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IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.

OF 2016
1ST APPELLANT

OKIYA OMTATAH OKOITI


KENYA COALITION FOR WILDLIFE
CONSERVATION & MANAGEMENT

2ND APPELLANT
~VERSUS~

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY


NATIONAL LAND COMMISSION
KENYA WILDLIFE SERVICE
KENYA RAILWAYS CORPORATION
CHINA ROAD & BRIDGE CORPORATION (KENYA)
MINISTRY OF TRANSPORT AND INFRASTRUCTURE
MINISTRY OF ENVIRONMENT AND NATURAL RESOURCES
THE HON. ATTORNEY GENERAL

1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT
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:
Postal Address:
Telephone No:
Email:

Room 4, Floor B1, Block A, Western Wing, NSSF


Building, Bishops Road, Nairobi.
P.O. Box 60286-00200, Nairobi
+254-0722-684-777
okiyaomtatah@gmail.com

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:
info@anaw.org
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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:
dgnema@nema.go.ke
National Land Commission
Physical Address for Service:
Postal Address:
Telephone No:
Email:

Ardhi House, 1st Ngong Avenue, Off Ngong Road,


P.O. Box 44417 00100, Nairobi
+254 (020) 2718050
info@landcommission.go.ke

Kenya Wildlife Service


Physical Address for Service:
Postal Address:
Telephone No:
Email:

KWS Headquarters, Langata Road,


P.O. Box 40241 - 00100, Nairobi
+254 (020) 2379407
kws@kws.go.ke

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:
info@krc.co.ke; 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 Respondents 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 Respondents 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: okiyaomtatah@gmail.com
10. Fees payable Kshs:
Receipt No: ..
Action taken Date

11. For official use only:

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IN THE NATIONAL ENVIRONMENT TRIBUNAL AT NAIROBI


TRIBUNAL CASE NO
0F 2015
1ST APPELLANT

OKIYA OMTATAH OKOITI


KENYA COALITION FOR WILDLIFE
CONSERVATION & MANAGEMENT

2ND APPELLANT
~VERSUS~

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY


NATIONAL LAND COMMISSION
KENYA WILDLIFE SERVICE
KENYA RAILWAYS CORPORATION
CHINA ROAD & BRIDGE CORPORATION (KENYA)
MINISTRY OF TRANSPORT AND INFRASTRUCTURE
MINISTRY OF ENVIRONMENT & NATURAL RESOURCES
THE HON. ATTORNEY GENERAL

1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT
8TH RESPONDENT

STATEMENT ON GROUNDS OF APPEAL


TAKE NOTICE that the 1st and 2nd Appellants intend to appeal against the 1st Respondents 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 parks 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
1ST APPELLANT

OKIYA OMTATAH OKOITI


KENYA COALITION FOR WILDLIFE
CONSERVATION & MANAGEMENT

2ND APPELLANT
~VERSUS~

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY


NATIONAL LAND COMMISSION
KENYA WILDLIFE SERVICE
KENYA RAILWAYS CORPORATION
CHINA ROAD & BRIDGE CORPORATION (KENYA)
MINISTRY OF TRANSPORT AND INFRASTRUCTURE
MINISTRY OF ENVIRONMENT AND NATURAL RESOURCES
THE HON. ATTORNEY GENERAL

1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT
8TH RESPONDENT

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

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c) THAT since it goes without saying that after a presidential launch of the project, the 1 st
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 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 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
the NNP where the easements tantamount to the protected public land being de-gazetted.

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
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 parks 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, and to preserve the motion herein.
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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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
NATIONAL LAND COMMISSION
KENYA WILDLIFE SERVICE
KENYA RAILWAYS CORPORATION
CHINA ROAD & BRIDGE CORPORATION (KENYA)
MINISTRY OF TRANSPORT AND INFRASTRUCTURE
MINISTRY OF ENVIRONMENT AND NATURAL RESOURCES
THE HON. ATTORNEY GENERAL

1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT
8TH RESPONDENT

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 Oclock 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
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.

p) 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 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.
q) 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.

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

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
Kenya with the unenviable situation whereby the 1st Respondent will be ineffective
exercising its supervisory jurisdiction after the fact.

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y) THAT the construction of the SGR project through the NNP will expose the parks fragile
ecosystem to continuous irreversible damage and degradation.

z) 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.
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.
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.
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:
dgnema@nema.go.ke

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2. National Land Commission


Physical Address for Service:
Postal Address:
Telephone No:
Email:

Ardhi House, 1st Ngong Avenue, Off Ngong Road,


P.O. Box 44417 00100, Nairobi
+254 (020) 2718050
info@landcommission.go.ke

3. Kenya Wildlife Service


Physical Address for Service:
Postal Address:
Telephone No:
Email:

KWS Headquarters, Langata Road,


P.O. Box 40241 - 00100, Nairobi
+254 (020) 2379407
kws@kws.go.ke

4. Kenya Railways Corporation


Physical Address for Service:
Postal Address:
Telephone No:
Email:

Workshops Road, Off Haille Selasssie Avenue,


P.O. Box 30121 00100, Nairobi
+254 070990700
info@krc.co.ke; 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:
Postal Address:
Telephone:

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7th Floor, Sheria House, Harambee Avenue


P.O. Box 40112 - 00100 Nairobi
+254-020-2227461 / 2251355

REPUBLIC OF KENYA
IN THE NATIONAL ENVIRONMENT TRIBUNAL
TRIBUNAL APPEAL NO
OF 2016
BETWEEN
1ST APPELLANT

OKIYA OMTATAH OKOITI


KENYA COALITION FOR WILDLIFE
CONSERVATION & MANAGEMENT

2ND APPELLANT
~VERSUS~

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY


NATIONAL LAND COMMISSION
KENYA WILDLIFE SERVICE
KENYA RAILWAYS CORPORATION
CHINA ROAD & BRIDGE CORPORATION (KENYA)
MINISTRY OF TRANSPORT AND INFRASTRUCTURE
MINISTRY OF ENVIRONMENT & NATURAL RESOURCES
THE HON. ATTORNEY GENERAL

1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT
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

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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 ongoing 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 allimportant 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.

21 | P a g e

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 Respondents 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 Kenyas 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 Respondents 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.

24 | P a g e

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
scientific consideration, and deny Kenyans the opportunity of scientifically determining and
benefitting from the most suitable of the routes for the SGR project.

40.

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

25 | P a g e

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
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 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

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

at
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

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