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

Respondent Ministry of Petroleum and Mining..........................................2nd Respondent

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

TEAM NUMBER – 18

MEMORIALS FOR THE RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................ ii

LIST OF ABBREVIATIONS..........................................................................................................iii

LIST OF LEGAL AUTHORITIES....................................................................................................iv

REFERENCES............................................................................................................................. v

STATEMENT OF RELEVANT FACTS........................................................................................... vi

LEGAL ISSUES FOR DETERMINATION.......................................................................................ix

SUMMARY ARGUMENTS.......................................................................................................... x

SUBSTANSIVE ARGUMENTS..................................................................................................... 1

PRAYERS................................................................................................................................. 14

ii
 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 assessment

iii
 LIST OF LEGAL AUTHORITIES

INTERNATIONAL INSTRUMENTS

African Convection on the conservation of Nature and natural resources (1968)

Convection on Biological Diversity, 1992.

NATIONAL INSTRUMENTS

1. The Constitution Of Kenya, 2010

2. The Climate Change Act no 11 of 2016.
3. Environmental Management and Co-ordination Act no 8 ,1999.
4. Environmental (Impact Assessment and Audit) Regulations, LN Number 101 of
2003,
5. Mining Act no 12 of 2016.

LIST OF CASES

1. Sustaining the Wild Coast NPC and 8 others vs Shell Exploration and Production and
4 others HC of S.A (3491/2021)
2. Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of
Energy & 17 others [2015] eKLR.
3. Nairobi Metropolitan Psv SaccosUnion Limited &25; others v County Of Nairobi
Government & 3 others [2013] eKLR
4. Musimba v The National Land Commission & Others [2016] 2 EA 260
5. Beth Mugo & 7 others v Director General NEMA & Silver Crest Enterprises Limited,
NET/23/2007 at 5.
6. National Association for the Financial Inclusion of the Informal Sector v Minister for
Finance & Another [2012] Eklr
7. NAFIS V Minister for Minister for Finance and Another, 2012
8. (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
2006 (2) SA 311 (CC))”

iv
9. Simon Otwori and 7 others Vs Lake Victoria South Weather Service Board and 6
others
10. Sustaining the Wild Coast NPC and 8 others vs Shell Exploration and Production and
4 others HC of S.A (3491/2021)

REFERENCES

1. Migai Akech Draft of 20th July 2015 Administrative Law & Governance Project
University of Nairobi, School of Law.
2. Temporary threshold shift in bottlenose dolphins exposed to mid-frequency tones.
Journal of the Acoustical Society of America 118:2696-2705.
3. 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.
4. Understanding the impacts of anthropogenic sound on beaked whales. Journal of
Cetacean Research and Management 7:177-187.

v
 STATEMENT OF RELEVANT FACTS

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)
license.

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 out of their own discretion, and in compliance with
Regulation 17 of the regulations which provides 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 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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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.

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.

(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

vii
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.

Kitutu Community Members Association has filed a petition to the Environment and
Land Court against NEMA, BV Impact and the Ministry of Petroleum and Mining. The
jurisdiction of the Court is uncontested

viii
 LEGAL ISSUES FOR DETERMINATION

(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?

ix
 SUMMARY ARGUMENTS
This is a case economic development facing a threat of procedural technicalities. The only
option is not to stop the project and invalidate the ESIA license.

On the issue of whether public participation was properly done, we aver to this court that
public participation was properly done. Public participation being one of the national values
in Article 10 of the Constitution of Helaya, 2010 should be considered, however, we should
take note that public participation process has not been outlined in the Constitution. This was
held in the case of National Association for the Financial Inclusion of the Informal
Sector v Minister for Finance & Another [2012] eKLR, Majanja J, held as follows at
Page 195 as regards public participation:

The allegation that there was improper public participation is alleged out of a common
misunderstanding of how public participation should be conducted. The process of how
public participation should be conducted was outlined in the case of Mui Coal Basin Local
Community & 15 others v Permanent Secretary Ministry of Energy & 17 others as
outlined in our paragraph 2 of our written submissions.

NEMA did as required by Regulation 22 and Section 59 and 60 of the EMCA Act. We should
take note that MAY is discretionary and not mandatory. Public participation does not
mean that public views must prevail, this is well elaborated in paragraph 4 of our written
submission.

On issue number 2, we submit to this court that the grant and renewal of the prospecting
licence was procedural. The decision-making authorities in this case the Ministry of Mining
and National Environmental Management Authority provided a fair administrative right that
is lawful, reasonable and procedurally fair in granting and renewal of the prospecting license
for BV Impact as required by the law in the Constitution of Helaya 2010 Under Article
47(1) that provides “Everyone has the right to administrative action that is lawful, reasonable
and procedurally fair.”1

On issue number 3, on Whether the project proponent erred by failing to conduct

climate impact and vulnerability assessments, from the facts of the case it is clearly
known to us that the report submitted by BV Impact failed to make any climate impact
assessment or vulnerability assessment. However, the initial environmental impact
assessment study report that was submitted by BV Impact listed Helaya’s Climate Change
1
Constitution of Kenya 2010.

x
Act, 2016 as one of the laws relevant to the preparation of and applicable to the study report.
The climate act of 2016 was listed but not incorporated into the report because climate
change is a progressive realization which means it is a goal which cannot be immediately be
attained but slowly attained through supportive measures taken such the one of listing it in
the report to create awareness of climate change.

Issue number 4 reads, 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. We aver to this court that the1st Respondent erred by failing to publicize
the grant of the environmental impact assessment licenses and failure to enable the Petitioner
access information since he is not obligated under any law to publicize it.

On the last issue, which states; Whether the seismic surveys would cause negative impacts
to the livelihood, marine resources, and culture of the Kitutu Community Members
Association. It is good to note that up to date there is no conclusive research that has been
done to show the effects of seismic survey. The only effects that are available are temporary
and only in theory and therefore, it should not be reason for denying the whole country a
chance to develop economically.

PRAYERS

1. That the petition be dismissed.

2. That the BV Impact renewal license be granted and the project continue
3. Every party to bear its cost.

xi
xii
 SUBSTANSIVE ARGUMENTS
This case involves a threat to economic development due to procedural technicalities.
a) Whether the environmental impact assessment study report was subjected to a
proper public participation process?
1. In accordance to the EMCA Act Section 59, “the Authority shall cause to be
published for two successive weeks in the Gazette and in a newspaper circulating
in the area or proposed area of the project a notice which shall state (a) a
summary description of the project.”2 In paragraph 10 of the moot problem, 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.NEMA was in compliance with the aforementioned provision.
A month later as per paragraph 11 of the moot problem,NEMA in its own discretion
as provided for in regulation 22 of the EIA regulations which provides,” (l) Upon
receipt of both oral and written comments as specified Public hearing. by section
59 and section 60 of the Act, the Authority may hold a public hearing,3 conducted
the public hearing as per paragraph 13 of the moot problem. We should take note that
may is discretional and not mandatory.
2. Guidelines for an effective public participation were outlined in the case of 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 the
minimum basis for adequate public participation as follows:-

“97. From our analysis of the case law, international law and comparative law, we find
that public participation in the area of environmental governance as implicated in this
case, at a minimum, entails the following elements or principles:

a. First, it is incumbent upon the government agency or public official involved to

fashion a programme of public participation that accords with the nature of the subject
matter. It is the government agency or Public Official who is to craft the modalities of
2
ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT
No. 8 of 1999
3
THE ENVIRONMENTAL (IMPACT ASSESSMENT AND AUDIT) REGULATIONS, 2003

1
public participation but in so doing the government agency or Public Official must take
into account both the quantity and quality of the governed to participate in their own
governance. Yet the government agency enjoys some considerable measure of
discretion in fashioning those modalities.

b. Second, public participation calls for innovation and malleability depending on the
nature of the subject matter, culture, logistical constraints, and so forth. In other
words, no single regime or programme 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.

Sachs J. of the South African Constitutional Court stated this principle quite concisely
thus: “The forms of facilitating an appropriate degree of participation in the law-
making process are indeed capable of infinite variation. What matters is that at the end
of the day, a reasonable opportunity 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. (Minister of
Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311
(CC))”

c. Third, whatever programme of public participation is fashioned, it must include

access to and dissemination of relevant information.

d. Fourth, 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. A public participation programme, especially in environmental
governance matters must, however, show intentional inclusivity and diversity. Any clear
and intentional attempts to keep out bona fide stakeholders would render the public
participation programme ineffective and illegal by definition. In determining inclusivity
in the design of a public participation regime, the government agency or Public Official
must take into account the subsidiarity principle: those most affected by a policy,
legislation or action must have a bigger say in that policy, legislation or action and
their views must be more deliberately sought and taken into account.

2
 e. Fifth, 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. However, there is a duty for the
government agency or Public Official involved to take into consideration, in good faith,
all the views received as part of public participation programme. 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.

f. Sixthly, 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 will be most affected by the decision or policy at hand.”4

3. The Constitution of Kenya 2010,Article 10 provides that Public participation is one

of the national values. However, it has not outlined how it should be conducted as it
was held in The case of 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 .Also in
the case of National Association for the Financial Inclusion of the Informal
Sector v Minister for Finance & Another [2012] eKLR, Majanja J, held as
follows at Page 195 as regards public participation:

“24. I agree that public participation as a national value is rooted in the fact that
Kenya is a democratic state and that public participation fulfills and complements the
other values of good governance, transparency and accountability. 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.”6Following the above provision, NEMA followed the principles outlined in the
Mui case as there is no constitutional provision on the procedure of public
participation.

4
Constitutional Petition No. 305 of 2012 , Mui Coal Basin Local Community & 15 others v Permanent
Secretary Ministry of Energy & 17 others.
5
National Association for the Financial Inclusion of the Informal Sector v Minister for Finance & Another [2012]
Eklr
6
National Association for the Financial Inclusion of the Informal Sector v Minister for Finance & Another [2012]
eKLR.

3
 4. Public participation does not dictate that everyone must give their views on an issue
of environmental governance. This was averred in Musimba v The National Land
Commission & Others [2016] 2 EA 260, 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.”7 To have such a standard would be to
give a virtual veto power to each individual in the community to determine
community collective affairs. 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 preceded with those present being the representatives of the
community.
5. 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) of the EIA.8 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.9
The ‘may’ has been used to prove the democratic role of the office holders.

Authority may hold a public hearing. The ‘may’ used is discretionary and not
mandatory.
6. 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.

7
Musimba v The National Land Commission & Others [2016] 2 EA 260, a 5 Judge-Bench comprising Lenaola J.
8
THE ENVIRONMENTAL (IMPACT ASSESSMENT AND AUDIT) REGULATIONS, 2003
9
The Environmental (Impact Assessment and Audit) Regulations, 2003
4
 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 defense of their
ignorance.
7. 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
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.
8. 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,
2013 in which Lenaola J (as he then was) cherished that public participation is not
the similar as saying that the public views must prevail. 10 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.

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

The decision-making authorities in this case the Ministry of Mining and National
Environmental Management Authority provided a fair administrative right that is lawful,
reasonable and procedurally fair in granting and renewal of the prospecting license for BV
Impact as required by the law in the Constitution of Helaya 2010 Under Article 47(1) that

Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others –v- County Government of
10

Nairobi & 3 Others Petition No. 486 of 2013

5
provides “Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.”11

1. Procedural fairness in the grant of the prospecting license

From the facts of the case, BV Impact applied for an exploration license for which after
following all the procedures prescribed by the law, was issued by the Ministry of Mining on
29 May 2013. One of the most crucial requirements for the grant of this license was the
submission of proof environmental impact assessment license as required by Section 103 (1)
of The Mining Act provides that: ’The Cabinet Secretary, on recommendation of the Mineral
Rights Board, may grant a mining license if satisfied that— (c) the applicant has obtained an
approved environmental impact assessment license , a social heritage assessment and
environmental management plan in respect of the applicant's proposed mining operations.’i
Since NEMA approved the EIA report and granted the EIA license, the Ministry of Mining
was right in law to grant the prospecting license to BV impact. One may pose a question on
the Social Heritage assessment and environmental management plan as listed in the act.
These two depends on the environmental impact assessment carried out initially.
Environmental management (rehabilitation) plan and Social Heritage Assessment is not a
mandatory requirement but only imposed on the project proponents if the project has adverse
effects to the environment and social heritage respectively while initially carrying out the
Environmental impact assessment. The Seismic surveys do not cause any adverse effects to
the environment or rather the social heritage of the community thereby no need to submit the
two assessment but only the EIA license is needed in acquiring the prospecting license.

2. Procedural fairness in the renewal of the prospecting license

The law requires one to have proof of submission of an environmental audit before granting
of a renewal under Section 82 (1) (e) of the Mining Act: An application for the renewal of a
prospecting license shall be accompanied by— (e) proof of submission and approval of
environmental audit reports relating to the initial application and the application for renewal,
to the National Environmental Management Authority. 12Environmental audit reports are the
documentation of the risk to the environment caused by the project and the mitigation plan to
11
Constitution of Kenya 2010.
12
Section 82 (1) (e) of the Mining Act.

6
combat it. The Environmental Impact Assessment initially carried out to evaluate
environmental effects of the Seismic Surveys shows there is no adverse effect of the process
to the environment. This is clearly supported by expert advice on Seismic surveys as outlined
on issue five. In the view of the fact there is no adverse effects there is no requirement to
carry out an environmental audit by the authority. The authority in this case, NEMA, was
tasked with carrying out the audits as required by Section 68 (1) of the Environmental
Management and Co-ordination Act “ that The Authority shall be responsible for carrying
out environmental audit of all activities that are likely to have significant effect on the
environment”13 . The renewal of the prospecting license was thus procedurally conducted and
lawful in relation to the matter of environmental audit reports.

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

The contention in this issue is the failure of the project proponent in incorporating the climate
risk and vulnerability assessment as required by the law in the Climate Change Act, 2016
Under Section 20: “The Authority 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”14 and Section 15 (5) (a) of the Climate Change Act , “that each state
department and national government public entity shall have the following duties— (a)
integrate the climate change action plan into sectoral strategies, action plans and other
implementation projections for the assigned legislative and policy functions.”15

However, we should get to understand the definition of the word ‘Authority’ and ‘integrate’
which is important in interpreting this law. Under Section 2 of the interpretation of the
Climate Change Act “defines authority as the National Environmental Management
Authority established by the Environmental Management and Coordination Act, 1999 or its
successor legislation and integrate according to Meriam Webster Dictionary means to form,
coordinate, or blend into a functioning or unified whole.”16 Therefore, NEMA was the one
with the task to combine the climate risk and vulnerability assessment into the Environmental
impact assessment guidelines. This concludes that by BV impact complying by the guidelines
of carrying out the environmental impact assessment and even being issued with a license
shows that they conducted the climate impact assessment as it is integrated into the EIA.
13
Section 68 (1) of the Environmental Management and Co-ordination Act
14
Climate Change Act, 2016 Under Section 20.
15
Section 15 (5) (a) of the Climate Change Act
16
Section 2 of the interpretation of the Climate Change Act,2016.

7
From the facts of the case it is clearly known to us that the report submitted by BV Impact
failed to make any climate impact assessment or vulnerability assessment. However, the
initial environmental impact assessment study report that was submitted by BV Impact listed
Helaya’s Climate Change Act, 2016 as one of the laws relevant to the preparation of and
applicable to the study report. The climate act of 2016 was listed but not incorporated into the
report because climate change is a progressive realization which means it is a goal which
cannot be immediately be attained but slowly attained through supportive measures taken
such the one of listing it in the report to create awareness of climate change. This was the
Judgement in the high court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2
others “for such rights that gave meaning to the term ‘progressive realization’ as to was
neither a stand-alone nor a technical phrase. It simply referred to the gradual or phased-
out attainment of a goal-a human rights goal which by its very nature, could not be
achieved on its own, unless first, a certain set of supportive measures were taken by the
State. The exact shape of such measures would vary, depending on the nature of the right
in question, as well as the prevailing social, economic, cultural and political environment.
Such supportive measures could involve legislative, policy or programme initiatives
including affirmative action.”17

The United Nations Human Rights Commission provides for climate change as a human
right stating that States have a human rights obligation to prevent the foreseeable adverse
effects of climate change and ensure that those affected by it, particularly those in vulnerable
situations, have access to effective remedies and means of adaptation to enjoy lives of human
dignity. However, this right to climate change is progressive because it is dependent on other
factors. For instance, for the state to cut off on greenhouse emission it couldn’t immediately
abolish fossil fuels but put measures such as public education on use of public transport or
use of better cars. Measures such as abolishing the use of fossil fuels can lead to economic
disaster on the country due to numerous oil companies paying tax, matatu sector and many
others. This clearly indicates on the balance of convenience economic priorities that are
crucial to the nation cannot be overridden by rights which are achieved through progressive
realization. It is for this matter that we see it not wrong to by failing to incorporate climate
impact assessment or vulnerability assessment immediately onto the project. The court should
also find that we didn’t error in failing to submit the report but we listed the climate change

17
Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa
(Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgment).

8
act so as to ascertain that in the course of the project we are bound by the provision and
would take progressive measures that do not jeopardize the project.

(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. It is our submission in light of this issue that the 1stRespondent(NEMA) did not err by
failing to publicize the grant of the license and therefore did not deny the petitioners access to
information. 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.

The 1st Respondent was only mandated to publicize the study report which they did but they
are not obligated to publicize the grant of the license under any law.

9. 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, 2007. As the Tribunal noted in those
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.

9
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. 18

10. There being no statutory provision that requires the first respondent to publicize the
grant of the license, NEMA is not obligated to do so.

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

11. Seismic survey means the geologic or geophysical activities and operations necessary
or useful to determine the potential location of subterranean oil, gas or related
hydrocarbon deposits using vibroseis equipment.19
12. BV impact in conducting the seismic survey was acting in the benefit of the general
public of Helaya country .They were in accordance with the African Convection that
provides

“ 1. The provisions of this Convention shall not affect the responsibilities of Contracting
States

concerning:
18
Beth Mugo & 7 others v Director General NEMA & Silver Crest Enterprises Limited, NET/23/2007 at 5.
19
www.lawinsider.com/dictionary/seismic-survey.

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 a) the paramount interest of the State,

b) "force majeure",

c) defense of human life.

2. The provisions of this Convention shall not prevent Contracting States:

a) in time of famine,

b) for the protection of public health,

c) in defense of property,

to enact measures contrary to the provisions of the Convention, provided their application
is precisely

defined in respect of aim, time and place.”20

13. 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)

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 our case, the petitioners claim in paragraph 13 of the moot problem that they lacked
sufficient knowledge to understand oil and gas issues and yet they claim that it will
bring effects to their livelihoods, in which they are contradicting themselves.

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”

20
AFRICAN CONVENTION ON THE CONSERVATION OF NATURE AND NATURAL RESOURCES (1968)

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 14. The petitioners in this case have not proven how the seismic survey will affect them
negatively. For an injunction to be granted, there is a three test principle that has to be
met in accordance to the holding of the Giella vs Cassman Brown , "First, an
applicant must show a prima facie case with a probability of success. Secondly, an
interlocutory injunction will not normally be granted unless the applicant might
otherwise suffer irreparable injury, which would not adequately be compensated by
an award of damages. Thirdly, if the court is in doubt, it will decide an application
on the balance of convenience.”21The petitioners in this case have failed to prove the
irreparable damage they would suffer. This was also held in the case of Nguruman
vs Jan Bonde Neilsen, “ …the applicant must establish that he ‘might otherwise’
suffer irreparable injury which cannot be adequately compensated remedied by
damages in the absence of an injunction, this is a threshold requirement and the
burden is on the applicant to demonstrate, prima facie, the nature and extent of the
injury. Speculative injury will not do; there must be more than an unfounded fear
or apprehension on the part of the applicant. The equitable remedy of temporary
injunction is issued solely to prevent grave and irreparable injury; that is injury that
is actual, substantial and demonstrable; injury that cannot ‘adequately’ be
compensated by an award of damages.”22
15. Seismic survey assessment has only been limited to individual environmental
assessment that only focuses on the loudest sound source. 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.23
The guns emit a very low frequency but loud blast of sound directed at the seabed.
Because the sound waves are very long – lower frequencies have longer waves and
hence they would not adversely affect the marine life.24
Types of potential effects to the fish when exposed to underwater seismic sounds
16. Up to date there has been no conclusive scientific study to prove the effects of seismic
survey. The effects that are at the public domain are in theory. Some of the effects on

21
Giella Vs. Cassman Brown & Co. Ltd (1973) EA 358.
22
Nguruman Ltd. Vs. Jan Bonde Nielsen CA No. 77 of 2012.
23
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.
24
https://coastalreview.org/2015/06/seismic-survey-advantages-and-controversy/

12
 marine life which are in theory are stress, neurological effects, bubble formation, and
other types of organ or tissue damage.25
17. There are three potential effects that can occur on fish due to seismic sounds:
pathological, physiological, and behavioral.Howevere, Proposed seismic surveys are
not likely to cause either pathological or physiological effects to fish. This is 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. Hence the
seismic surveys are only likely to cause behavioral temporary effects on the fish.
18. These behavioral effects are only likely to cause the fish to escape from the area in
which seismic survey. 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.
Permanent Threshold Shift (PTS) injury in mammal
19. 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 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. 26
In summary, as was decided in the case of AG vs Bansraj by Brathwaite J.A a judge
must, “hold the scales of justice evenly not only between man and man but also
between a man and State. “This project is for the greater benefit of the residents of
Helaya. Hence as was held in the case of Simon Otwori and 7 others Vs Lake
Victoria South Weather Service Board and 6 others, “the court declined to grant
an injunction because a disputed project was for the public benefit.”27

25
https://www.oilandgaslawyerblog.com/how-do-seismic..
26
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.
27
Simon Otwori & 7 others vs Lake Victoria Weather Service Board & 6 others (2018) Eklr.

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 PRAYERS
Your Honor, the respondents pray for the following;

1. That the petition be dismissed.

2. That the BV Impact renewal license be granted and the project continue

3. Each party to bear its own cost.

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