Afriwell Ltd v Barrow (Sued in his Capacity as Chairperson for and on Behalf of Lower Kabete Residents Association) & 5 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 4219 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated Afriwell's petrol station licence, ruling service stations are medium-risk projects requiring lighter public participation, not the stricter high-risk process.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was properly before the Court given the alleged late filing
The objection, raised for the first time in submissions without notice, was unsustainable; and under Section 130(5) of EMCA the Court declined to strike out the appeal
No preliminary objection or application was filed and the Appellant was never put on notice to respond, contrary to fair hearing under Article 50(1). Submissions cannot originate a jurisdictional challenge whose factual substratum was never pleaded. In any event, the Court applied Section 130(5) of EMCA and declined to strike out the appeal, considering it on the merits.
Whether the project was high-risk
The project is a medium-risk project under paragraph 2(9)(a) of the Second Schedule to EMCA; the general high-risk criteria are residual and cannot displace a specific listing
Paragraph 2(9)(a) expressly names service stations as medium-risk. The general criteria in paragraphs 3(1) and 3(2)(a) operate as catch-alls for projects not specifically assigned a tier. Specific provisions are not displaced by general ones, and change of user is not a risk-classification criterion.
Whether public participation was insufficient and the licence properly revoked
The Tribunal applied Regulation 17, which governs high-risk study-tier projects; measured against the Regulation 7 regime applicable to medium-risk projects, the participation met the effectiveness threshold
Once the project is medium-risk, Regulation 17 does not apply. The record shows questionnaires, a public meeting, media and Gazette advertisement, and a NEMA site inspection. Objections were also ventilated in a full appeal before the Tribunal. The participation was not ineffective in the Mui Coal Basin sense.
Whether the Tribunal invalidated the Change of User approval
It did not; the approval remains valid and presumptively lawful
The Tribunal used the change of user only as an evidentiary marker of neighbourhood character, not as an adjudication on the approval's validity. An administrative decision of a competent authority enjoys a presumption of legality until set aside by a court or tribunal of competent jurisdiction.
Burden of proof, fair hearing, ultra vires and bias grounds
All failed: the evidential burden properly shifted, the hearing was fair, Regulation 17 is not ultra vires, and error of law does not amount to bias
The associations laid an evidential foundation, shifting the evidential burden under Sections 107-112 of the Evidence Act. The Appellant was heard viva voce with witnesses and cross-examination. Regulation 17 implements Articles 10(2)(a) and 69(1)(d) of the Constitution. An erroneous legal conclusion is the ordinary stuff of appeal, not bias.
Legal principles established
#- A project specifically and expressly named as a medium-risk project in the Second Schedule to EMCA is not re-classified as high-risk by reference to the general residual criteria
- Compliance with one regulatory regime (development permission under the Physical and Land Use Planning Act) cannot be transmuted into an aggravating factor under a different statute without express statutory warrant
- A jurisdictional objection founded on limitation is factual in its foundation and cannot be raised for the first time in written submissions without notice
- A first appellate court may not make first-instance findings of fact on contested technical material which the tribunal of first instance never adjudicated
- In environmental litigation mounted by public-spirited residents' associations, the Court leans against visiting costs upon such litigants
Court orders
#- 1.The Appeal is allowed and the judgment and decree of the National Environment Tribunal delivered on 29th November 2024 in Tribunal Appeal No. NET 31 of 2022 are set aside in their entirety
- 2.Environmental Impact Assessment Licence No. NEMA/EIA/PSL/21099 issued on 23rd August 2022 is reinstated and shall be of full force and effect, without prejudice to NEMA's supervisory powers under EMCA
- 3.Clarificatory order that nothing in the judgment of the Tribunal or this judgment quashes, invalidates or otherwise affects the Change of User approval issued by the 6th Respondent in respect of Plot LR Nos. 5979/7 and 5979/9
- 4.Each party shall bear its own costs of this appeal and of the proceedings before the Tribunal
- On appeal from
- National Environment Tribunal
- NET 31 of 2022
- Jurisdiction invoked
- Section 130 of the Environmental Management and Co-ordination Act, 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Afriwell Ltd v Barrow (Sued in his Capacity as Chairperson for and on Behalf of Lower Kabete Residents Association) & 5 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 4219 (KLR)", Case Analysis (2026). Environment and Land Appeal (from Tribunal Appeal No. NET 31 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4219/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.