REPUBLIC OF KENYA IN THE NATIONAL ENVIROMENTAL TRIBUNAL AT NAIROBI TRIBUNAL APPEAL NO.

NET/ /2012 THE EAST AFRICAN WILDLIFE SOCIETY ...1ST APPELLANT AFRICAN NETWORK FOR ANIMAL WELFARE SUING THROUGH ITS EXECUTIVE DIRECTOR JOSPHAT KISUI NGONYO..2ND APPELLANT PAULA KAHUMBU..3RD APPELLANT VERSUS DIRECTOR GENERAL /NEMA....1ST RESPONENT KENYA NATIONAL HIGHWAYS AUTHORITY.2ND RESPONDENT MINISTRY OF ROADS....3RD RESPONDENT GROUNDS OF APPEAL The Appellants grounds of Appeal are as hereunder:1. THAT

the

National

Environmental

Management

Authority (NEMA) the 1st Respondent herein, issued No. 0008121 dated 18th February 2011 to the 2nd Respondent and in which, among other things, the following conditions were provided: 2.2. The Proponent (the 2nd Respondent) shall not encroach on gazetted parks (Nairobi National Park).
1

2.3 The Proponents shall

ensure that the

sections of the road along the Nairobi National Park, Ngong and Dagoretti natural forests should be implemented in close consultations and agreement with the Kenya Wildlife Service, Kenya Forest Service and other relevant authorities.

2. THAT the 2nd Respondent has, in breach of the

conditions of the licence mentioned in paragraph 1 above, proceeded, through the 3rd Respondent, to negotiate with the Kenya Wildlife Service, the trustees of Nairobi National Park, for a strip of land along the Northern edge of the Park be made available as a Transport Corridor to accommodate the Nairobi

Southern By Pass and the Nairobi Railway By Pass. The amount of land which had been taken up from the Park by the actual Transport Corridor is approximately 60 hectares.

3. THAT arising from above, detailed design,

mapping

and

survey of the proposed Transport Corridor

encroaching on the Nairobi National Park has already

2

been finalized and running between Mombasa Road and Langata Road.

4. THAT

the

Lead

Experts

African

Waste

and

Environmental Management Consultants, in the EISA report dated 31st August 2010 did not address themselves to environmental and ecological impacts of the proposed Transport Corridor since, at time as at the

of the submission of the report to the 1 st

Respondent, they had no instructions to consider such impact or carry out public participation as has been stated in the said report and as hereunder:Page xiii The Proposed Southern Bypass may encroach the edge of the Nairobi National Park along the existing service road running from Mombasa Road through to Langata Road. Negotiations

between the Kenya Wildlife Service (Nairobi National Park) and the proponent (KeNHA) are at an advanced stage and soon they will come to a consensus. However, the impacts will not be

adverse since the bypass follows the boundary of the National Park and thus do not effect
3

movement routes, mating grounds and corridors followed by the wild animals.

5. THAT, in addition, the minutes of the alleged public

meeting held outside Ole Sereni Hotel, off Mombasa Road on 26th August, 2010, minute 2/08/10 contained in the EISA report aforesaid, recorded that: The lead consultant also explained to those present the environmental implications

anticipated. This gave the public a clear picture of what the project is all about. They indicated that the Southern Bypass will start from

Mombasa Road near the former U.S.A. Embassy (present day Ole Sereni Hotel) with an

interchange in the form of an overpass made at junction with service roads all the way past Carnivore, with double lanes of 7m width

separated by 3m in between and a 2.5m walkway. He explained that this is per the

preliminary designs and it may go through the park to provide for the required space for the airport, The road will run along the Nairobi National Park, and crosses over Langata Road
4

through Ngong Forest and over Ngong Road through Dagoretti, Thogoto and end in Kikuyu.

6. THAT the aforesaid alleged public meeting was flawed

to the extent that the lead expert failed and/or neglected to provide the truth and/or facts as far as they related to the Transport Corridor.

7. THAT the decision by the 2nd

and 3rd Respondents

that the Southern By Pass encroaches the Park was made after the granting of the ESIA licence.

8. THAT negotiations between the 3rd Respondent and

Kenya Wildlife Service are at an advanced stage to, among other things, pay Kenya Wildlife Service the amount of Kshs. 1.8 billion or thereabout as

reparations for the encroachment aforesaid.

9. THAT the Appellant, stakeholders and the public have

not and are not participating in the negotiations for reparations aforesaid hence they are unable to know how the said amount of Kshs. 1.8 billion is arrived at

or what percentage will go towards environmental and ecological conservation of the Nairobi National Park.

10. THAT

the

National

Environmental

Management

Authority (NEMA) the 1st Respondent herein, therefore issued the licence aforesaid without taking into consideration the adverse environmental social and ecological impact to the wildlife and other species in the construction the Transport Corridor and

encroachment to the Nairobi National Park.

11. THAT

the

1st to

Respondent consider the

did

not

have in

the the

opportunity

impacts

construction of the Transport Corridor which in any event was not provided for in the EISA aforesaid and which would have included the following:a) Ecological speeches. b) Mitigation measures. c) Environmental management plan. d) Public participation. e) The no action alternative including the Impact on wildlife and other

construction of an underground Transport

6

Corridor on the subject site, acquisition of illegally acquired land outside the Nairobi National Park and rerouting the Transport Corridor or seeking for alternative route to join the Southern Bypass. f) The use of the said Kshs. 1.8 billion or part thereof to compulsorily acquire adjoining land outside the Nairobi National Park.

12. THAT

the

1st

Respondent

granted

the

licence

aforesaid without the 2nd Respondent having made full disclosure of the proposed Transport Corridor to the 1st Respondent

13. THAT the public hearings were not held for the

purpose intended under the Act and regulations as far as they relate to the section relating to the Transport Corridor.

14. THAT the project questionnaire developed by the EIA

expert aforesaid on behalf of the Second Respondent, was not distributed to all stakeholders as far as it related to the proposed Transport Corridors which in
7

any event was not part of the lead experts brief by the 1st Respondent.

15. THAT the 1st Respondent in approving the licence,

failed to consider that the EIA study process being irregular and flawed.

16. THAT while the Appellants are not opposed to the

construction development

of of

the the

Southern much

Bypass needed

and

the

transport

infrastructures in Kenya, they are opposed to the encroachment of the Nairobi National Park. Nairobi National Park is the only wildlife The park

bordering a major city in the world, its relatively small, only 117sq km. It is home to wide range of fauna and flora, including rhinoceros, buffalo giraffe, zebra, hippopotamus, a dozen species of antelope lion cheetah, leopard crocodile, several hundred species of birds, countless smaller animals, and a huge variety of trees, shrubs, herbs and grasses. Some animals

remain within the parks boundaries all the year around as can be seen from the comfort of Ole Sereni Hotel and neighboring residential areas. It is therefore
8

important that the Nairobi National Park retains its unique character and biodiversity and migratory routes must continue to be available and human interference, domestic effluent, escalation of industrial pollutants entering the Park must be avoided at all costs.

REASONS WHEREOF the Appellants pray that:a) The Tribunal issues a stop order on the

construction of the Transport Corridor as between Mombasa Road and Langata Road until the final determination of this appeal. b) The Tribunal revokes, sets aside or amends the EIA Licence Number 0008121. c) The Tribunal orders for a fresh

environmental impact assessment study report relating to the said Transport

Corridor. Dated at Nairobi this day of 2012.

MEREKA & COMPANY ADVOCATES FOR THE APPELLANT

9

DRAWN & FILED BY:MEREKA & COMPANY ADVOCATES UKULIMA CO-OP. HSE. 7TH FLOOR P.O. BOX 41620-00100 NAIROBI
South bypass, mk DT

10