Menengai West Stakeholders Forum & 10 others v National Environmental Management Authority & another (Environment and Land Appeal E001 of 2024) [2025] KEELC 1169 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a geothermal EIA licence because the public was never properly consulted before project approval.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of public participation
The Tribunal erred in finding adequate public participation; the scoping meetings held in June 2019 before approval of the ToRs did not meet the mandatory requirements of Regulation 17, and no meetings were held after ToR approval
The court applied Article 10(2) and 69(1)(d) of the Constitution, Principle 10 of the Rio Declaration and Regulation 17 of the EIA Regulations, and the Mui Coal Basin minimum criteria. It found only two scoping meetings were held before ToR approval, that the newspaper adverts were misleading and for a different project, and that COVID-19 suspensions created red flags that went unaddressed. Meaningful participation was therefore absent.
Validity of ESIA Study Report undertaken by the Lead EIA expert
The Lead expert held a valid 2019 licence; but the court declined to rule on the consequences of the Tribunal's failure to analyse the pleaded issue, citing precedent
The court perused Prof. Krhoda's NEMA licences for 2017 and 2019 and found he was duly licensed. On the Tribunal's failure to analyse the issue, it held precedent was clear as submitted by counsel, without elaborating, effectively folding the matter into its public participation finding.
Strategic Environmental Assessment
SEA was not a requirement for this stand-alone exploration project; the Tribunal did not err
The court accepted that SEA under Section 57A of EMCA is a public policy tool for testing policies, plans and programmes, not individual projects. The subject project was stand-alone and not part of GDC's strategic Menengai initiative, so no SEA was legally required before issuing the EIA licence, consistent with the Baadi decision.
EIA licence conditions and air quality/noise concerns
The Respondents failed to interrogate and incorporate the Appellants' concerns on air quality and noise into the ESIA Study Report
The Appellants' expert evidence showed the report lacked baseline air quality data and a baseline noise assessment as required by Regulation 18(1)(b) of the EIA Regulations. Concerns raised during scoping by affected persons via emails and letters were inadequately addressed, so the licence conditions could not adequately safeguard the Appellants' environmental rights.
Timing of climate impact assessment
Climate impact assessments must precede project approval, not be deferred to the tail end as the Tribunal ordered
Relying on Earthlife Africa (South Africa) and Communities for a Better Environment (California), the court held that impact assessments are ex ante processes. Deferring the assessment until after approval prejudices affected persons, who would have no opportunity to review and comment on mitigation measures before the decision is taken.
Legal principles established
#- Public participation in the EIA process must be meaningful and comply with the statutory procedure under Regulation 17 of the EIA Regulations; scoping meetings held before approval of Terms of Reference do not suffice
- Climate impact assessments should be done prior to approval of a project so that mitigation measures can be developed, defined and made available for public review
Court orders
#- 1.The decision of the Tribunal dated 5th December 2023 is hereby set aside
- 2.The 1st Respondent's decision granting the 2nd Respondent an Environmental Impact Assessment Licence No. NEMA/EIA/PSL/1003 is hereby set aside and Licence cancelled
- 3.An order directing the 2nd Respondent to carry out a comprehensive Environmental and Social Impact Assessment Study in compliance with all relevant laws and regulations taking into account the views of the Appellants and the affected persons within the project area
- 4.Each party to bear their own costs
- On appeal from
- National Environment Tribunal
- Tribunal Appeal No. 6 of 2021
- Jurisdiction invoked
- Section 18 of the Environment and Land Court Act (first appeal from the National Environment Tribunal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Menengai West Stakeholders Forum & 10 others v National Environmental Management Authority & another (Environment and Land Appeal E001 of 2024) [2025] KEELC 1169 (KLR)", Case Analysis (2025). Environment and Land Court Appeal (National Environment Tribunal Appeal No. 6 of 2021 appealed against). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1169/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.