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ELCPartially AllowedEnvironment and Land Court Appeal (National Environment Tribunal Appeal No. 6 of 2021 appealed against)· [2025] KEELC 1169 (KLR)

Menengai West Stakeholders Forum & 10 others v National Environmental Management Authority & another (Environment and Land Appeal E001 of 2024) [2025] KEELC 1169 (KLR)

Environment and Land Court
13 March 2025
8,276 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru against the judgment of the National Environment Tribunal in Tribunal Appeal No. 6 of 2021, which had dismissed the Appellants' challenge to an EIA Licence No. NEMA/EIA/PSL/10003 granted to Sosian Energy Limited for geothermal exploration drilling in the Makongeni/Menengai area. The Appellants raised seven grounds, principally that public participation was inadequate, that the ESIA Study Report was undertaken partly by an unlicensed Lead EIA expert, that the report lacked air quality and noise baseline data, that the Tribunal's deferred climate impact assessment order was unlawful, that no Strategic Environmental Assessment was done for the Menengai geothermal project, and that the Tribunal's judgment denied them their right to remedy. The court, applying Selle v Associated Motor Boat Co., reviewed the evidence afresh. It held that public participation under Article 10, Article 69(1)(d) and Regulation 17 of the EIA Regulations was inadequate: only two scoping meetings were held in June 2019 before approval of the Terms of Reference, the newspaper adverts were misleading (referring to a dam project), and no meetings occurred after ToR approval. The Lead EIA expert was found to have held a valid licence, but the court found the Respondents failed to incorporate the Appellants' air quality and noise concerns into the ESIA report. SEA was held not to be a requirement for a stand-alone project, while the deferred climate impact assessment was held impermissible, following Earthlife Africa and Communities for a Better Environment. The appeal was allowed: the Tribunal's judgment and the EIA licence were set aside and cancelled, a fresh comprehensive ESIA study was ordered, and each party was to bear its own costs.

Key legal issues

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01

Adequacy of public participation

Holding

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

Reasoning

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.

p. 15
02

Validity of ESIA Study Report undertaken by the Lead EIA expert

Holding

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

Reasoning

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.

p. 15
03

Strategic Environmental Assessment

Holding

SEA was not a requirement for this stand-alone exploration project; the Tribunal did not err

Reasoning

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.

p. 15
04

EIA licence conditions and air quality/noise concerns

Holding

The Respondents failed to interrogate and incorporate the Appellants' concerns on air quality and noise into the ESIA Study Report

Reasoning

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.

p. 16
05

Timing of climate impact assessment

Holding

Climate impact assessments must precede project approval, not be deferred to the tail end as the Tribunal ordered

Reasoning

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

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  • 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

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  1. 1.The decision of the Tribunal dated 5th December 2023 is hereby set aside
  2. 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. 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. 4.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10(1)(a), 10(2), 20(1), 21(1), 42, 69(1)(d), 70(1)
  • Environmental Management and Coordination Act (EMCA)Sections 2, 57(5)(8), 57A, 58(2), 58(5), 58(7), 130(4c)
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulations 11-30, 13(2)(3), 15, 16, 17, 18(1)(b), Part 6
  • Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) RegulationsRegulations 14(2), 15
  • Environment and Land Court ActSections 18, 18(a)(iv)
  • Climate Change Act, 2016Section 20
  • Code of Practice and Professional Ethics for Integrated Environmental Assessment and Audit ExpertsSection 14(4)(a)
  • Rio Declaration on Environment and Development (1992)Principle 10

Cases cited (19)

  • Save Lamu & Others vs NEMA & Another
    Tribunal Appeal No. NET 196 of 2016
  • Mohamed Ali Baadi & Others vs the Attorney General & 11 others
    [2018] eKLR
  • Chandaria vs Njeri
    [1982] eKLR
  • Michael Abongo Gilbert Makhulo & Another vs Director General NEMA & Another
    [2021] eKLR
  • Company Secretary, AcelorMittal South Africa Ltd and Another vs Vaal Environmental Justice Alliance
    2015 (1) (SA) 515 (SCA)
  • Dick Omondi Ndiewo t/a Ditech Engineering Service vs Cell Care Electronics
    [2015] eKLR
  • National Environment Management Authority & 3 others vs Maraba Lwatingu Residents Association & 2 others
    [2020] eKLR
  • Earthlife Africa Johannesburg vs Minister of Environmental Affairs and Others
    (65662/16) [2017]
  • Communities for a Better Environment vs City of Richmond
    184 Cal. App 4th 70 (2010)
  • A and Others against Gewestelijkestedenbouwkundige ambtenaar van het department Ruimte Vlaanderen (Organisatie voor Duurzame Energie Vlaanderen VZX)
    (2020)
  • State of West Bengal & Another vs Alpana Roy & Others
    2005 (8) SCC
  • Mui Coal Basin Local Community & 15 others vs PS Ministry of Energy and 17 others
    [2015] eKLR
  • Poverty Alleviation Network & Others vs President of the Republic of South Africa & 19 others
    CCT 86/08 [2010] ZACC 5
  • Legal Advice Centre & 2 others vs County Government of Mombasa & 4 others
    [2018] eKLR
  • Communist Party of Kenya vs Nairobi Metropolitan Services & 3 others: National Environment Management Authority & another
    (2022) eKLR
  • Belize Tourism Industry Association vs National Environmental Appraisal Committee & 2 others
    Claim No 223 of 2014
  • Selle & Another vs Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Republic vs County Government of Kiambu ex parte Robert Gakuru & Another
    (2016) eKLR
  • Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya
    JR Misc. App. No. 374 of 2012
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

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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, "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.