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ELCDismissedTribunal Appeal No. 28 of 2023 (on appeal from National Environment Tribunal Appeal No. 28 of 2023 - Collins Kinuthia Kiarie and 4 Others vs NEMA and Eleven Energy Ltd)· [2025] KEELC 4479 (KLR)

Eleven Energy Ltd v Kiarie & 5 others (Environment and Land Appeal E001 of 2025) [2025] KEELC 4479 (KLR)

High Court of Kenya
12 June 2025
YAY. M. Angima
3,386 words in judgment
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The bottom line

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The High Court confirmed that an energy company's EIA licence was properly cancelled because public participation fell short of Kenya's legal requirements.

What this practically means

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Executive summary

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Eleven Energy Ltd appealed to the High Court at Mombasa against a National Environment Tribunal judgment dated 14 June 2024 which allowed an appeal by Collins Kinuthia Kiarie and four others and nullified the EIA licence (NEMA/EIA/PSL/27147) granted to the appellant for a 15,000 MT LPG depot on Plot MN/VI/3070 at Changamwe, Mombasa. The residents had challenged the licence principally on inadequate public participation and safety and environmental concerns; the Tribunal upheld only the public participation ground. The appellant raised 13 grounds, condensed into four issues: whether the Tribunal applied the wrong test of public participation, whether it erred in finding participation inadequate, entitlement to reliefs, and costs. The court held that the reasonableness test from Mohamed Ali Baadi was correctly applied and is not inconsistent with the effectiveness test in Mui Coal Basin, since compliance with the statutory framework renders participation effective. It further upheld the Tribunal's findings under Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003: only two of the required three public meetings were proved, there was no evidence of prior notices, posters, or appointment of a qualified coordinator. The court found the Tribunal entitled to consider the whole statutory framework even if not specifically pleaded. The appeal was dismissed in its entirety with costs to the 1st-5th respondents; the EIA licence was not reinstated.

Key legal issues

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01

Correct test of adequate public participation in environmental matters

Holding

The reasonableness test in Mohamed Ali Baadi was correctly applied and is not inconsistent with the effectiveness test in Mui Coal Basin; statutory compliance is central to both.

Reasoning

The appellant urged the effectiveness test from Mui Coal Basin and faulted the Tribunal for requiring full regulatory compliance. The court held the two tests are complementary: adherence to the prescribed statutory and regulatory framework on public participation yields participation that is effective and meaningful, so the Tribunal did not err in applying the reasonableness standard.

p. 6
02

Whether public participation was adequate under Regulation 17

Holding

No: evidence showed only two public meetings (not the required three), no prior notices, no posters, and no qualified coordinator; the Tribunal's findings were free of error of law.

Reasoning

The Tribunal found proof of only two meetings where Regulation 17(2)(b) requires at least three; no evidence of notices under 17(2)(c), posters under 17(2)(a)(i), or appointment of a qualified coordinator under 17(2)(d). The High Court found the analysis well reasoned and entitled the Tribunal to reach that conclusion, dismissing the appeal.

p. 7

Legal principles established

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  • There is no contradiction between the effectiveness test in Mui Coal Basin and the reasonableness test in Mohamed Ali Baadi; compliance with the statutory framework renders participation effective and meaningful
  • A Tribunal deciding an environmental appeal may consider compliance with the entire applicable statutory framework even where not specifically pleaded by the parties

Court orders

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  1. 1.The appellant's appeal is dismissed in its entirety
  2. 2.Costs of the appeal awarded to the 1st-5th respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10; Article 50(1)
  • Environmental Management and Coordination Act, 1999 (EMCA)general
  • Environmental (Impact Assessment and Audit) Regulations, 2003Regulation 17(1), 17(2)(a)(i), 17(2)(b), 17(2)(c), 17(2)(d)
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (3)

  • Mui Coal Basin Local Community and 15 Others vs Permanent Secretary Ministry of Energy & 17 Others
    [2015] KEHC 473 (KLR)
  • Mohamed Ali Baadi & Others vs Attorney General and 11 Others
    [2018] eKLR
  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
National Environment Tribunal
Tribunal Appeal No. 28 of 2023
Jurisdiction invoked
Appellate jurisdiction over decisions of the National Environment Tribunal under EMCA framework

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, "Eleven Energy Ltd v Kiarie & 5 others (Environment and Land Appeal E001 of 2025) [2025] KEELC 4479 (KLR)", Case Analysis (2025). Tribunal Appeal No. 28 of 2023 (on appeal from National Environment Tribunal Appeal No. 28 of 2023 - Collins Kinuthia Kiarie and 4 Others vs NEMA and Eleven Energy Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4479/eng@2025-06-12

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