Wa Maina (Suing on His Own Behalf and as the Chairman of Lavington Five Roads Association c/o Githara & Associates Advocates) v National Environment Management Authority & another (Environment and Land Appeal E007 of 2023) [2025] KEELC 4756 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Classification of the petrol station project as high or medium risk
The project is medium risk; Legal Notice No. 31 of 2019, effected before the 2022 development approvals, declassified service stations from high risk to medium risk under the Second Schedule to EMCA.
The court perused Legal Notice No. 150 of 2016 and No. 31 of 2019. The earlier notice classified service stations as high risk, but the 2019 amendment, made under Section 58(4) of EMCA, lists service stations under Medium Risk Hydrocarbons Projects. The amendment predated the license application, which commenced in 2022, so Regulation 7 (project report) applied, not Regulation 17 (study report).
Whether public participation was adequately undertaken
Public participation was adequate: a consultative meeting was held on 11th June 2022, questionnaires were circulated, objections were raised by the Appellant and neighbours, and there was sufficient time between raising objections and issuance of the license.
Despite the medium risk classification, public participation was still mandated. A town hall meeting took place on 11th June 2022, questionnaires were distributed (12 filled), the Appellant and neighbouring institutions lodged objections, and objections were raised in June 2022 before the license issued in September 2022. Raising objections is itself a form of participation; lack of participation must not be confused with failure to act on the views raised.
Whether the EIA licence was null and void
The EIA license was lawfully and regularly issued; the Appellant's reliance on non-compliance with Regulation 17 was misplaced given the amended classification.
The court held that Regulation 7 does not require a project proponent to advertise or gazette notice, and the Appellant addressed only Regulation 17 non-compliance even after the amendment was brought to its attention in submissions before the NET. The Tribunal had correctly found the license lawfully issued.
Whether the Tribunal erred in failing to find negative effects of the petrol station on the estate
The Tribunal could not be faulted; that issue was not established as within its mandate and the Tribunal lacked jurisdiction over Article 47 and 73 breaches.
The court distinguished the John Kibicho case since Regulation 17 was inapplicable, and held the Tribunal's mandate is confined to Sections 129 and 130 of EMCA, so it could not determine constitutional breaches of Articles 47 and 73.
Legal principles established
#- The classification of projects as high or medium risk follows the amended Second Schedule to EMCA (Legal Notice No. 31 of 2019), under which service stations are medium risk projects requiring an EIA project report under Regulation 7, not a study report under Regulation 17.
- Even for a medium risk project, public participation is mandated, and raising an objection to a development is itself a form of public participation.
- The test for public participation is one of effectiveness; no single litmus test applies.
- The National Environment Tribunal's mandate is limited to Sections 129 and 130 of EMCA and it lacks jurisdiction to determine breaches of Articles 47 and 73 of the Constitution.
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their respective costs
- On appeal from
- National Environment Tribunal
- Jurisdiction invoked
- Appeal from the National Environment Tribunal under the Environmental Management and Co-ordination Act (Tribunal's mandate in Sections 129 and 130 of EMCA referenced)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wa Maina (Suing on His Own Behalf and as the Chairman of Lavington Five Roads Association c/o Githara & Associates Advocates) v National Environment Management Authority & another (Environment and Land Appeal E007 of 2023) [2025] KEELC 4756 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4756/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.