DISPUTED DEVELOPMENT WORKS AT RISK OF SUSPENSION AT THE HANDS OF REGRESSIVE COURT ORDER

History of Stop Orders under the Environmental Management and Co-Ordination Act (EMCA)

Before April 2018, under the EMCA, an applicant merely needed to lodge an appeal with the National Environment Tribunal (the Tribunal) in order to automatically suspend development works that were the subject of a dispute. This automatic hiatus on construction, based on the precautionary principle in environmental decision-making, lasted until the appeal was decided. The maintenance of the status quo occurred as a matter of law and the Tribunal had no discretion in the matter.

Automatic suspensions unexpectedly created an avenue by which litigants could maliciously delay development projects. By mischievously filing appeals, litigants successfully stalled the progress of the successful party until the appeal was determined.

Some argued that this delay necessitated the need for an amendment to the EMCA to allow the Tribunal to determine whether a stay order was required on a case-by-case, rather than an automatic basis.  Others argued that the automatic suspension provision should stand because it allowed litigants to exercise their right to be heard without the threat of the contentious development proceeding. The supporters to the automatic provision believed it offered a guarantee that, as long as an appeal had been filed, the status quo surrounding the developments would be maintained. An automatic suspension ensured that valid appeals were not rendered ineffective because the developer could not complete the project that was the subject matter of the appeal before a determination was made.

Amendment to the EMCA

The concerns raised about an automatic suspension were heard. On 20 April 2018, the Statute Law Miscellaneous Amendment Act, 2018 amended the EMCA by stipulating that the challenger of a development had to make an application before the Tribunal before any interim relief could be granted; that is, before a suspension of the contentious development could be ordered and thus take effect.

By this amendment, the Tribunal was provided with a basis by which it would ensure that suspension orders were only granted in deserving cases and not automatically, as it had been before.

This amendment was hailed as an important development in the environmental field in Kenya. Projects such as the Standard Gauge Railway had faced serious setbacks (with great financial implications) when activists opposed to the project had filed appeals at the Tribunal resulting in an automatic suspension of works. Due to the amendment, the activists were obligated to prove the importance of suspending the development, thereby avoiding the unwarranted suspension of the works.

Suspension of the Amendment

The progress made by the amendment was recently halted by an order issued in High Court Petition No. 268 of 2018 Okiya Omtata Okoiti & Anor vs. The National Assembly & others whereby Justice W.A. Okwany effectively reinstated the statutory status quo in place before the amendment. The order suspended the operation of the Statute Law Miscellaneous Amendment Act, 2018 until the hearing and determination of the constitutional petition. Accordingly, the law has reverted to the previous position – an automatic suspension of a development as a matter of law upon the filing of an appeal.

Implications of High Court Petition No. 268 of 2018

This reversal of law is a serious setback in the development of environment law jurisprudence as, once again, there is a danger of appeals being used as a potential avenue of abuse by spiteful parties. The benefits that would arise with the suspension of works for a deserving appeal (raising genuine environment concerns) could be eroded by delays caused by baseless appeals. Additionally, there is no compensation afforded to an affected developer for losses incurred as a result of their development being suspended or terminated.  

At present, it is unknown when Justice W.A. Okwany will issue her final judgement in the constitutional petition.  Accordingly, the Tribunal has reverted to the automatic suspension regime therefore, if an individual files an appeal against development works, they and the party carrying out the development should expect an automatic suspension of the development works.