Ken Petrogas Limited v Mohammed & 5 others (Environment and Land Appeal 001 of 2024) [2025] KEELC 857 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld the cancellation of an EIA licence because the developer skipped mandatory one-week public participation notices — near-compliance is not enough.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Tribunal erred in finding that there was insufficient Public Participation before the issuance of the EIA License
- 2.Whether the order invalidating the NEMA EIA license No NEMA/EIA/PSL/25813 should be set aside
- 3.Costs
Key legal issues
#Whether there was sufficient public participation before issuance of the EIA licence
There was only partial compliance; absence of the mandatory one-week notices under Regulation 17(2)(c) and of proof of appointment of a qualified coordinator under 17(2)(d) rendered public participation inadequate
The court re-evaluated the record as a first appellate court. Regulation 17(2) is couched in mandatory terms ('shall'), and 'to ensure' under 17(2)(c) is obligatory. Ground h) before the Tribunal referred generally to Regulation 17(2), so notice was in issue; 17(2)(c) cannot be read in isolation. No specific notices appeared in the record. Substantial compliance does not suffice; failure to adhere to statutory provisions is a per se violation of the constitutional requirement of public participation.
Whether the Tribunal erred in cancelling the EIA licence
The Tribunal did not err; an illegal process cannot be sanitized
Once public participation was inadequate for want of full statutory compliance, the EIA study report was rendered inadequate and the licence could not stand. Relying on the principle that nothing can come out of an illegality (McJoy v Africa Co Ltd), the court held it could not sanitize a non-compliant process and upheld the cancellation of the licence.
Whether the Tribunal decided an issue not raised before it (the question of notice)
The issue was properly before the Tribunal
The appellant contended the Tribunal erred by determining notice under Regulation 17(2)(c) when only lack of meetings had been alleged. The court disagreed: ground h) extracted verbatim from the Notice of Appeal before the NET invoked Regulation 17(2) and failure to ensure sufficient public participation, and Regulation 17(2) introduces all the sub-regulations making them mandatory.
Legal principles established
#- Statutory compliance is a fundamental ingredient of public participation; failure to comply with prescribed statutory provisions on public participation is a per se violation of the constitutional requirement
- Regulation 17(2) of the Environmental (Impact Assessment and Audit) Regulations 2003 is mandatory; the requirement of one week's notice prior to public meetings cannot be read in isolation or satisfied by substantial compliance
- An appellate first-instance court must re-evaluate the evidence and draw its own independent conclusions
Court orders
#- 1.The judgment of the Tribunal delivered virtually on 5th April 2024 is hereby upheld
- 2.Each party to this appeal bears its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- National Environmental Tribunal (NET)
- NET Appeal No 19 of 2023
- Jurisdiction invoked
- Section 130 of the Environment and Land Court Act, 2011
Relief refused
#Setting aside of the NET judgment delivered on 5th April 2024
The Tribunal did not err in finding inadequate public participation for want of full statutory compliance
Validation of Environmental Licence No. NEMA/EIA/PSL/25813
As long as there was no full legal compliance the court cannot sanitize the process
Permanent injunction restraining the 1st to 5th Respondents from interfering with the appellant's project
The appeal having failed, no protective relief could issue
Costs on a full indemnity basis
Costs are discretionary and the court ordered each party to bear its own costs
Costs
Each party to this appeal to bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the judgement of the Tribunal delivered virtually on 5th April 2024 is hereby upheld.
I will order that each party to this appeal bears its own costs. Orders accordingly.
My understanding of the above dictum is that statutory compliance is a fundamental ingredient of public participation and in its absence there is no adequate public participation.
The law is the law. Both the constitutional and legal threshold are to be complied with.
The above requirement of 1 week notice prior to the meetings to me does not form part of the other notices and cannot be argued to be subsumed therein.
As long as there was no full legal compliance the court cannot sanitize the process.
Issues in the judgment
#The EIA licence is inconsistently referred to in the judgment as No NEMA/EIA/PSL/25813 and in one instance as No NEMA/EIA/PSL/2831
The case number of the present appeal is not stated anywhere in the judgment
Text corruption in the transcribed passage of section 59(3) EMCA, where the extract runs into the court's own narrative
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ken Petrogas Limited v Mohammed & 5 others (Environment and Land Appeal 001 of 2024) [2025] KEELC 857 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/857/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.