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ELCPartially AllowedConstitutional Petition (ELC Nakuru)· [2016] KEELC 565 (KLR)

Kamau & 9 others v Aelous Kenya Ltd & 9 others (Constitutional Petition 13 of 2015) [2016] KEELC 565 (KLR)

Environment and Land Court
31 March 2016
MSMunyao Sila
16,349 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~65 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a wind farm that changed its size and location needed a fresh environmental assessment, not just a licence variation.

What this practically means

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Executive summary

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This constitutional petition was filed in March 2015 by ten land owners and residents of Kinangop challenging the development of the 60MW (later 61MW) Kinangop Wind Park by Aeolus Kenya Limited and Kinangop Wind Park Limited. The petitioners alleged that the EIA licences originally issued to Ecogen in 2005 for a 30MW project on a single 2 km sq site were improperly varied by NEMA to permit an upscaled project on a wholly different site of 38 plots covering 16 km sq, without a fresh Environmental Impact Assessment, and that the project violated their rights to a clean and healthy environment (Article 42), property (Article 40), dignity and fair administrative action. Twenty-three interested parties, being landowners who leased plots for the turbines, were enjoined. The court upheld its jurisdiction as an ELC constitutional petition, holding the National Environmental Tribunal does not hear constitutional petitions. It found that the change from a 2 km sq single-parcel site to 38 parcels across 16 km sq, with output rising from 30MW to 61MW, was a substantial change or modification of the project; Regulation 25 of the EIA Regulations could not be used to vary the licence without a fresh EIA in such circumstances. The court declared the variations contrary to EMCA and the EIA Regulations, 2003, declared the failure to follow the Regulations a potential threat to the Article 42 right, and ordered that a fresh and proper EIA be conducted for the new site before the project proceeds. However, it declined to set a 1000-metre set back distance, to declare EMCA unconstitutional, to quash the leases, or to award compensation, finding no violation of property or other rights. Costs were awarded to the petitioners, capped at Kshs. 2 million, payable by the 1st, 2nd, 3rd and 5th respondents.

Key legal issues

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01

Whether the upscaling of the project from 30MW to 61MW and its relocation from one site to 38 plots across 16 km sq could be accommodated by variation of the EIA licence under Regulation 25 of the EIA Regulations

Holding

No; the change was a substantial change or modification of the project requiring a fresh EIA, and the variation without one was contrary to law

Reasoning

The original licence contemplated a 2 km sq site on one land parcel; the project now covers 16 km sq across 38 parcels, an increase of about 800% in area and more than 100% in output. Regulation 25(3) permits variation without a fresh EIA only if the varied project would comply with the original licence. The Regulations give no criteria, leaving discretion to NEMA, but that discretion must be exercised reasonably. Where Regulation 28 grounds for cancellation, such as substantial change or modification, exist, NEMA must either revoke the licence or require a fresh EIA before varying it.

p. 20
02

Whether the petitioners' right to a clean and healthy environment under Article 42 was violated

Holding

Yes, potentially - the improper variation of EIA licences threatened the right; the petition succeeded on this ground

Reasoning

Because the procedure for environmental protection (a fresh EIA for the new site) was not followed, the court drew the assumption that the right to a clean and healthy environment was under threat. The petitioners demonstrated impropriety in the manner the licences were varied and in implementing the project on a site never subjected to full EIA.

p. 21
03

Whether the petitioners' rights to property (Article 40), dignity and fair administrative action were violated, and whether the leases should be quashed

Holding

No; there was nothing wrong in landowners leasing their parcels for a wind farm, and no violation of the petitioners' property or other rights was established

Reasoning

The interested parties voluntarily leased their land and were compensated; the petitioners retained their properties and no evidence of devaluation or displacement was presented. No law requires outright purchase of the whole wind farm area. Claims of coercion and administrative harassment were not proved, and a lessee unhappy with his lease must pursue private law remedies.

p. 23
04

Whether the court has jurisdiction given the existence of the National Environmental Tribunal

Holding

Yes; the suit is a constitutional petition alleging rights violations, which the NET cannot hear, and the ELC's jurisdiction under Article 162(2)(b) covers all environment and land matters

Reasoning

The character of the suit is constitutional, not an appeal against a NEMA decision. Even if it were purely about a NEMA decision, the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act extends to any matter related to environment and land.

p. 15

Legal principles established

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  • Where the character, location or scope of a licensed project substantially changes, NEMA must require a fresh EIA before issuing a variation of the licence; it cannot shield behind Regulation 25 to allow a mere variation
  • Where a procedure for the protection of the environment provided by law is not followed, an assumption arises that the project violates or threatens the right to a clean and healthy environment, rebuttable only by following proper procedure
  • Under Section 3(4) of EMCA and Article 70(3) of the Constitution, an applicant enforcing environmental rights need not demonstrate personal loss or injury
  • Even beneficial 'green' projects must comply strictly with environmental procedures; economic importance is no ground for shortcuts

Court orders

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  1. 1.Declared that the variation of the EIA licences issued upgrading the project to 60MW and later to a 61MW project on new sites situated in 38 plots without requiring a fresh EIA was contrary to EMCA, 1999 and the EIA Regulations, 2003
  2. 2.Declared that the failure to abide by the EIA Regulations, 2003 potentially threatened the petitioners' right to a clean and healthy environment under Article 42 of the Constitution
  3. 3.Ordered that if the proponents wish to proceed, a fresh and proper EIA under EMCA and the EIA Regulations, 2003 must be conducted and considered on merits for the new site of 38 land parcels
  4. 4.Awarded the petitioners the costs of the petition capped at Kshs. 2 Million all inclusive, payable by the 1st, 2nd, 3rd and 5th respondents jointly and/or severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 10, 21, 22, 24, 27, 28, 31, 40, 42, 43, 47, 57, 67(2), 69(1)(f), 70, 162(2)(b), 258
  • Environmental Management and Coordination Act, 1999 (EMCA)Part VI; Sections 3(4), 58, 59, 60, 62, 63
  • Environmental (Impact Assessment and Audit) Regulations, 2003Rules 17, 18; Regulations 25, 28
  • Environment and Land Court Act, 2011Section 13
  • Environmental Management and Coordination (Noise and Excessive Vibration Control) Regulations, 2008not specified
  • Land Registration Act, 2012not specified
  • Wind Turbines Bill, 2012 (USA)Section 4(4)

Cases cited (3)

  • Anarita Karimi Njeru vs Republic
    (1976-80) 1 KLR 1272
  • Ken Kasinga vs David Kiplagat & 5 Others
    Nakuru ELC, Petition No. 50 of 2013 (unreported)
  • R (Mageean) vs Secretary of State for Communities and Local Government & Cornwall Light and Power
    (2010) EWHC 2652
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011; Articles 22, 70 and 258 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamau & 9 others v Aelous Kenya Ltd & 9 others (Constitutional Petition 13 of 2015) [2016] KEELC 565 (KLR)", Case Analysis (2016). Constitutional Petition (ELC Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/565/eng@2016-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.