BY SAM ALFAN.
The owner of the land housing the prestigious Villa Rosa Kempinski in Nairobi is opposed to the construction of an imposing office and hospitality structure on adjacent property.
High Court Judge Bernard Eboso Mweresa has allowed Simba Corporation Ltd to appeal against the decision made by the National Environment Management Authority (NEMA) on July 15, 2015, granting permission to Avic International Real Estate to construct the commercial edifice on its five parcels of land situated along Chiromo lane in Westlands, Nairobi.
NEMA had granted the firm a conditional environmental impact assessment licence to put up a 43-level office tower, a 35-level hotel tower, four apartment towers, two commercial podiums, a two-level bridge and associated facilities through Geoffrey Imende of Mohammed Muigai law firm.
Simba Corporation was aggrieved by the decision and petitioned the National Environmental Tribunal on September 15, 2015 to revoke the licence.
However, Avic International opposed the appeal and filed a preliminary objection on November 5, 2015 seeking to have it struck out.
The firm argued it had obtained all the necessary statutory approvals before embarking on the project and that the appeal was lodged beyond the statutory deadline. Further, the contentious issues were not within the tribunal’s powers and deserved to be dismissed, it said.
The tribunal, comprising Chairperson Jane Dwasi and members Francis Situma, Tom Ojienda and Maureen Mathenge, made a unanimous ruling on December 18, 2015, upheld the preliminary objection and dismissed the appeal by Simba Corporation Ltd.
Justice Eboso Mweresa in a 19 page ruling overturned the tribunal’s findings on the basis that Avic International did not offer evidence to prove that Simba Corporation had filed its appeal beyond the mandatory 60-day deadline after the licence had been granted.
He directed the tribunal to hear and determine the initial appeal by Simba Corporation.
The Judge said NEMA is under an obligation to serve upon all interested parties notices of its decisions, which are subject to appeal and have significant bearing on environmental management and investor projects.
“This will eliminate endless litigation which adversely affect investor projects and the country’s environmental management programmes,” he said.
High Court Judge Bernard Eboso allowed Simba Corporation Ltd to appeal against the decision made by the National Environment Management Authority (NEMA) on July 15, 2015, granting permission to Avic International Real Estate to construct the commercial edifice on its five parcels of land situated along Chiromo lane in Westlands, Nairobi.
NEMA had granted the firm a conditional environmental impact assessment licence to put up a 43-level office tower, a 35-level hotel tower, four apartment towers, two commercial podiums, a two-level bridge and associated facilities.
Simba Corporation was aggrieved by the decision and petitioned the National Environmental Tribunal on September 15, 2015 to revoke the licence.
However, Avic International opposed the appeal and filed a preliminary objection on November 5, 2015 seeking to have it struck out.
The firm argued it had obtained all the necessary statutory approvals before embarking on the project and that the appeal was lodged beyond the statutory deadline. Further, the contentious issues were not within the tribunal’s powers and deserved to be dismissed, it said.
The tribunal, comprising Chairperson Jane Dwasi and members Francis Situma, Tom Ojienda and Maureen Mathenge, made a unanimous ruling on December 18, 2015, upheld the preliminary objection and dismissed the appeal by Simba Corporation Ltd.
Justice Eboso overturned the tribunal’s findings on the basis that Avic International did not offer evidence to prove that Simba Corporation had filed its appeal beyond the mandatory 60-day deadline after the licence had been granted. He directed the tribunal to hear and determine the initial appeal by Simba Corporation.
The Judge said NEMA is under an obligation to serve upon all interested parties notices of its decisions, which are subject to appeal and have significant bearing on environmental management and investor projects.
“This will eliminate endless litigation which adversely affect investor projects and the country’s environmental management programmes,” he said.
The complex, which includes a 35-floor five-star hotel, had received the green light from a number of regulatory agencies, including the National Environment Management Authority (Nema) before Kempinski filed a petition with the environment tribunal, seeking orders against its construction.
In September 2015, Kempinski got an order from the NEMA tribunal stopping construction of the complex until an appeal it has filed against Avic is heard and determined.
Kempinski reckons that Nema granted Avic an Environmental Impact Assessment (EIA) licence before concerns it raised about the multi billions shilling complex were addressed.
The court directed the appeal filed before the National Environment Tribunal in NET shall be heard and determined on merit.
