Al Bayt Properties Limited t/a Al Bayt Properties Hotel v Hanning & 2 others (Environment and Land Appeal E063 of 2023) [2025] KEELC 112 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld the cancellation of a hotel's environmental licence because the site was misdescribed, residents got no reasons, and the high-rise clashed with its residential neighbourhood.
What this practically means
#Executive summary
#Key legal issues
#Whether there was sufficient public participation
The Tribunal erred in finding a lack of public participation; the residents were directly engaged and their objections recorded.
The court found meetings were held with the residents' association and questionnaires distributed; the residents were made aware of the project and registered objections before the licence issued. Although the mode was informal, per the Supreme Court in Okoiti public participation need not follow a fixed form; what matters is that the public had a reasonable opportunity to know and have a say. Directly affected parties were therefore sufficiently engaged.
Whether the licence was procedurally obtained
The licence was not procedurally obtained: the site was misdescribed, NEMA failed to await the 30-day comment period, and failed to give reasons to objectors.
The Appellant described the plot as on Muhoho Road off Ole Sang'ale Road while the actual site was off Muhoho Road along Uchuzi Road, which the court found misleading and likely to influence approval. NEMA issued the licence 17 days after submission, before expiry of the 30-day period under Regulation 9(2) for receiving lead agencies' comments, and no comments appeared on the record. NEMA also gave no feedback to objecting residents as required by Article 47(2).
Whether the project was out of character with its surroundings and the licence null
The proposed ten-storey hotel was out of character with the low-lying residential estate, and the licence was properly nullified.
The EIA report itself described the site as occupied by a residential bungalow, contradicting the Appellant's witness. NEMA's site visit noted low-lying single dwelling bungalows and maisonettes. Social considerations in the Second Schedule, including social cohesion, were not addressed, and the sewer treatment proposal was omitted from licence conditions. The precautionary principle applied since the social impacts would be irreversible.
Whether NEMA could decline/cancel a licence for a project out of character with its surroundings
Yes; EMCA prevails over other laws and permits refusal of a licence notwithstanding other approvals where harm to the environment is likely.
Under Sections 147 and 148 of EMCA, the Authority may refuse to license a development even where the County Government has approved it, if it is likely to cause environmental harm. The project conflicted with uses allowable in the comprehensive controlled estate. Noise, dust and traffic nuisances alone would not justify cancellation but would justify mitigation directions; here the broader social impact justified nullification.
Legal principles established
#- Public participation must be purposive and meaningful, with clarity of subject matter and integrity of process; persons directly affected who are heard and register their views have been sufficiently engaged even if their views do not prevail.
- An administrative body is constitutionally obliged to give written reasons/feedback to persons whose rights are likely to be adversely affected by its decision.
- NEMA may refuse to license a development notwithstanding approvals from other agencies where the development is likely to cause harm to the environment.
Court orders
#- 1.Appeal succeeds only on grounds challenging public participation
- 2.Findings of the Tribunal made 21st November 2023 upheld
- 3.Costs of the appeal awarded to the 1st and 2nd Respondents
- On appeal from
- National Environment Tribunal
- not_stated
- Jurisdiction invoked
- First appellate jurisdiction over the National Environment Tribunal under the Environmental Management and Co-ordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Al Bayt Properties Limited t/a Al Bayt Properties Hotel v Hanning & 2 others (Environment and Land Appeal E063 of 2023) [2025] KEELC 112 (KLR)", Case Analysis (2025). Appeal against NET Judgment delivered 21st November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/112/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.