Communist Party of Kenya v Nairobi Metropolitan Services & 3 others;National Environment Management Authority & another (Interested Parties) [2022] KEELC 967 (KLR)

The court adopted the six principles in Mui Coal Basin as the applicable threshold. The EIA project report contained a detailed stakeholder plan, photographs, barazas, minutes and signed attendance forms confirming consultation. Participation varies with the nature of the project and, since a project report rather than a study report was submitted, the stricter requirements of Regulation 17 did not apply. The court deferred to the expertise of the NEMA and NMS environmental officers.

It was common ground the project was ongoing by 7th December 2021 when conservatory orders issued, while the licence was only issued on 14th January 2022. Proceeding without an approved EIA meant proceeding without a determination of possible environmental impacts, contrary to Section 58 of EMCA and Regulation 4(1), and was a threat to the right to a clean and healthy environment under Article 42.

Article 35 enforcement requires showing the information is held by the respondent and is required for the exercise or protection of another right. The Access to Information Act, Cap 31 of 2016 now sets out the modalities for accessing information, including review by the Commission under section 14. The doctrine of exhaustion, rooted in Article 159(2)(c), required the Petitioner to use that mechanism first, and no exception applied.

The licence was still valid, and the court was not told post-licence implementation would breach its conditions or harm the environment. Drawing on the inherent jurisdiction to fashion appropriate reliefs, the court declared the pre-licence commencement unconstitutional, directed NEMA to monitor compliance with the licence and EMCA, and declined the prohibitory and reinstatement prayers.