Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Appeal (ELC) arising from National Environmental Tribunal Appeal No. 3 of 2024· [2025] KEELC 8666 (KLR)

Vipingo Development Limited & another v Kai & 6 others (Civil Appeal E012 of 2025) [2025] KEELC 8666 (KLR)

Environment and Land Court of Kenya
10 December 2025
8,530 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

#

A Kenyan court reinstated an EIA licence cancelled over poor public participation, ruling that audits, not closure, are the right fix for an already-running project.

What this practically means

#

Executive summary

#
The 1st to 5th respondents successfully appealed to the National Environment Tribunal (NET Appeal No. 3 of 2024), which on March 10, 2025 cancelled EIA Licence No. Nema/EIA/PSL/8728 issued by Nema on December 10, 2019 for want of adequate public participation, with each party bearing its own costs. The licence holder and Nema appealed to the Environment and Land Court at Malindi. E. K. Makori J framed four issues: the Tribunal's jurisdiction vis-à-vis the 60-day limit in Section 129(1) of EMCA; the adequacy of public participation; the proportionality of cancelling a licence for a completed, operational project; and alternative post-licensing remedies. On jurisdiction, the court, guided by Principle 10 of the Rio Declaration and the Aarhus Convention, held the Tribunal properly entertained the appeal. On public participation, the court found no fault with the Tribunal's factual findings that Regulations 17(2)(a), (b), (c) and (d) of the EIA and Audit Regulations, 2003 were not complied with. However, on proportionality, the court held that cancelling the licence of a completed project, into which over ten billion shillings had been invested and with no scientific evidence of pollution, was disproportionate, following Kibos Distillers on estoppel, legitimate expectation and continuing mandamus. The appeal was partially allowed: the Tribunal's cancellation orders were set aside on limitation grounds, and Nema was directed by mandamus, under Section 68 of EMCA, to conduct an environmental audit within three months, with a report filed in court. Each party was ordered to bear its own costs.

Key legal issues

#
01

Jurisdiction of the NET - Section 129(1) vs 129(2) of EMCA

Holding

The NET properly exercised jurisdiction in hearing the appeal notwithstanding the 60-day limitation argument under Section 129(1); issues under either stream must be balanced with constitutional principles and international standards such as public participation

Reasoning

The court acknowledged that the ELC has been divided on whether appeals concerning EIA licences fall under Section 129(1) or 129(2) of EMCA. Relying on Principle 10 of the Rio Declaration and the Aarhus Convention's access rights (information, participation, justice), and building on the Tribunal's reasoning, the judge held the Tribunal acted on constitutionally entrenched principles and properly determined it had jurisdiction.

02

Adequacy of public participation before issuance of the EIA licence

Holding

The court found no fault with the Tribunal's conclusion that public participation fell short of the statutory framework (Regulations 17(2)(a), (b), (c) and (d) of the EIA and Audit Regulations, 2003)

Reasoning

The Tribunal found no evidence of compliance with Regulation 17(2)(c) (advance notices), Regulation 17(2)(a)(i) (posters), Regulation 17(2)(b) (at least three public meetings - only one was held) and Regulation 17(2)(d) (qualified coordinator). The ELC reviewed these factual findings, found the Tribunal cited the correct law and precedents (Mui Coal Basin; Mohamed Ali Baadi), and concurred that participation was inadequate.

p. 13
03

Proportionality of cancelling a licence for a completed, operational project

Holding

Cancellation of the EIA licence was disproportionate given the project's completion, the massive investment, the delay by the respondents, and the absence of scientific evidence of pollution

Reasoning

The licence was issued in 2019, the project was complete and operational, billions of shillings were invested and no scientific report showed environmental harm. Following Kibos Distillers, which applied estoppel, legitimate expectation and innovative remedies like continuing mandamus, the court held that closure was not the only effective remedy and that cancellation was made in error.

p. 17
04

Alternative remedies - environmental audits and structural interdicts

Holding

Environmental Audits under Section 68 of EMCA, enforced through an order of mandamus, are the most effective post-licensing remedy instead of closure

Reasoning

Under Section 67(2) of EMCA, cancellation of a licence halts the project absolutely, which would close a completed plant. Requiring a fresh EIA licence would be futile as Section 58 targets new, expanded or altered projects. Following Kibos Distillers, the court favoured a continuing-mandamus-style remedy: a Nema-conducted environmental audit within three months with a report filed in court.

Legal principles established

#
  • Appeals concerning EIA licences must be filed within the 60-day limit under Section 129(1) of EMCA where that stream applies, and an appeal filed more than five years after the licence was issued was out of time
  • The National Environment Tribunal properly had jurisdiction notwithstanding the timing arguments, where issues raised are balanced with constitutional and international environmental principles of public participation
  • Cancelling the EIA licence of a completed and operational project, absent scientific evidence of environmental harm, is a disproportionate remedy; environmental audits and continuing mandamus are more appropriate post-licensing remedies

Court orders

#
  1. 1.The decree and orders issued by the Tribunal are rescinded and superseded by the court's orders
  2. 2.The orders cancelling EIA license No. Nema/EIA/PSL/8728 are set aside because the appeal before the NET was filed more than 5 years after the license was issued
  3. 3.Pursuant to Section 68 of EMCA, an order of mandamus is issued directing the 6th Respondent to conduct an environmental audit to confirm that the appellant's project operations align with the statements and predictions in the initial EIA study report, including confirmation that all reasonable steps to mitigate unforeseen negative environmental impacts have been taken
  4. 4.The audit exercise shall be completed within 3 months and a report filed in court
  5. 5.Each party is to bear its own costs
On appeal from
National Environment Tribunal
NET Appeal No. 3 of 2024
Jurisdiction invoked
Section 130 of the Environmental Management and Co-ordination Act, Cap 387 (appeals from the National Environment Tribunal to the Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Vipingo Development Limited & another v Kai & 6 others (Civil Appeal E012 of 2025) [2025] KEELC 8666 (KLR)", Case Analysis (2025). Environment and Land Appeal (ELC) arising from National Environmental Tribunal Appeal No. 3 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8666/eng@2025-12-10

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