Vipingo Development Limited & another v Kai & 6 others (Civil Appeal E012 of 2025) [2025] KEELC 8666 (KLR)
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
#Key legal issues
#Jurisdiction of the NET - Section 129(1) vs 129(2) of EMCA
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
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.
Adequacy of public participation before issuance of the EIA licence
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)
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.
Proportionality of cancelling a licence for a completed, operational project
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
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.
Alternative remedies - environmental audits and structural interdicts
Environmental Audits under Section 68 of EMCA, enforced through an order of mandamus, are the most effective post-licensing remedy instead of closure
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.The decree and orders issued by the Tribunal are rescinded and superseded by the court's orders
- 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.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.The audit exercise shall be completed within 3 months and a report filed in court
- 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.