunal Procedure Rules 2003, “a „disputed decision‟ ... includes a failure or refusal to make a decision by the Authority or its officer or committee.”

4. Summary of Grounds of Appeal (Attach a detailed statement)

a) The 1st Respondent who knows, or ought to know, about the on-going illegal implementation of Phase 2A of the SGR Project has decided not to intervene and interdict the illegal constructions and developments.

b) It is in the public domain that the 4th and 5th Respondents have commenced Phase 2A of the

SGR Project by tunnelling in Ngong Hills, and approving the routing or the SGR project through the Nairobi National Park (hereinafter, “the NNP”), and densely populated areas of Kajiado County without conducting environmental and social impact assessments and without receiving the requisite approval of the 1st Respondent.

c) In gross abuse of their mandates, the 2nd and 3rd Respondents have, without the benefit of environmental and social impact assessments, consented to the SGR project being constructed through the middle of the NNP, effectively ensuring that any such studies, if ever done, will be a mere formality after the fact.

d) At the media briefing on Phase 2A of the SGR Project, which was held at the Nairobi Serena on 13th September 2016, A. K. Maina, Managing Director of the 4th Respondent, confirmed that the respondents have collectively and variously through reckless acts and/or omissions decided to construct Phase 2 of the SGR project through the NNP and the densely populated areas of Kajiado County, without regard for the law or adequate consideration for less controversial and more viable alternative routes for the project.

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e) On 26th September 2016, His Excellency President Uhuru Muigai Kenyatta will officially

launch Phase 2A of the SGR Project clearing the way for construction to begin at the NNP yet the mandatory environmental and social impact assessments have not been carried out and the 1st Respondent has not approved the project.

f) By failing and/or refusing to intervene and interdict the illegal and unlawful implementation of Phase 2A of the SGR Project, the 1st Respondent has tacitly granted a de facto licence to the 2nd – 7th Respondents to violate the law. Therefore, the 1st Respondent’s failure and/or refusal to act is in breach of Article 47 of the Constitution which provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

a) The 1st Respondent is enjoined by its mandate under the law not to allow or turn a blind eye to any projects being undertaken without its express approval following due process.

b) Under no circumstances should Phase 2A of the SGR Project be implemented without full environmental and social impact assessments of the project being conducted and, thereafter, having them approved by the 1st Respondent, who will then issue an EIA licence for works to commence under terms and conditions specific to the project.

c) The NNP is facing an imminent existential threat from pollution and land grabbing due to the construction of Phase 2A of the SGR Project through the park.

d) The silence and/or inaction of the 1st Respondent has allowed the 2nd – 7th Respondents to implement Phase 2A of the SGR Project outside the law.

5. Other related matters filed in any court or Tribunal (if any):

a) In the High Court of Kenya at Nairobi Petition No. 151 of 2016, Robert Kipkemboi v The Kenya Railways Corporation and 7 Others.

6. The reliefs which the Appellants are seeking before the Tribunal:

a. Orders certifying that the Appeal is urgent and should be heard on priority bases;

b. Orders for the issue of a prohibitory injunction restraining the respondents and other parties involved, their agents, employees and/or representatives from in any way continuing with operations and/or construction of Phase 2A of the SGR Project without following due process, including, first, conducting environmental and social impact assessments of the project and, second, getting the 1st Respondent’s express approval for the project;

c. Orders for the restoration of the environment by mitigating the damage caused by the work done so far in the construction of the project;

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d. Request for a declaration that no EIA licence be issued for Phase 2A of the SGR Project without following due process, which includes consulting and getting the approval stakeholders.

e. Costs of this appeal.

f. Any other just and equitable relief as this Honourable Tribunal may deem appropriate.

7. Signature or mark of the Appellant/ Advocate ..............................................................................................................................................

8. Dated at NAIROBI this ............................ Day of ..............................20.............

9. Drawn and filed by: OKIYA OMTATAH OKOITI,

ROOM 4, FLOOR B1, BLOCK A, WESTERN WING, NSSF BUILDING, BISHOPS ROAD, P. O. BOX 60286-00200, NAIROBI. Email address: [email protected]

10. Fees payable Kshs:

Receipt No: …………………………..

Action taken …………………………………………………… Date………………

11. For official use only:

mailto:[email protected]

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IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI TRIBUNAL CASE NO 0F 2015


~VERSUS~

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY 1ST RESPONDENT NATIONAL LAND COMMISSION 2ND RESPONDENT KENYA WILDLIFE SERVICE 3RD RESPONDENT KENYA RAILWAYS CORPORATION 4TH RESPONDENT CHINA ROAD & BRIDGE CORPORATION (KENYA) 5TH RESPONDENT MINISTRY OF TRANSPORT AND INFRASTRUCTURE 6TH RESPONDENT MINISTRY OF ENVIRONMENT & NATURAL RESOURCES 7TH RESPONDENT THE HON. ATTORNEY GENERAL 8TH RESPONDENT

STATEMENT ON GROUNDS OF APPEAL TAKE NOTICE that the 1st and 2nd Appellants intend to appeal against the 1st Respondent’s refusal

and/or failure to intervene and interdict the on-going illegal construction of the Nairobi – Naivasha

section of the Standard Gauge Railway (hereinafter, “Phase 2A of the SGR Project”) contrary to the

Environment Management and Co-ordination Act on the following grounds:

a) THAT on 26th September 2016, His Excellency President Uhuru Muigai Kenyatta will

officially launch Phase 2A of the SGR Project clearing the way for construction to begin at

the Nairobi National Park (hereinafter, “the NNP”) before the mandatory environmental and

social impact assessments are carried out.

b) THAT launching the project before the mandatory environmental and social impact

assessments are carried out on all possible routes to determine the most suitable one is not

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only illegal, but it will automatically and arbitrarily lock out the other possible routes from

scientific consideration, and deny Kenyans the opportunity of scientifically determining and

benefitting from the most suitable of the routes for the SGR project.

c) THAT since it goes without saying that after a presidential launch of the project, the 1st

Respondent will not be in a position to deny the project requisite approvals, the

environmental and social assessments must be conducted before the launch.

d) THAT the launching by the President of the project before conducting full environmental

and social impact assessments will render any such exercises undertaken after the event to

mere rituals/formalities meant to hoodwink Kenyans that their best interests are being

considered in the SGR project.

e) THAT under the law, environmental and social impact assessments are meant to be effective

preventive measures for protecting the environment and society from adverse effects of

development. They are not meant to be reactive formalities or rituals carried out after the

fact. Hence, to be valid, the assessments, which by law are conditions precedent to the

implementation of any project, must be carried out and approvals of the 1st Respondent

obtained, before any project can commence or be launched.

f) THAT the 4th and 5th Respondents are already constructing Phase 2A of SGR project, by

tunnelling in Ngong Hills, without conducting environmental and social assessments, and

without obtaining the requisite approvals from the 1st Respondent. The same will be difficult

to demolish if the Appeal herein is allowed rendering the Appeal nugatory.

g) THAT in gross abuse of their mandate, the 2nd and 3rd Respondents have, without the benefit

of environmental and social impact assessments, consented to the SGR project being

constructed through the middle of the NNP, effectively ensuring that any such studies, if

ever done, will be a mere formality after the fact.

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h) THAT the 2nd Respondent does not have the capacity under the law to grant easements in

the NNP where the easements tantamount to the protected public land being de-gazetted.

i) THAT only Parliament can de-gazette the NNP.

j) THAT the on-going construction of the SGR project is designed to confront the people of

Kenya with the unenviable situation whereby the 1st Respondent will be ineffective

exercising its supervisory jurisdiction after the fact.

k) THAT the construction of the SGR project through the NNP will expose the park’s fragile

ecosystem to continuous irreversible damage and degradation.

l) THAT it is in the interest of justice and fairness that the on-going construction of Phase 2A

of the SGR Project be stopped with immediate effect to safeguard the public interest in the

NNP.

m) THAT unless the orders of this Application are granted, the Appeal would be rendered

otiose and the fundamental rights of the Appellant would further be trampled upon.

n) THAT the irregular, unreasonable, arbitrary, illegal and unlawful decision to route the Phase

2A of the SGR project through the Nairobi National Park and the densely populated areas of

Kajiado County, among others:

i. Deprives the Appellants and other affected persons their right to good governance and

sustainable development, in violation of Articles 10(2) of the Constitution of Kenya;

ii. Amounts to administrative action which is an unlawful, unreasonable and unfair, contrary

to Article 47(1) of the Constitution of Kenya;

iii. Deprives the appellants and other affected persons their right to a clean and healthy

environment in breach of Articles 42 of the Constitution of Kenya;

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iv. Has exposed the ecosystem of the Nairobi National Park to irreversible environmental

damage, in breach of Articles 69 and 70 of the Constitution of Kenya

DATED at NAIROBI this 19th day of September 2016.

_____________________________ OKIYA OMTATAH OKOITI THE 1ST APPELLANT

DRAWN & FILED BY: OKIYA OMTATAH OKOITI, ROOM 4, FLOOR B1, BLOCK A, WESTERN WING, NSSF BUILDING, BISHOPS ROAD, P. O. BOX 60286-00200, NAIROBI.

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REPUBLIC OF KENYA IN THE NATIONAL ENVIRONMENT TRIBUNAL

TRIBUNAL APPEAL NO OF 2016


~VERSUS~


CERTIFICATE OF URGENCY

I, OKIYA OMTATAH OKOITI, of Post Office Box Number 60286-00200 Nairobi and the

Appellant herein DO CERTIFY that this matter is extremely urgent and should be placed before the

Tribunal/Duty Judge as matter of urgency for the following reasons;

a) THAT on 26th September 2016, His Excellency President Uhuru Muigai Kenyatta will




b) THAT launching the project before the mandatory environmental and social impact


only illegal, but it will automatically and arbitrarily lock out the other routes from scientific

consideration, and deny Kenyans the opportunity of scientifically determining and


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c) THAT since it goes without saying that after a presidential launch of the project, the 1st



d) THAT the launching by the President of the project before conducting full environmental


mere formalities meant to hoodwink Kenyans that their best interests are being considered in

the SGR project.

e) THAT under the law, environmental and social impact assessments are meant to be effective


development. They are not meant to be reactive formalities carried out after the fact. Hence,

to be valid, the assessments are, by law, conditions precedent to the implementation of any

project.

f) THAT the 4th and 5th Respondents are already constructing the 2nd Phase of the Standard

Gauge Railway (hereinafter, “the SGR project”), by tunnelling in Ngong Hills, without

having the requisite approvals from the 1st Respondent and the same will be hard to

demolish if the Appeal herein is allowed rendering the Appeal nugatory.

g) THAT in gross abuse of their mandate, the 2nd and 3rd Respondents have irregularly and

irrationally, without the benefit of environmental and social impact assessments, consented

to the SGR project being constructed through the middle of the NNP, effectively ensuring

that any such studies, if ever done, will be a mere formality after the fact.

h) THAT the 2nd Respondent does not have the capacity under the law to grant easements in


i) THAT only Parliament can de-gazette the NNP.

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j) THAT the on-going construction of the SGR project is designed to confront the people of



k) THAT the construction of the SGR project through the NNP will expose the park’s fragile


l) THAT it is in the interest of justice and fairness that the on-going construction of Phase 2A


NNP, and to preserve the motion herein.


____________________________ OKIYA OMTATAH OKOITI

THE 1ST APPELLANT DRAWN & FILED BY:

OKIYA OMTATAH OKOITI, ROOM 4, FLOOR B1, BLOCK A, WESTERN WING, NSSF BUILDING, BISHOPS ROAD, P. O. BOX 60286-00200, NAIROBI.

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IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI TRIBUNAL CASE NO OF 2016


~VERSUS~


NOTICE OF MOTION (Under Rule 4, 5 and 18 of the National Environmental Tribunal Procedure Rules 2003)

TAKE NOTICE that the honourable tribunal will be moved on the _________ day of

_______________, 2016 at 9.00 O’clock in the forenoon or soon thereafter as counsel for the

Appellant may be heard on an application for orders;

1. THAT this Application be certified urgent and be heard ex-parte in the first instance for purposes of prayers 2 and 3 hereafter.

2. THAT this honourable tribunal be pleased to issue a prohibitory injunction restraining the Respondents, their agents, employees and/or representatives from any way continuing with operations and or construction of the Nairobi – Naivasha section of the Standard Gauge Railway (i.e., “Phase 2A of the SGR project”), including continuing to excavate tunnels in the Ngong Hills area, pending the hearing and determination of this application.

3. THAT the scheduled launch on 26th September 2016, of the construction of Phase

2A of the SGR project by His Excellency President Uhuru Muigai Kenyatta, be hereby suspended pending the hearing and determination of this application.

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4. THAT this honourable tribunal be pleased to issue a prohibitory injunction restraining the Respondents, their agents, employees and or representatives from any way continuing with operations and/or construction of the Nairobi – Naivasha section of the Standard Gauge Railway (i.e., “Phase 2A of the SGR project”), including continuing to excavate tunnels in the Ngong Hills area, pending the hearing and determination of this appeal.

5. THAT the scheduled launch on 26th September 2016, of the construction of Phase

2A of the SGR project by His Excellency President Uhuru Muigai Kenyatta, be hereby suspended pending the hearing and determination of this appeal.

6. THAT the Appellants herein be allowed to adduce additional evidence in support of

this appeal.

7. THAT the Appellants herein be allowed to call expert witnesses to attend the hearing of the appeal and adduce additional evidence in support of this appeal.

8. THAT the Respondents bear the costs of this Application.

WHICH APPLICATION is supported by the affidavit of OKIYA OMTATAH OKOITI and further grounds shall be adduced at the hearing hereof;

o) THAT on 26th September 2016, His Excellency President Uhuru Muigai Kenyatta will




p) THAT launching the project before the mandatory environmental and social impact


only illegal, but it will automatically and arbitrarily lock out the other possible routes from



q) THAT since it goes without saying that after a presidential launch of the project, the 1st



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r) THAT the launching by the President of the project before conducting full environmental


mere formalities meant to hoodwink Kenyans that their best interests are being considered in

the SGR project.

s) THAT under the law, environmental and social impact assessments are conditions precedent

to the commencement of projects and they are meant to be effective preventive measures for

protecting the environment and society from adverse effects of development. They are not

meant to be reactive formalities carried out after the fact. Hence, to be valid, the

assessments, which by law are conditions precedent to the implementation of any project,

must be carried out before the commencement or launching of the project.

t) THAT the 4th and 5th Respondents are already constructing Phase 2A of the SGR project, by

tunnelling in Ngong Hills, without conduction environmentaland social assessments, and

without having the requisite approvals from the 1st Respondent. The same will be difficult to

demolish if the Appeal herein is allowed rendering the Appeal nugatory.

u) THAT in gross abuse of their mandate, the 2nd and 3rd Respondents have, without the benefit

of environmental and social impact assessments, consented to the SGR project being

constructed through the middle of the NNP, effectively ensuring that any such studies, if

ever done, will be a mere formality or ritual after the fact.

v) THAT the 2nd Respondent does not have the capacity under the law to grant easements in


w) THAT only Parliament can de-gazette the NNP.

x) THAT the on-going construction of the SGR project is designed to confront the people of



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y) THAT the construction of the SGR project through the NNP will expose the park’s fragile


z) THAT it is in the interest of justice and fairness that the on-going construction of Phase 2A


NNP.

aa) THAT unless the orders of this Application are granted, the Appeal would be rendered

otiose and the fundamental rights of the Appellants and the general Kenyan public will

further be trampled upon.

bb) THAT it is in the interest of justice that this application be disposed of expeditiously.


____________________________ OKIYA OMTATAH OKOITI

THE 1ST APPELLANT DRAWN & FILED BY:

OKIYA OMTATAH OKOITI, ROOM 4, FLOOR B1, BLOCK A, WESTERN WING, NSSF BUILDING, BISHOPS ROAD, P. O. BOX 60286-00200, NAIROBI.

TO BE SERVED UPON

1. National Environment Management Authority (NEMA) Physical Address for Service: Popo Road, South C, Off Mombasa Road Postal Address: P.O. Box 67839-00200, Nairobi Telephone No: 020-2101370, 020-2183718 Email: [email protected]

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2. National Land Commission

Physical Address for Service: Ardhi House, 1st Ngong Avenue, Off Ngong Road, Postal Address: P.O. Box 44417 – 00100, Nairobi Telephone No: +254 (020) 2718050 Email: [email protected]

3. Kenya Wildlife Service

Physical Address for Service: KWS Headquarters, Langata Road, Postal Address: P.O. Box 40241 - 00100, Nairobi Telephone No: +254 (020) 2379407 Email: [email protected]

4. Kenya Railways Corporation

Physical Address for Service: Workshops Road, Off Haille Selasssie Avenue, Postal Address: P.O. Box 30121 – 00100, Nairobi Telephone No: +254 070990700 Email: [email protected]; contact @krc.co.ke

5. China Road & Bridge Corporation (Kenya)

Physical Address for Service: Plot LR. 330/265, Hatheru Road, Lavington, Postal Address: P.O. Box 39037 – 00623, Nairobi Telephone No: +254 (020) 3870272

6. Ministry of Transport, Infrastructure, Housing and Urban Development

Physical Address for Service: Transcom House, Ngong Road Postal Address: P.O. Box 52692-00200, Nairobi Telephone No: +254 (020) 2729200

7. Ministry of Environment and Natural Resources

Physical Address for Service: 12th Floor, NHIF Building, Ragati Rd, Upper Hill Postal Address: P. O. Box 30126-00100, Nairobi Telephone: (020)2716103

8. The Hon. Attorney-General

Physical Address for Service: 7th Floor, Sheria House, Harambee Avenue Postal Address: P.O. Box 40112 - 00100 Nairobi Telephone: +254-020-2227461 / 2251355

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REPUBLIC OF KENYA IN THE NATIONAL ENVIRONMENT TRIBUNAL

TRIBUNAL APPEAL NO OF 2016

BETWEEN OKIYA OMTATAH OKOITI 1ST APPELLANT KENYA COALITION FOR WILDLIFE CONSERVATION & MANAGEMENT 2ND APPELLANT

~VERSUS~

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY 1ST RESPONDENT NATIONAL LAND COMMISSION 2ND RESPONDENT KENYA WILDLIFE SERVICE 3RD RESPONDENT KENYA RAILWAYS CORPORATION 4TH RESPONDENT CHINA ROAD & BRIDGE CORPORATION (KENYA) 5TH RESPONDENT MINISTRY OF TRANSPORT AND INFRASTRUCTURE 6TH RESPONDENT MINISTRY OF ENVIRONMENT & NATURAL RESOURCES 7TH RESPONDENT THE HON. ATTORNEY GENERAL 8TH RESPONDENT

SUPPORTING AFFIDAVIT

I, OKIYA OMTATAH OKOITI, of Post Office Box 60286 – 00200, Nairobi, a resident of Nairobi

City County in the Republic of Kenya, DO SOLEMNLY make oath and state as follows:-

1. THAT I am a male adult of sound mind, a Kenyan citizen currently domiciled in Kenya and

the Appellant herein, conversant with the matters in issue and thus competent to depose this

affidavit.

2. THAT I am acting on my own behalf and on behalf of the 2nd Appellant who has duly

authorised me to swear this affidavit in support of this petition, which is filed in the public

interest against the construction of the Nairobi – Naivasha section of the Standard Gauge

Railway (hereinafter, “Phase 2A of the SGR Project”), in barefaced and contemptuous

contravention of the law and due process.

3. THAT I am aware at the media briefing on Phase 2A of the SGR Project, which was held at

the Nairobi Serena Hotel on 13th September 2016, A. K. Maina, Managing Director of the 4th

Respondent, confirmed that the respondents have collectively and variously through reckless

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acts and/or omissions decided to construct Phase 2 of the SGR project through the NNP and

the densely populated areas of Kajiado County, without regard for the law nor adequate

consideration for less controversial and more viable alternative routes for the project.

4. THAT the media briefing was curiously titled, “Media Briefing the Nairobi-Naivasha SGR

approved route,” clearly leaving no doubts that the route has already been approved.

5. THAT during the media briefing, A. K. Maina presented 22 slides on the SGR project, which

are published online at http://www.slideshare.net/starwebmaster/kenya-railways-sgr-

presentation.

6. THAT I found the following details that emerged from the media briefing to be extremely

disturbing:

a. Slide 1: the route through the NNP has already been decided on and approved

without conducting the mandatory environmental and social assessments;

b. Slide 5: commercial contracts for Phase 2 of the SGR Project have already been

signed and monies were to be disbursed soon;

c. Slide 7, 8 and 14: the SGR project will dissect the NNP in the middle.

d. Slide 10: six other optional routes for the SGR are available, and in the absence of

full environmental and social impact assessments, there is no scientific basis for

eliminating the others and approving the route through the NNP as the most viable

for the SGR project.;

e. Slide 21: The mandatory environmental and social impact assessments have not

been conducted along the entire route and will be conducted after the event as a mere

formality or ritual.

f. Slides 16 – 18: in the absence of full environmental and social impact assessments,

there is no scientific basis for the purported mitigating factors given by the 4th

Respondent.

7. THAT in contemptuous contravention of the Environmental Management and Co-ordination

Act 2015 (hereinafter, “the EMCA”), the 4th and 5th Respondents have commenced the

http://www.slideshare.net/starwebmaster/kenya-railways-sgr-presentation


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construction of Phase 2 of the SGR project through the NNP and the densely populated parts

of Kajiado County, without complying with the statutory requirement of conducting

environmental and social assessments, and getting requisite approvals from the 1st

Respondent, which by law are conditions that must be fulfilled before embarking on any

project.

8. THAT I know that to date, the 1st Respondent only approved Phase 1 of the SGR project,

being the construction of the SGR from Mombasa to Nairobi.

9. THAT I also know that whereas the 1st Respondent has not approved Phase 2 of the SGR

project, the 4th Respondent has already contracted the 5th Respondent to implement the project.

In fact, the 5th Respondent has already commenced works on Phase 2 of the SGR project by

tunnelling at Ngong Hills.

10. THAT I am aware that in contemptuous disregard of Part II (i.e., regulations 7 – 10) of the

Environmental (Impact Citation, Assessment and Audit) Regulations, 2003, (hereinafter, “the

regulation”), the proponent, the 4th Respondent, has not prepared the mandatory project report

for Phase 2A of the SGR project.

11. THAT I am informed that in contemptuous disregard of Section 58 of the EMCA and

Regulation 11 of the regulations, the works for Phase 2A of the SGR project have

commenced, including tunnelling in Ngong Hills and approval of the SGR route through the

NNP, without first conducting the mandatory environmental and social impact assessments,

and obtaining requisite approvals of the 1st Respondent.

12. THAT I aver that since no environmental impact assessment study has been conducted to

determine whether or not the selected route of Phase 2 of the SGR project will have any

adverse impacts on the protected fragile ecosystem of the NNP, it is an act of extreme

recklessness, bordering on criminal insanity, for the respondents to route Phase 2 of the SGR

project through the park.

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13. THAT I am aware that the highly publicised ground breaking ceremony for the Ngong Hills

tunnel, which is part of Phase 2 of the SGR project was held on June 16, 2016.

14. THAT I am aware that the commencement of works on the Ngong Hills tunnel on June 16,

2016 marked the start of Phase 2 of the SGR project, and works on the site have been on-

going since then, but the 1st Respondent has turned a blind eye to it and has not raised a finger

to enforce the law.

15. THAT in a confounding dereliction of its all-important duty to ensure that no projects are

undertaken without its express approval, the 1st Respondent has been silent and has not halted

the on-going illegal, unlawful and irresponsible implementation of Phase 2 of the SGR

project.

16. THAT I am aware that by giving it a blind eye and deliberately refusing to exercise its all-

important mandate to balance development and conservation in general, by preventing any

projects that have not been licensed by NEMA from being implemented, the 1st Respondent

has given tacit de facto approval to the 4th and 5th Respondents to build the Ngong Hills

tunnels as the front head of the construction of Phase 2A of the SGR Project through the NNP

and the densely populated areas of Kajiado County.

17. THAT the on-going tunnelling in Ngong confirms that the Respondents have with impunity

decided to route the SGR project through the NNP and the densely populated areas of Kajiado

County without the approval of the 1st Respondent, and without bothering to conduct

environmental and social impact assessments.

18. THAT I am aware that the 2nd and 3rd Respondents have abused their powers by making the

decision to allow the SGR Project to go through the NNP without first conducting an

environmental impact assessment study and obtaining the express approval of the 1st

respondent.

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19. THAT by authorizing the construction of SGR Project through the NNP without first

conducting environmental and social impact assessments, the 2nd and 3rd Respondents are in

breach of Article 47 of the Constitution which requires that administrative action must be

expeditious, efficient, lawful, reasonable and procedurally fair.

20. THAT without any regard for the fate of NNP, the 2nd and 3rd Respondents have irresponsibly,

irregularly, and fraudulently approved the passing of the SGR project through the NNP .

21. THAT there were violations of due process in the 2nd Respondent’s decision to grant easement

to the SGR project, including disregard for the Wildlife and Conservation Act 2013, whose

primary objective is to protect, preserve, and conserve Kenya’s unique topography, flora and

fauna.

22. THAT the 2nd Respondent has no capacity in law to grant easements in the NNP that will

degrade the park so much as to be tantamount to the park having been de-gazetted. Such

action can only be undertaken by the Parliament of the Republic of Kenya as provided for in

law.

23. THAT the sight intrusion of locating the SGR project in the NNP cannot be mitigated.

24. THAT due to the very high levels of pollution that will be caused both by the construction and

the operations of diesel trains on the SGR project, the railway system cannot co-exist with the

NNP. Once fully operational, the SGR project will gravely degrade and despoil the park.

Hence, either the park or the SGR has to relocate and, being the later entrant, it is only fair and

justifiable that the SGR project relocates.

25. THAT with the highly polluting obsolete diesel railways which are being phased out in many

parts of the world, it is fatal to the NNP to construct the diesel SGR project through the NNP

since the diesel trains will cause irreversible pollution and the ecological deterioration to the

fragile park ecosystem.

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26. THAT I reiterate that the silence of the 1st Respondent in the face of the continuing works on

the SGR Project is tantamount to the 1st Respondent having issued a de facto licence for the

project to be implemented outside the law.

27. THAT the 1st Respondent’s decision not to uphold the law by stopping the implementation of

the SGR project outside the law is in itself a decision to licence the irregular, illegal, unlawful

and unreasonable works. To quote the rock band Rush, “If you choose not to decide, you still

have made a choice.”

28. THAT the state of affairs points towards the respondents collectively working towards

confronting Kenyans with a fait accompli, and that constitutes a major threat to the public

interest in the rule of law, which is anchored on due process, as provided for in the

Constitution, statutes (and treaties and conventions ratified by Kenya), and rules and

regulations that collectively make Kenya a constitutional democracy.

29. THAT I am aware that acts and/or omissions of the respondents are violative of both the

Constitution and the Environment and Management Coordination Act, 2015 and the

regulations therein, especially as regards provisions which relate to environmental degradation

and pollution, and property rights.

30. THAT the fraudulent approval of the SGR route through the NNP and the densely populated

areas of Kajiado County was done in a clandestine manner without the involvement of the

relevant stakeholders, including host communities.

31. THAT contrary to Articles 10(2)(d), 35(1) & (3), 46(1)(b), and 232(1)(d), (e) & (f) of the

Constitution, the 4th and 6th Respondents have not released reports of any feasibility or other

studies justifying their approved route through the NNP and the densely populated areas of

Kajiado County.

32. THAT there is absolutely nothing in the public domain upon which I and other Kenyans and

even interested members of the international community can rely upon to verify any of the

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information being peddled by the 4th and 6th Respondents in support of their irregularly and

illegally chosen and approved route through the NNP and the densely populated areas of

Kajiado County. Further and in particular, there is no scientific information demonstrating:

a. That the route cutting through the NNP and the densely populated areas of Kajiado

County constitutes the best trade-off for the interests of Kenya;

b. The justification that the bridge option of the railway line running through the NNP

will not compromise the protected flora and fauna, and ultimately cause the park to

be unviable as a protected area;

c. That there will be no negative impact of the railway on wildlife densities,

distribution and movement in the NNP;

d. That consideration has been taken into account for future expansion of the SGR

project;

e. The basis for applying the untested scenarios of the impact of the massive SGR

project infrastructure in the vast Tsavo National Park to the relatively tiny NNP;

f. The impact of the railway on the aesthetic value and integrity of the NNP;

g. The real costs of the impact of the railway on the NNP, including the loss of the

ecological services and biodiversity benefits.

33. THAT I have no doubts that the NNP and the densely populated areas of Kajiado County

would have been excluded if the search for a route for Phase 2A of the SGR project had been

carried out according to the law, transparently, accountably and subject to public participation

(consultation and agreement).

34. THAT in the circumstances, routing Phase 2A of the SGR project through the NNP and the

densely populated areas of Kajiado County, without the participation of the Kenyan public,

constitutes extremely poor planning and impunity on the part of the respondents.

35. THAT the 1st Respondent has no legal capacity, by dereliction of duty, to issue the de facto

licence allowing the SGR project to be implemented in barefaced contravention of the law.

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36. THAT since Article 10(2)(d) of the Constitution pronounces sustainable development to be

among our national values and principles of governance, and Article 42 protects the right to a

clean and healthy environment, which includes the right to have the environment protected for

the benefit of present and future generations, the respondents are under the obligation to

pursue our development by adhering to our values and laws. The respondents must reject the

false choice between development and the environment.

37. THAT whereas I am not opposed to the SGR project in principle, I am totally opposed to the

reckless implementation of the project outside the law, including by not being sensitive to its

adverse effects on the environment and the property rights of the people. For example, the

construction of the SGR project through the NNP will deprive the present and future

generations their rights protected by Articles 40 and 42 of the Constitution.

38. THAT I aver that this appeal is extremely urgent and should be heard and determined on

priority bases because His Excellency President Uhuru Muigai Kenyatta is expected to

officially launch Phase 2A of the SGR Project on 26th September 2016, clearing the way for

construction to begin at the Nairobi National Park (hereinafter, “the NNP”).

39. THAT I posit that launching the project before the mandatory environmental and social

impact assessments are carried out on all possible routes to determine the most suitable one is

not only illegal, but it will automatically and arbitrarily lock out the other routes from



40. THAT since it goes without saying that after a presidential launch of the project, the 1st

Respondent will not be in a position to deny the project requisite approvals, I am totally

opposed to the environmental and social assessments being conducted after the launch.

41. THAT I also urge that launching the project before conducting full environmental and social

impact assessments renders any such exercises undertaken after the event to mere formalities

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or ritiuals meant to hoodwink Kenyans that their best interests are being considered in the

SGR project.

42. THAT under the law, environmental and social impact assessments are meant to be effective


development. They are not meant to be reactive formalities carried out after the fact. Hence, to

be valid, the assessments must by law be conditions precedent to the implementation of any

project, including its launching by the President.

43. THAT in support of my averments above, I annex hereto a bundle marked as “EXHIBIT

OOO-1” containing copies of the following documents:

a. A printout of the slides downloaded from at

http://www.slideshare.net/starwebmaster/kenya-railways-sgr-presentation, which

were presented by A. K. Maina, Managing Director of the 4th Respondent, at the

media briefing on Phase 2A of the SGR Project, which was held at the Nairobi

Serena Hotel on 13th September 2016, at pages 29 – 50;

b. News items and other articles published in the media in recent days on Phase 2A of

the SGR Project, at pages 51 – 59;

c. Pictures of the on-going works on the tunnel at Ngong Hills, downloaded from

https://m.facebook.com/story.php?story_fbid=1087859254582779&id=7911439342

54314, at pages 60 – 68;

d. A petition dated August 12, 2016, by Kajiado County Residents and other

stakeholders, to His Excellency the President opposing the routing of Phase 2A of

the SGR project through NNP, at pages 69 – 73;

e. Correspondences exchanged in January 2016, between the 2nd Appellant and the 1st

Respondent, at pages 74 – 80;




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f. A letter dated 9th September 2016 from the 1st Appellant to the 1st Respondent, at pages 81 – 84.

44. THAT it is my honest belief that it is in the best interest of justice that the appeal herewith

presented be granted urgently to stop the on-going construction of Phase 2A of the SGR

project without strict adherence to the law.

45. THAT this Honourable Tribunal has jurisdiction under Section 129 of EMCA as read with

Rule 2 of the National Environment Tribunal Procedure Rules, 2003, to adjudicate disputes

which include the failure or refusal by the 1st Respondent or its officer or committee to make

a decision.

46. THAT I declare as aforesaid from my personal knowledge and I make this solemn declaration

conscientiously believing the same to be true and according to the Oaths and Statutory

Declarations Act, save where I relied on information, sources whereof I have disclosed.

SWORN by the said OKIYA OMTATAH OKOITI at Nairobi this 19th day of September, 2016 BEFORE ME .............................................. DEPONENT

COMMISIONER OF OATHS / MAGISTRATE

DRAWN & FILED BY: OKIYA OMTATAH OKOITI, ROOM 4, FLOOR B1, BLOCK A, WESTERN WING, NSSF BUILDING, BISHOPS ROAD, P. O. BOX 60286-00200, NAIROBI.

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“EXHIBIT OOO-1”

Documents

IN THE NATIONAL ENVIRONMENT TRIBUNAL AT …...SGR Project by tunnelling in Ngong Hills, and approving the routing or the SGR project through the Nairobi National Park (hereinafter,