NEW MUTHAIGA RESIDENTS ASSOCIATION V.DIRECTOR GENERAL NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY(NEMA),GEMINI PROPERTIES LIMITED. Country/Territory Kenya Type of court National - higher court Date Aug 15, 2008 Source UNEP, InforMEA Court name National Environment Tribunal at Nairobi Seat of court Nairobi Judge Kanairu, D.Waudo, J.Njihia, J.Ojienda, T. Language English Subject Environment gen. Keyword EIA Environmental planning Environmental security Environmental standards Abstract The Appellant appealed against the 1st respondents approval and licensing of the 2nd respondents conversion of a residential plot in New Muthaiga estate in Nairobi to a commercial centre, stating that: The area where the 2nd respondent proposes to build a commercial centre is an exclusive residential; The proposed shopping complex would strain limited resources in the area; The road in the area,specifically,Thigiri ridge road is too narrow to accommodate increased human and vehicular traffic during construction and after the project; If not properly managed the waste water generated from the proposed facility would pollute water used by the residents of New Muthaiga estate for domestic purposes; On the grounds stated the appellant asked the tribunal to reverse the 1st respondents decision approving development of a commercial centre on the plot in question and to cancel the EIA (Environmental Impact Assessment) license issued by the 1st respondent to the 2nd respondent. The 1st respondent filed a reply to the appeal in which it; Denied approving conversion of the plot in question to a commercial centre ;contended that its approval of the 2nd respondents EIA study report was in line with the requirements of the EMCA(Environmental management and coordination Act of 1999) and audit regulations of 2003; On these bases, the 1st respondent asked the tribunal to strike out the appeal. The second respondent also filed a reply to the appeal stating that: Objections to a grant of EIA license are made prior to and not after a grant of an EIA license; Objections to change of user are made to the physical planning authorities and not to the national environmental tribunal; Objections to change of user are made prior to and not after approval of change of user; In summary, the tribunal found that, there was no meeting of minds between NEMA,the DEO,DEC,the 2nd respondents EIA expert and the project proponents on the exact nature and character of the development the 2nd respondent intended to undertake in New Muthaiga Estate; it is also apparent that while the 2nd respondent presented an EIA project report indicating that the proposed development was a hotel,NEMA approved a commercial centre and licensed commercial facilities; its also clear that the 2nd respondent intended to undertake a much bigger development than the one approved by NEMA;considering the nature of the project as described in by the 2nd respondent the tribunal concludes that the 2nd respondent failed to fully disclose material facts to NEMA concerning the project and the failure is fatal, clearly in breach of regulation 7 of the EIA regulations; therefore NEMA did not have all the information necessary for it to determine whether the proposed development, in totality would have adverse impacts on the environment and should be properly mitigated with appropriate measures.