A gavel.
A court has halted government's plan to establish an Export Processing Zone (EPZ) in Kiambu County to boost regional development, create jobs and attract foreign investment.
The Environment and Lands court suspended the project, which was to be set up on a 324.5-acre piece of land surrendered by Del Monte Ltd in Thika East sub-county, following concerns by local residents that the government had not involved them.
Water towers at stake
They accused the government of failing to undertake public participation with regard to establishment of the proposed project on a property that hosts four water towers and which risks being contaminated due to industrial waste disposal.
Justice Jacqueline Mogeni issued the conservatory order following an application by the residents under the auspices of Gatuanyaga Residents Association.
The judge found that the residents have a strong case against the government with high chances of success.
For instance, the court noted that the government was yet to conduct an Environmental Impact Assessment (EIA) and the residents were concerned about protection for the water resources. The court said this could not be ignored.
"Waiting for scientific proof regarding the impact of the project could result in irreversible damage to the environment and in human suffering. The short term economic stagnation that may result due to the conservatory orders of this Court does not outweigh the environmental imperatives of the project," said Justice Mogeni.
She stressed that the right to a clean and healthy environment is bestowed on every person, and has been considered by the courts and eminent authors to be essential for the existence of mankind.
"Rivers all over the world are under immense pressure due to various kinds of anthropogenic activities, among them industrial developments that release their waste into the river contaminating water meant for domestic use and human consumption," said Justice Mogeni sitting in Thika.
The conservatory order restrains the government and it's agents from commencing construction of the EPZ project as declared in Legal Notice No. 201 issued by the Cabinet Secretary for Trade and Investments.
Antiquated waste system
Led by David Chege Kuria and Joseph Ng'ang'a Kiarie (Secretary), the Association warned that the residents would be affected by the government's conduct and the consequent harms to water resources that they depend on and other public amenities such as schools and hospitals.
Mr Kiarie said people residing next to the proposed site of the EPZ project had not been consulted neither engaged by either the National Assembly or the Kiambu County Assembly.
This, he said, has denied the residents their constitutional rights to participate in the deliberations and decision-making processes likely to affect their rights and well-being.
"The construction is likely to lead to industrial waste being deposited on an antiquated waste management system designed in the 1970s for a small population of about 584 households. The waste will overwhelm the local waste disposal and management infrastructure, spill over into land and in turn contaminate the water sources utilized by the residents of Gatuanyaga posing a great danger to their health. It would also interfere with the combined school population of 2,625 students," argued the Association.
According to the petitioners, the proposed EPZ industry was set to be located on the part of the Delmonte farm whose ground and surface water flow into four water sources namely; Kilimambogo Township; Gichiiki; Wagithago and Kwandamali.
The said water points are used by the residents for human and other consumption.
The court heard that the Kilimambogo wellspring serves St. Mary’s Primary School, Kilimambogo Township, Mukunite Village and Wendano village.
On the other hand, the Gichiiki wellspring caters to Kilimambogo Teachers College, St John Immaculate Hospital, Kianjahi and the entire Gichiiki village.
It was their case that they had forwarded their concerns to the National Land Commission, County Assembly of Kiambu and even the Principal Secretary Ministry of Land, Housing and Urban Planning.
This was after the Cabinet Secretary Ministry of Trade and Investments failed to subject the proposed project to public participation before issuing a public declaration for the project in a gazette notice under the Export Processing Zones Act.
The National Assembly and the County government had asked the court to reject the application, describing it as premature and defective.
They argued that if the petitioners had a problem with the law of Export Processing Zones they should have raised the concern and filed a Petition with the National Assembly.
Government's defense
For its part the County government submitted that the petition was premature and speculative and it did not disclose a reasonable cause of action. The court heard that the county administration played no role in the issuance of the Gazette Notice.
However, in the ruling the court said its decision was guided by the 'precautionary principle' for both development and environmental protection.
"Article 42 of the Constitution obligates the State, including the 6th and 7th Respondents (National Assembly and the County Assembly), to protect the right to a clean and healthy environment through implementation of legislative measures, which are already in place which clearly they have not done," said the court.
It observed that finding a balance between development and a sustainable environment is crucial for the well-being of current and future generations.
"Development, while important for economic growth and improved living standards, can negatively impact the environment if not managed sustainably. Therefore, a holistic approach that integrates economic, social, and environmental considerations is necessary to ensure long-term prosperity and ecological health," said Justice Mogeni.
An EPZ is a designated area for industrial and commercial operations.
The case is pending full hearing and determination.
