Lamu Coal Plant Judgment Postponed

Wednesday 8 May 2019

deCOALonize press release

Text version below, pdf here, also transcript of proceedings below.

Nairobi — Petitioners from Lamu, who travelled overnight to reach Nairobi for an important judgment that was set to be delivered today, were disappointed when the National Environment Tribunal (NET) postponed the judgment until 24 June, without reason.

The judgment was to give verdict on a case that was challenging the Environment Impact Assessment (EIA) licence granted by the National Environment Management Authority (NEMA) to Amu Power, the company that plans to build the controversial Lamu Coal Plant.

Some of the petitioners who were not amused lamented that the NET had made this a habit throughout the hearing of this case, much to their disadvantage.

Mohammed Mbwana, Save Lamu Vice Chairperson, noted that the NET had similarly cancelled scheduled hearings at the last moment throughout the litigation. Expert witnesses traveled from abroad multiple times to attend scheduled hearings, yet went home without testifying, and ultimately had their testimony excluded, after the court adjourned the case.

“Firstly, you must know that this case has taken a lot of time. We’ve had similar adjournments during the case where our international expert witnesses were not able to testify because the tribunal changed hearing dates on short notice,” said Mr. Mbwana.

This morning, the four sitting members of the tribunal wasted no time from the moment the court sat.

“Judgment itself is not ready. There are still issues. It will come on the 24th of June,” NET Chairman Mohammed Balala said, adding that he did not anticipate any further delays past that date. He also observed that the case has now gathered significant public interest and promised to move to a larger court room.

The lead lawyer for NEMA was not present, while Amu Power lead lawyer Masika had his colleagues fill in for him.

Katiba Institute lawyers who were present expressed optimism the judgment will be delivered on the 24th of June, saying it’s a normal practice for the courts to adjourn.

“Judges adjourn cases from time to time the world over. We don’t read any ulterior motives. We believe they’re taking their time to write a well-reasoned judgment,” said Mr. Lempaa Suyianka, lawyer for the petitioner with Katiba Institute.

The adjournment nonetheless may affect the turnout on 24th of June, especially from the affected petitioners, who said they have spent money travelling and booking lodges just to be present in court for the judgment, for which they have waited for more than two years.

Community leader and organiser Ms. Raya Famau Ahmed faulted the NET for sending out the notice of judgment, only to adjourn today, saying it was suspicious.

“This was very disappointing, considering it’s the month of Ramadhan and most of us are fasting. People may never come back on the 24th because we can’t be too sure. And it’s expensive traveling here and looking for a place to stay — even if for a day!”

In its notice of judgment for today, the tribunal had explicitly cautioned, “Take further notice that in the event of non-attendance by yourselves the case shall proceed and such directions granted as the Court may deem fit and just your absence notwithstanding.”

Environmental Human Rights defenders in the country and around the world are very keen on this case particularly because the Lamu Coal Plant would contribute to adverse climate change with projected greenhouse gas (GHG) emissions as high as 8.8 million tons of CO2eq per year, which is in violation of Kenya’s commitment to abate GHG emissions by 30% by 2030. Also, in the wake of Cyclone Idai and Cyclone Kenneth, climate change risks are only more visible.

“It’s unfortunate that the people of Lamu have had to deal with the adjournment despite travelling from far. However, their resilient spirit won’t be crushed by this. Natural Justice shall continue to stand by them as we anticipate the judgment on 24 June,” said Mark Ogada, lawyer with Natural Justice.

For more information, please contact Omar Elmawi, deCOALonize Campaign Coordinator, on +254710343432 or by email at omar.elmawi@decoalonize.org.

Transcript of proceedings

Wednesday 8 May 2019
9:40–9:54am

Chairman Balala: Good morning, ladies and gentlemen. Welcome. [To clerk:] Call this matter first…

Clerk: NET 196 of 2016, Save Lamu and 5 others vs NEMA and Amu.

Appellant (Ochiel): If it pleases your honours, my name is Ochiel. I am here with my learned friend Suyianka Lempaa, for the appellants. Ms. Nkonge is unavailable. We are ready to receive the court’s judgment.

Respondent (Limo): My name is Limo. I have been requested to hold brief for Mr. Gitonga, the first respondent [Amu Power]. The second respondent [NEMA], I appear with my learned senior, Ms. Mathera. (?) We are ready to take the judgment.

Chairman Balala:

Okay, uh, first, Mr. Lempaa, we have received your letter requesting, um, or informing us that there will be — that the petitioners will be present, and media houses, which we welcome, um, to the court session, although it’s a bit small.

Now, the judgment itself is not ready for delivery today. Um, there are a few issues still that we are tackling, on the judgment, but we are almost there. And, uh, we need to give the earliest possible date, which is 24th of June. Please, can you check your diaries? [long pause]

Also, in view of the public interest in the matter, I think we will also have to communicate a more appropriate venue that can fit everyone into the courtroom as well. But that will be informed by the registry, when we are informing you.

If the judgment is ready earlier, also, a notice will be issued to the parties in good time, to alert them about it.

So, for now, the matter is stood (?) over to to 24th of June, for delivery of judgment. [long pause] The other matters that are coming up today, um… yes?

Lempaa (Katiba): Just for our information, as our clients come from Lamu…

Balala: From Lamu, yes…

Lempaa (Katiba): Since they come from Lamu, we kindly request for seven days’ notice, to inform them, so that they can come and attend…

Balala: Absolutely. That’s only fair. And, uh, we do not anticipate any further, uh, delays after that.

Lempaa (Katiba): So when it’s ready…

Balala: Yes, we will inform you in good time. Um, uh. But for now take it as 24th June. Uh, and, of course, seven days before the judgment, please get in touch with Aaron, our clerk, and he will confirm to you that the date is available, okay? Thank you very much, ladies and gentlemen.

For the other matters that are for mention this morning… we will just step out to allow the court to clear, and then we will come back… thank you very much.