BY SAM ALFAN.
A Chinese construction firm has suffered a major blow after the appellate court rejected its bid to suspend a directive for it to decommission and rehabilitate a quarrying site within six months.
Appellate court judges Lydia Achode, Weldon Korir and Prof. Joel Ngugi dismissed the application by China Road and Bridge Corporation-Kenya, seeking to suspend a judgement delivered by the Environment and Land court.
“In our view, therefore, given the state of evidence, public interest tilts in favour of denying the stay of execution not in granting it. We have said enough to demonstrate that the application dated 20th December, 2024 has no merit and we hereby dismiss it,” ruled the appellate judges.
The Judges noted that China Road and Bridge Corporation-Kenya did not place any evidence before court to show that should it be compelled to shut down its quarries.
The quarries are located in Ngong and the firm was apprehensive that the execution of the judgment would make it difficult for it to find other sources of construction materials within reasonable distance from Nairobi.
“We are not persuaded that the intended appeal would be rendered nugatory if the stay requested herein is declined,” said the appellate judges.
The judges noted that the issue at stake in the litigation was the right to a clean and healthy environment guaranteed by the Constitution to Charles Wachira, Esther Wambui, Evans Kinuthia and Elizabeth Wangui and the other citizens of Kerarapon, which the court found to have been violated by the applicant through its continued quarrying activities.
“Without the presentation of compelling further evidence to the contrary, which the applicant has not even attempted to do, the precautionary principle advocates for taking preventative action to avoid potential harm to the environment, even when there is scientific uncertainty about the nature or extent of the harm,” said the judges.
The company had challenged the decision of the Kajiado Environment and Land court, directing the firm to decommission the quarries, following a petition by Kerarapon Residents Association and Kerarapon Water Association.
The residents had sued on behalf of the residents of Kerarapon, an estate in Ngong within Kajiado County.
They brought the petition against the Chinese construction Firm primarily predicated on the constitutional right to a clean and healthy environment.
Their claim was that the quarrying activities going on on the land known as LR No. Ngong/Ngong/2627 operated by the Chinese construction Firm were causing them loss and damage. In particular, they claimed that the earth moving machines deployed to do blasting, excavation and extraction cause noise pollution and raise dust which cause respiratory ailments.
In addition, the blasting, excavation and quarrying have compromised the integrity of the foundation of their homes which are near the quarrying site.
The residents said the Chinese construction Firm had agreed to decommission the quarrying site and restore the site and urged the court to order them to adhere to that plan.
The officials were apprehensive that instead of following through with the decommissioning plan, the applicant had plans to extend the quarrying site. They sought orders to stop any such expansion.
The Environment and Land court Judge noted that the construction firm had already set out plans for decommissioning the quarrying site in a rehabilitation plan dated August, 2019 which is incorporated as part of the Environment Impact Assessment Report and the Licence conditions.
The court found that the extended quarrying activities must come to a close.
In their appeal, China Road and Bridge Corporation-Kenya argued that it has an arguable appeal and that refusal of the grant of stay orders will render that appeal nugatory and that the public and national interest stand to suffer irreparably should an order for stay of the impugned judgment not be issued as prayed in the application.
The company argued that some of the grounds it hopes to take up against the judgment include the fact that the learned Judge did not stipulate her reasoning for arriving at the conclusion that the officials rights to a clean and healthy environment were infringed and that the quarrying activities are unconstitutional and against public policy and national interest.
According to the Chinese construction Firm, the company will take up on appeal is the question whether the Judge ignored the fact that the rehabilitation plan she ordered to be adhered to was prepared for progressive restoration of the exhausted quarry pits only and not for the restoration of all the pits that are in use for the on-going construction of the Western by-pass Road Project.
The company further submits that the learned Judge demonstrably failed to give the defence and the applicant’s evidence its due weight, merit and regard including in interpreting the scientific evidence presented to the court.
The company argued that says that if the judgment is implemented, it would have serious and irreversible consequences yet an appeal is pending before this Court.
It was the company arguments that it is engaged in ongoing construction of some of the major road infrastructure projects in Kenya such as the Nairobi Western By-pass Road Project.
The company argued that the decommissioning of the quarry in question will, it says, immensely affect the cost of completion of these ongoing projects since they are all supported by the quarrying operations from the affected quarry.
“The cost of stoppage of these projects due to delay in completion of the projects on account of lack of material from the quarry to implement them during the pendency of the appeal is so monumental that the officials would not be in a position to compensate,” Chinese construction Firm told the court.
The company submitted that the public and national interest stand to suffer irreparably should an order of stay of execution not issue.
“This is because, it argues, the national projects which the applicant is supporting using the quarry will ground to a halt as from 7th April, 2025 absent a stay order. The effect of the closure of the quarry will be to increase the costs of these national projects; costs which will ultimately be additional burden to the tax payer,” court heard.
The company submitted that the principle of proportionality supports the grant of an order of stay in this case.
This is because, it submits, the applicant is undertaking a project of national importance which is to build a critical road infrastructure and that the attendant costs of the delay to the taxpayer should be balanced against the private costs to the residents in determining if to grant stay.
On the other hand, the association officials do not think that the appeal raises any arguable point.
They argued that the court’s findings and orders were based on uncontroverted evidence that they have suffered harm and loss.
The residents said the judgment was based, in part, on a written memorandum of understanding between the firm and the residents of Kerarapon where the company made a promise to restore the quarrying pits to their near original status upon completion of the construction of the Southern Bypass.
They said the key road has since been completed yet the company had proposed to extend rather than stop the quarrying activities.
