Environmental Requirements Should be Followed to the Letter - International Law Office

The Mombasa High Court has issued an injunction against a Canadian owned mining company, Tiomin Kenya Limited, preventing it from prospecting and mining titanium in Kwale. The case was instituted by a group of farmers and residents in Kwale who had concerns about possible environmental damage to the area, among other things. This decision is the first to be handed down under the Environmental Management and Coordination Act 1999. The act came into effect on January 14 2000 and is the first statute in Kenya dealing solely with environmental issues. Although a number of other statutes deal with environmental issues as an adjunct to more substantive provisions, the act provides a comprehensive framework specifically designed to enable citizens to take action in respect of environmental concerns.

One of the principal grounds on which the action was brought was the fact that Tiomin had not complied with the necessary rules and regulations under the act regarding the preparation and submission of an environmental impact assessment report. The act requires that a project report and an environmental impact assessment must be drawn up and submitted to the director general of the National Environment Management Authority. Following its submission, the director general has three months in which to review the documentation and issue his response. If he fails to do so within this timeframe, the project is deemed to have been approved and the company which submitted the report may commence operations. In the Tiomin Case it was argued on behalf of Tiomin that since an environmental impact assessment report had been submitted and since Tiomin had received no response from the authority, it could proceed with its prospecting and mining activities. However, the High Court held that no project report had been submitted and that therefore the act's provisions had not been complied with.

The court stated that the fact that Tiomin had been granted the necessary licences under the Mining Act (Chapter 306, Laws of Kenya) did not excuse it from its obligations. Tiomin was still required to observe the requirements of the Environmental Management and Coordination Act (which, being a later statute, takes precedence over the earlier Mining Act), and its failure to do so was detrimental to its proposed activities.

It has been reported that the legal challenges against it have cost Tiomin over $7 million so far. The Tiomin decision, which is being appealed, demonstrates the need for caution in undertaking new ventures, particularly those which are large in scale and which are likely to be politically sensitive, even in circumstances where relevant statutory regulations appeared to have been satisfied.

For further information on this topic please contact Karim Anjarwalla or Sonal Sejpal at Kapila Anjarwalla & Khanna Advocates by telephone (+254 2 337 625) or by fax (+254 2 337 620) or by email (ksa@ka-legal.com or ss@ka-legal.com).