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ELCDismissedPetition dated 24th July 2024 (number not stated in judgment)· [2025] KEELC 4927 (KLR)

Sikalieh (Being Chairman of and Suing in Public Interest and on behalf of the Members of Karen Langata District Assoc) v Kenya Railways Corporation & 5 others; National Environment Management Authority & another (Interested Parties) (Environment and Planning Petition E028 of 2024) [2025] KEELC 4927 (KLR)

Environment and Land Court
1 July 2025
8,205 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 allowed the Ngong-Riruta railway project to proceed, but warned developers they broke the law by starting construction before getting their EIA licence.

What this practically means

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Executive summary

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The Petitioners challenged the Ngong-Riruta Meter Gauge Railway Commuter Line project, seeking declarations, a permanent injunction, certiorari and mandamus on the ground that the project was commissioned in December 2023 without prior public participation or an EIA licence, contrary to Articles 10, 42, 69, 153, 201 and 232 of the Constitution and EMCA. The Respondents, including Kenya Railways Corporation and its ESIA consultants, asserted that extensive stakeholder engagement occurred between November 2023 and April 2024, that an ESIA report was prepared and an EIA licence issued by NEMA on 19th September 2024. The court framed five issues and held that adequate public participation was conducted before the ESIA report, applying the effectiveness test in Mui Coal Basin. However, photographic evidence established that construction commenced before the EIA licence issued, breaching Section 58 of EMCA; the court censured the Respondents but declined to nullify the works, citing the project's public good and the existence of mitigation measures. The permanent injunction and certiorari were refused because the Petitioners did not prove harm or threatened harm, the ESIA report containing measures addressing their concerns. The mandamus prayer was not determined for want of jurisdiction. The court upheld its own jurisdiction against the exhaustion objection since no licence decision existed when the petition was filed. The petition was dismissed with no costs awarded due to the public nature of the case, with liberty to return to court if mitigation measures are breached.

Key legal issues

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01

Whether adequate public participation was conducted

Holding

Public participation was adequate; the EIA licence could not be declared void for want of participation

Reasoning

The court applied the Mui Coal Basin effectiveness test. Evidence showed stakeholder meetings from November 2023 through April 2024, a letter to the Petitioner in October 2023 flagging the ESIA process, attendance lists with contacts, and diverse participants. The Petitioner, who attended meetings and proposed an alternative route, failed to discharge the burden of disproving the meetings by contacting listed attendees.

p. 13
02

Whether the project unlawfully commenced before the EIA licence

Holding

Yes - the Respondents commenced works before the licence issued on 19th September 2024, breaching Section 58 EMCA, but the works were not nullified

Reasoning

Photographs showed machinery levelling ground and an incomplete building before 19th September 2024, contradicting the 1st Respondent's denial. The court faulted the Respondents for breaking ground prematurely but declined to nullify works because procedural requirements had commenced and the project serves the public good with mitigation measures in the EIA report.

p. 14
03

Whether the right to a clean and healthy environment was infringed

Holding

No - the Petitioner failed to prove harm or threatened harm

Reasoning

The ESIA report contained mitigation measures (C-ESMP, EIA for material sites, limited vegetation clearance, tree replacement) addressing the concerns raised. The Petitioner only criticised participation and did not explain why the mitigation measures were insufficient. The court balanced environmental rights against the public interest in easing transport congestion.

p. 16
04

Whether the court had jurisdiction notwithstanding the exhaustion doctrine

Holding

The court had jurisdiction because no NET-appealable decision existed when the petition was filed

Reasoning

As at July 2024, NEMA had not issued the EIA licence, so there was no decision to appeal to the National Environment Tribunal. The Petitioner could not be required to exhaust a remedy against a licence issued after their proceedings were filed.

p. 14

Legal principles established

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  • A project shall not commence until an EIA licence is issued under Section 58 of EMCA
  • Commencement of a project before an EIA licence is a breach attracting judicial censure, even where subsequent licensing regularises the process
  • Public participation is assessed by an effectiveness test, not a litmus test
  • Environmental harms during project implementation may be addressed through monitoring and improvement/restoration orders, preserving the petitioner's right to return to court

Court orders

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  1. 1.Petition dismissed
  2. 2.No costs awarded due to the evident public nature of the case
  3. 3.Petitioner at liberty to move the court during construction if the Respondents fail to adhere to mitigation measures
  4. 4.Mandamus prayer (review of transport policy and public funds allocation) not dealt with for want of jurisdiction; Petitioner at liberty to pursue it in a court with jurisdiction

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 2(5), 3, 10(1)(2), 20(2), 25(a) (Covenant), 42, 60(1)(c & e), 69(1)(a,b,d,e,f,g), 69(2), 70, 70(2)(a), 153, 162(2), 201(a), 232(1)(d & f)
  • Environmental Management and Co-ordination Act (EMCA)Sections 3(5)(d), 58, 59, 2nd Schedule, Part VI
  • Environmental (Impact Assessment and Audit) RegulationsRule 9
  • Public Finance Management Act
  • Public Investment Management Regulations2022
  • Sessional Paper No. 3 of 2023
  • Convention on Biological DiversityArticle 8
  • Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African RegionArticle 2

Cases cited (22)

  • Tiara Villas Management Ltd & 4 others v Joe Mutambu & 3 others
    [2022] KEELC 941
  • Mary Waithira Njoroge v Muwasco
    [2022] eKLR
  • Mugo & 14 others v Matiang'i
    [2022] KEHC 158
  • Save Lamu & 5 others v NEMA & another
    [2019] eKLR
  • KM & 9 others v AG & 7 others
    [2020] eKLR
  • British American Tobacco v CS Ministry of Health
    [2019] KESC 15
  • Mohamed Ali Baadi & Others v Attorney General & 11 Others
    [2018] eKLR
  • Communist Party of Kenya v Nairobi Metropolitan Services & 3 others
    [2022] eKLR
  • Ken Kasing'a v Daniel Kiplagat Kirui & 5 others
    [2015] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] EA 1169
  • Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & Others
    [2015] eKLR
  • Republic v Principal Kadhi, Mombasa, Ex parte Alibhai Adamali Dar & Others
    [2022] eKLR
  • Republic v Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants
    [2007] 2 EA 441
  • Satrose Ayuma & Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & Others
    [2013] eKLR
  • Legal Advice Centre & 2 others v County Government of Mombasa & 4 others
    [2018] eKLR
  • IEBC v NASA Kenya & 6 Others
    [2017] eKLR
  • Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya
    JR Misc. App. No. 374 of 2012
  • Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
    2006 (2) SA 311 (CC)
  • Marshall vs Canada
    Communication No. 205/1986, UN Doc CCPR/C/43/d/205/1986(1991)
  • African Centre for Rights and Governance (ACRAG) & 3 others v Municipal Council of Naivasha
    [2017] KEELC 2781 (KLR)
  • New Jersey -v- New York
    283 U.S. 473
  • Tapesh Bhardwaj Sharma -v- UP State Pollution Control Board & Others
    Original Application No. 596 of 2016
Jurisdiction invoked
Article 162(2) of the Constitution / Environment and Land Court Act - jurisdiction over environmental claims; court confirmed jurisdiction despite exhaustion objection

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, "Sikalieh (Being Chairman of and Suing in Public Interest and on behalf of the Members of Karen Langata District Assoc) v Kenya Railways Corporation & 5 others; National Environment Management Authority & another (Interested Parties) (Environment and Planning Petition E028 of 2024) [2025] KEELC 4927 (KLR)", Case Analysis (2025). Petition dated 24th July 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4927/eng@2025-07-01

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