Why Nema wants baobab export case moved to environment tribunal

Baobab tree

An uprooted baobab tree ready for export to Georgia is transported along the Mombasa-Malindi Highway in this photo taken on November 20, 2022.

Photo credit: Kevin Odit I Nation Media Group

The National Environment Management Authority (Nema) wants a case challenging the uprooting and exportation of baobab trees in Kilifi to be moved from the Environment and Land Court in Malindi to the National Environment Tribunal.

The authority said the main issue raised by Kituo cha Sheria in the case concerns several statutory approvals, permits and licences applied and granted by the government.

Nema cited the application as bad in law, defective, and abusive of the court process and asked Justice Evans Makori to strike it out.
Nema also said there was an existing appeal before the National Environment Tribunal against it and Mr George Gvasaliya, who is in the baobab export business, filed last year by Mr Omar Salim Mwakeli and others.

Kituo cha Sheria has sued Nema, Kenya Forest Service (KFS), Kilifi County Government, the Ministry of Environment and Forestry, Kenya Plant Health Inspectorate Services (Kephis) and the Attorney General for allowing the uprooting and export of baobabs from Kilifi to Georgia.

According to an application filed by lawyer Erastus Gitonga, the jurisdiction of the Environment and Land Court was invoked properly by dint of sections 125 and 129 of the Environmental Management and Coordination Act 8 of 1999.

It is also against section 27 of the Kenya Plant Health Inspectorate Service [Act 54 of 2012] and section 70 of the Forest Conservation and Management Coordination Act, 2016.

Mr Gitonga said the application said the petition offends the doctrines of exhaustion of remedies.

He said the claims relate to the decision made by Nema on the Environmental Impact Assessment [EIA] to Mr Gvasaliya dated September 30m 2022, allowing the uprooting and exportation of eight baobab trees.

In addition, the access permit dated January 23 this year allows access to the genetic resources in the baobab trees.

“We humbly implore this honourable court to decline to entertain the matter as the case goes against the trite legal principle that one must exhaust internal mechanism for an appeal or review and all remedies available under any other written law.

In such cases, the case should be allowed and determined by the National Environment Tribunal at the first instance,” he said.

He added that the claims equally relate to the decision made by Kephis to issue the Phytosanitary Certificate to Mr Gvasaliya dated April 13, 2022, to export the baobabs.

“A dispute arising thereunder can only be referred to arbitration. The petition herein and any subsequent application by the petitioner is thus bad in law, defective, an abuse of the court process and ought to strike it with costs,” he added.

However, advocates Anthony Muyeko and Nelius Njuguna from Kituo cha Sheria said the Environment and Land Court have jurisdiction to hear and determine the baobab case.

According to the advocates, the petition filed was about constitutional violations by Nema and other government agencies and not revocation of approvals, permits and licences issued by them to the Ariba Seaweed International Ltd and Mr Gvasaliya.

They argued that when filing the petition, Nema, other government agencies, and the county government had already revoked the export permits issued and halted the exportation of the baobab trees.

“This misled the public to believe there would be no more exportation. We filed the petition because of the constitutional violations due to the actions. However, unknown to us, there was a lift on the revocation of the permit, and the government issued approvals, permits and licences after filing the petition,” they said.

The two lawyers said they moved to court to seek conservatory orders pending the hearing of the petition.

They said Nema had failed to document the alleged case against themselves and Mr Gvasaliya at the National Environment Tribunal.

They further argued that the matter was of public interest and there should be no orders for costs.

However, Justice Makori extended orders granted to Kituo cha Sheria on March 2 to stop the transportation and destruction of baobab trees.

The court will deliver its ruling on the objection by Nema on May 4.


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