Justice v National Environmental Management Authority & 4 others (Environment and Planning Petition E027 of 2025) [2026] KEELC 345 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a challenge to EIA rules, holding existing public participation safeguards are constitutional and enforcement—not the law—is the problem.
What this practically means
#Executive summary
#Key legal issues
#Whether Regulation 23(4) of the Environmental (Impact Assessment and Audit) Regulations, 2003 violates Articles 35, 42, 69 and 70 of the Constitution by not mandating publication of EIA licensing decisions to the public
The Regulation is constitutional; read as a whole with Regulations 11-22 and the publication requirements for project reports, the framework provides for public participation and access to information
The court found that the EIA process already contains elaborate mechanisms for public participation, including mandatory publication of project reports in newspapers with nationwide circulation and radio announcements in official and local languages. The public is put on notice before the decision-making stage, and the cause of action arises then. The 1st Respondent also provides information on written request and publishes licences for high-risk projects on its website. The cost of mandatory newspaper publication (approximately Kshs 1 billion) was a public policy consideration against the relief. The petition therefore lacked merit.
Whether the 60-day appeal period under Section 129 of EMCA is unfair without mandatory publication of licensing decisions
Publication of the EIA licensing decision in a newspaper would not cure the lacuna on time for filing appeals because the public is made aware of the project before the decision-making stage
The court reasoned that the audience is made aware of the project through the proponent's publication of the project report, which sets timelines for raising objections before NEMA renders its decision. Since the cause of action arises at that point rather than after the decision, the absence of a mandatory publication requirement for the decision itself does not create the alleged constitutional defect.
Legal principles established
#- A court has a duty to read a provision to conform with the Constitution and should only declare a provision unconstitutional where it must
- There is a presumption in favour of the constitutionality of an enactment
Court orders
#- 1.The Petition is dismissed with no order as to costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 - petition seeking enforcement of constitutional rights (Articles 35, 48, 69); challenge to constitutionality of subsidiary legislation under EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justice v National Environmental Management Authority & 4 others (Environment and Planning Petition E027 of 2025) [2026] KEELC 345 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/345/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.