Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a coal plant licence was invalidly issued because the public was not properly consulted.
What this practically means
#Executive summary
#Key legal issues
#Whether the ESIA process met the constitutional and statutory threshold for public participation
It did not. The appellant relied on scoping-phase meetings held before the EIA study was ordered, contrary to Regulation 17(2); the gazette notice was published late; radio broadcasts lacked proof of nationwide coverage; and the Kwasasi public hearing of 26th August 2016 was held three days before the 30-day comment window expired.
The 2015 amendment to Section 58 of EMCA required a full EIA study for Second Schedule projects. NEMA's directive of 26th October 2015 ordered prospective stakeholder consultation, yet the appellant recycled pre-amendment scoping meetings as evidence of compliance. The premature public hearing cut off public submissions. The Tribunal correctly applied the effectiveness test and the Court found no error.
Whether the ESIA study sufficiently analyzed project and location alternatives
No credible analysis of location alternatives existed because the site was predetermined by Government as part of LAPSSET, and no Strategic Environmental Assessment of LAPSSET had been conducted as ordered in Mohamed Ali Baadi.
The ESIA report itself conceded that the Ministry identified the site. The Tribunal held that only a SEA undertaken prior to the expression of interest could properly consider location alternatives, and the Court adopted that reasoning, holding that developing LAPSSET components before the SEA would be placing the cart before the horse.
Whether the ESIA Study Report contained adequate mitigation measures
The Court did not need to examine the detailed evidence on the four deficient items (ash yard and pit, coal conveyor, limestone quarry, climate change) because the overarching finding of inadequate public participation condemned the entire study regardless.
Since public participation on the entire ESIA Study Report was found unsatisfactory, any mitigation measures - even if adequate - would fail for want of public interrogation. The Tribunal's qualification of the mitigation measures as 'mere academic presentations' until subjected to public participation was endorsed. The Court also endorsed the finding that the study ignored the Climate Change Act 2016.
Whether the EIA complied with the Terms of Reference approved by NEMA
The Terms of Reference were not complied with, given the failures on public participation, location alternatives and the absence of the LAPSSET SEA.
The Terms of Reference required appropriate stakeholder engagement, development of mitigation measures and project alternatives analysis. Each of these components was found deficient in the preceding sections, so compliance with the Terms of Reference was inconceivable.
Whether the Cross-Appeal was competently before the Court
It was not. EMCA provides no procedure for a cross-appeal, no extension of time was obtained, and the notice filed outside the 30-day period in Section 130(1) was incompetent and was struck out.
Section 130(1) EMCA requires appeals against Tribunal decisions to be lodged within 30 days. Unlike the Court of Appeal Rules (Rule 95), EMCA makes no provision for notices of cross-appeal. A respondent wishing to challenge a Tribunal decision must file its own appeal within 30 days.
Whether the locus standi of the 1st respondent could be raised for the first time on appeal
No. The issue was not among the agreed issues before the Tribunal and was a new issue raised for the first time on appeal.
Issues for determination in an appeal should arise from the proceedings below. The appellant could not simultaneously rely on its engagement with Save Lamu to prove public participation while denying the organization's capacity to sue.
Legal principles established
#- Public participation is not optional in planning and environmental management in Kenya, and the precautionary principle is ingrained in Kenyan environmental law, placing the burden on the project proponent to demonstrate no harm where prescribed procedure is not followed
- Where EMCA and the EIA Regulations prescribe mandatory public participation steps that are omitted, the proponent bears the burden of demonstrating no environmental harm, and a licence issued on such a flawed process is a nullity
- An appellate court should not entertain issues raised for the first time on appeal that never arose in the court below
- A party cannot blow hot and cold by relying on an entity's participation for public participation purposes while simultaneously challenging its locus standi
Court orders
#- 1.The appeal is dismissed
- 2.The Cross-Appeal (notice of cross-appeal filed 5th September 2019) is struck out as incompetent
- 3.Each party to bear their own costs
- 4.The decision and orders of the National Environment Tribunal in NET/196/2016 delivered 26th June 2019 are upheld
- On appeal from
- National Environment Tribunal at Nairobi
- NET/196/2016
- Jurisdiction invoked
- Section 130 of the Environmental Management and Coordination Act (EMCA) - appeal from the National Environment Tribunal to the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 (KLR)", Case Analysis (2025). Tribunal Appeal No. NET/196/2016 (appeal to the Environment and Land Court at Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7285/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.