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ELCDismissedNot stated in the judgment· [2025] KEELC 857 (KLR)

Ken Petrogas Limited v Mohammed & 5 others (Environment and Land Appeal 001 of 2024) [2025] KEELC 857 (KLR)

Environment and Land Court
27 February 2025
5,465 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld the cancellation of an EIA licence because the developer skipped mandatory one-week public participation notices — near-compliance is not enough.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court against the judgment of the National Environmental Tribunal delivered on 5th April 2024 in NET Appeal No 19 of 2023, which had cancelled EIA licence No NEMA/EIA/PSL/25813 issued to the appellant for the establishment of an LPG storage plant, on the ground of insufficient public participation. The appellant (supported by NEMA, the 6th Respondent) argued that the Tribunal decided an issue not raised before it - the absence of one week's notice under Regulation 17(2)(c) - and that the evidence of gazette notices, newspaper and radio announcements and public barazas sufficed. The 1st to 5th Respondents maintained that the Tribunal's reasoning was sound and that documents relied on were never placed before NEMA before the licence issued. Disposing of the appeal on written and oral submissions, the court, as a first appellate court under section 130 of the ELC Act, re-evaluated the record. It held that Regulation 17(2) is mandatory, that 'to ensure' one week's notice is obligatory, and that ground h) before the Tribunal covered Regulation 17(2) generally, so the notice issue was properly in contention. Finding only partial compliance - including no proof of appointment of a qualified coordinator under Regulation 17(2)(d) - the court held public participation inadequate, that substantial compliance does not suffice, and that an illegal process cannot be sanitized. The appeal was dismissed, the Tribunal's judgment upheld, and each party ordered to bear its own costs.

Key legal issues

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01

Whether there was sufficient public participation before issuance of the EIA licence

Holding

There was only partial compliance; absence of the mandatory one-week notices under Regulation 17(2)(c) and of proof of appointment of a qualified coordinator under 17(2)(d) rendered public participation inadequate

Reasoning

The court re-evaluated the record as a first appellate court. Regulation 17(2) is couched in mandatory terms ('shall'), and 'to ensure' under 17(2)(c) is obligatory. Ground h) before the Tribunal referred generally to Regulation 17(2), so notice was in issue; 17(2)(c) cannot be read in isolation. No specific notices appeared in the record. Substantial compliance does not suffice; failure to adhere to statutory provisions is a per se violation of the constitutional requirement of public participation.

p. 10
02

Whether the Tribunal erred in cancelling the EIA licence

Holding

The Tribunal did not err; an illegal process cannot be sanitized

Reasoning

Once public participation was inadequate for want of full statutory compliance, the EIA study report was rendered inadequate and the licence could not stand. Relying on the principle that nothing can come out of an illegality (McJoy v Africa Co Ltd), the court held it could not sanitize a non-compliant process and upheld the cancellation of the licence.

p. 11
03

Whether the Tribunal decided an issue not raised before it (the question of notice)

Holding

The issue was properly before the Tribunal

Reasoning

The appellant contended the Tribunal erred by determining notice under Regulation 17(2)(c) when only lack of meetings had been alleged. The court disagreed: ground h) extracted verbatim from the Notice of Appeal before the NET invoked Regulation 17(2) and failure to ensure sufficient public participation, and Regulation 17(2) introduces all the sub-regulations making them mandatory.

p. 10

Legal principles established

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  • Statutory compliance is a fundamental ingredient of public participation; failure to comply with prescribed statutory provisions on public participation is a per se violation of the constitutional requirement
  • Regulation 17(2) of the Environmental (Impact Assessment and Audit) Regulations 2003 is mandatory; the requirement of one week's notice prior to public meetings cannot be read in isolation or satisfied by substantial compliance
  • An appellate first-instance court must re-evaluate the evidence and draw its own independent conclusions

Court orders

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  1. 1.The judgment of the Tribunal delivered virtually on 5th April 2024 is hereby upheld
  2. 2.Each party to this appeal bears its own costs
On appeal from
National Environmental Tribunal (NET)
NET Appeal No 19 of 2023
Jurisdiction invoked
Section 130 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ken Petrogas Limited v Mohammed & 5 others (Environment and Land Appeal 001 of 2024) [2025] KEELC 857 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/857/eng@2025-02-27

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