Communist Party of Kenya v Nairobi Metropolitan Services & 3 others; National Environment Management Authority (Interested party) [2021] KEELC 534 (KLR)
The bottom line
#A Kenyan court stopped all renovations at Uhuru Park because no environmental impact assessment or public participation had been done.
What this practically means
#Executive summary
#Key legal issues
#Whether a prima facie case was established warranting conservatory orders
A prima facie case was established because the 1st and 2nd Respondents proceeded with works on the Park without an Environmental Impact Assessment Study and without public participation.
The court applied settled principles on conservatory orders under Article 23: no definitive findings, only evaluation of materials to determine prima facie case and prejudice. EMCA Section 58 requires an EIA study for projects in the Second Schedule, including recreational developments in sensitive areas. NEMA confirmed no report was submitted and no licence issued. Breach of Article 69(1)(d) and Regulation 17 was thus demonstrated, and refusal of orders would risk harm to the environment.
Whether public participation was required and breached
Both domestic law (Article 69(1)(d), Regulation 17 of the EMCA Regulations) and Principle 10 of the Rio Declaration required public participation, which was not carried out.
The County Assembly adopted the renovation motion without public participation. EMCA Regulation 17 requires a proponent to seek views of persons affected by a project. The Rio Declaration, binding via Article 2(5), requires participation of concerned citizens in environmental decision-making. No evidence of any participation was placed before the court by the Respondents.
Legal principles established
#- A development falling under the Second Schedule of EMCA requires an environmental impact assessment study prior to commencement unless exempted by NEMA.
- In an interlocutory application for conservatory orders under Article 23, the court does not make definitive findings of fact or law but examines whether a prima facie case is made out.
- Principle 10 of the Rio Declaration on Environment and Development is binding in Kenya by virtue of Article 2(5) of the Constitution.
Court orders
#- 1.Pending the hearing of the petition, a conservatory order stopping all renovations, cutting down of trees and any works on Uhuru Park by the 1st and 2nd Respondents, their agents or persons under their instructions
- 2.The petition to be heard by way of reliance on the pleadings, affidavit evidence and written submissions
- 3.Respondents and Interested Party to file and serve responses to the Petition within 21 days
- 4.Petitioner to file and serve any supplementary responses and written submissions within 14 days of service
- 5.Respondents and Interested Party to file and serve written submissions within 14 days of service
- 6.Matter to be fixed for highlighting of submissions on the main petition
- 7.Each party to bear their own costs of the application
- Jurisdiction invoked
- Article 23 of the Constitution of Kenya 2010 (conservatory orders); environmental jurisdiction under EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Communist Party of Kenya v Nairobi Metropolitan Services & 3 others; National Environment Management Authority (Interested party) [2021] KEELC 534 (KLR)", Case Analysis (2021). Petition dated 22nd November 2021 (application dated 22nd November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/534/eng@2021-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.