Pollution of the environment continues unabated in Athi River and its environs as Chinese developer Erdermann Properties Limited (EPL) and liquor manufacturer London Distillers Kenya (LDK) engage in finger-pointing and court battles.
On Tuesday, however, the Environment Tribunal and Land Court stopped the construction of over 600 housing units by EPL until the matter is heard and determined by a Nairobi court.
This is the second time the construction has been halted, with the first order made by the National Environment Tribunal on September 6, 2019, over pollution concerns.
Another earlier application had been made before the National Environmental Tribunal in Nairobi to compel NEMA to order the immediate closure and sealing of the Great Wall Garden Estate phase 1 and 2 comprising 2000 residential units being constructed without wastewater treatment plant and sewer line for the purposes of disposal of its raw effluents.
As a result, they were stopped from continuing with the construction on land parcel L.R No. 12581/13 but they claimed that they stood to “suffer irreparable loss and grave injustice.”
House team visit
Following numerous allegations and counter-allegations, the National Assembly, Departmental Committee on Environment and Natural Resources last year conducted an inquiry to establish the extent of environmental pollution in the area.
The committee in its report noted that Nema licence to EPL to develop a residential property in the vicinity of the LDK, was despite the fact that the authority knew very well the potential conflict of such a decision.
The committee also revealed that the EPL acquired land adjacent to the factory fully aware that the area and its environs were zoned for industrial use.
The Nema acting Director-General Mamo Boru told People Daily that going forward they would not licence any project in any county unless they comply with the zonation and a clearly marked buffer zone between industrial and residential areas.
“The main cause of the conflict was the mixed land use — industrial and residential — in Mavoko. It was made worse by the peace-meal approval of change of use by the Machakos County Government,” he said.
LDK/Erdermann wall
The current construction of phase three shares a perimeter wall with LDK which the latter has cited as a possible cause of conflict as it did not consider the buffer zone, as provided by the law.
EPL, after being ordered to stop construction over sewerage disposal concerns, sought ex-parte orders on December 20 last year to continue with the construction undertaken by a Chinese investor.
One of the EPL’s completed apartments is discharging raw effluent to the aquatic environment, thereby endangering the residents’ health.
However, EPL Head of Planning Mr. John Rajwayi during an interview maintained that they had put in place an elaborate sewerage system complete with a stormwater drainage system and once completed it will effectively put the contentious matter of sewage disposal to rest.
In a letter dated July 14, filed under a certificate of urgency, LDK sued the Nema for licensing the project and failing to consult them during an environmental impact assessment report compilation.
LDK has also argued that building the houses adjacent to the factory was a breach of industrial and planning regulations.
‘Fully aware’
In one of the reports, a parliamentary committee noted that EPL “engaged in its property development business in the area fully aware of its neighbourhood” and was engaged in an ambitious expansion of its housing estates in the same location.
This is despite the fact that a matter is pending before the court.
Section 124(9) of the Environment Management and Co-ordination Act states that upon any appeal to the Tribunal, the status quo of any matter or activity which is subject of the Appeal shall be maintained until the appeal is determined regarding pollution allegations, LDK has maintained that they are not polluting the environment and has an existing sewer connection agreement with Export Processing Zones Authority (EPZA) since 2013.
The agreement authorizes the connection of LDK factory’s pre-treated effluent to the EPZA Wastewater Treatment Plant.
“The LDK does not discharge to the environment but to the sewer line,” LDK Environmental Advisor Mr. Benjamin Langwen submitted.
The EPZA chairman Paul Gichure on Wednesday confirmed the agreement but said it was not formal.
“The two parties have been engaging in very serious fights but we are reviewing all the connections. It is not formal but through a court order. We are going to enter into formal agreements soon where everyone will have to comply with environmental laws,” Gichure said.
After being ordered to stop construction, EPL then moved to Environment and Land Court in Machakos where they were given orders to continue with the construction.
LDK would later move to the same court to have the orders varied or set aside pending the hearing and determination of the substantive Notice of Motion.
In the application, EPL was accused of misleading the court and active concealment of material facts so as to mislead the court.
“The application (by EPL) was brought to court with unclean hands and was grounded on wilful misrepresentation of facts and active concealment of material facts which misled the court in granting the orders,” LDK stated.
Justice Oscar Angote on October 18 ruled that the orders he gave on September 12 “were given by the court on the basis of non-material disclosure by the ex-parte applicant (Edermann).”
“The same should therefore be set aside to allow the Tribunal perform its mandate as per the law,” Justice Angote ruled.
Among the issues that the distiller had raised earlier were that Erdermann should not have been allowed to construct residential houses in the area where there was already a presence of industries.
The company argued that the proposed development will impact negatively on the environment as the project site is within a mixed-use zone and that there is evidence contained in an Environmental Impact Assessment (EIA) report that, having a residential housing project within a zone where a number of industries are located was not desirable.
The distillery which was established over 35 years ago stressed mixed use of industrial and residential area not compatible projects within such a zone.
“The proposed housing project is not compatible with the company operations and other industries within the project zone. If it is allowed, it will be a major source of conflict in the future,” LDK Environmental Advisor Mr. Benjamin Langwen submitted.
The officer further said the housing project will require massive water for domestic use and the aquifers were currently over-abstracted thus drilling of more boreholes should not be allowed.
LDK informed the court that two of its boreholes had already dried up due to previous housing development by Great wall Housing Development, which the distiller had also opposed.
“Apart from the water problem the project site has no sewer line and this will be a major disaster in future if the housing project is allowed, “Langwen submitted adding that EPL had filed about 6 applications to challenge orders issued by the Environment Court.
He further accused EPL of abusing, disregarding and disrespecting the Court process by filing several parallel proceedings within different Courts in a bid to shop for suitable Orders.
