Watamu Hospital Limited v ATC Kenya Operations Limited & National Environment Management Authority (Interested Party)
The bottom line
#A Kenyan court ordered a telecom company to remove a phone mast built near Watamu Hospital because it started construction before getting proper environmental approval.
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 Base Receiver Transmission Station was constructed after compliance with the procedural requirements under the EMCA Act
- 2.Whether the construction of the Base Transmission Station is harmful to the Plaintiff's right to a clean and healthy environment, and if so, what reliefs the Plaintiff is entitled to
- 3.Whether the Licenses issued to the Defendant ought to be cancelled by an order of this court
- 4.Whether the Base Transmission Station ought to be demolished
- 5.Whether the Plaintiff is entitled to general damages for violation of the right to a clean and healthy environment
Key legal issues
#Compliance with EMCA procedural requirements before construction
The BTS was commenced without compliance with the mandatory procedural requirements under EMCA and the Regulations; the later EIA Licence did not cure the illegality
Construction had commenced before the suit was filed in April 2022; NCA issued a Suspension of Works Order on 21st April 2022; the questionnaire relied on was signed 30th April 2022; the EIA Licence was only issued on 16th November 2022. DW1 admitted the licence date and that the mast was incomplete on 30th April 2022. The chronology showed implementation preceded the environmental process.
Whether an EIA Study Report or a Comprehensive Project Report was required
A full EIA Study Report was required because telecommunications infrastructure falls within the Second Schedule; the Defendant failed to show NEMA exercised the Section 58(2) proviso
The Second Schedule expressly lists telecommunication infrastructures. Section 58(2) requires a full study report unless the Authority directs otherwise. The Defendant produced only an EIA Comprehensive Project Report and adduced no evidence that NEMA dispensed with the study report, so the assessment process was incomplete at commencement.
Whether public participation was adequate
The questionnaire exercise did not constitute the full and meaningful public participation required by Regulation 17; engagement occurred after implementation had commenced
PW1, PW2 and PW3 all received questionnaires after construction had begun or completed. DW1 was unsure whether a sensitization forum was held and had no minutes. A questionnaire completed on 30th April 2022, after construction commenced and after suit was filed, could not show the community had a reasonable opportunity to influence the assessment before implementation.
Whether the EIA Licence should be cancelled
The EIA Licence was obtained unprocedurally and was revoked
The licence was issued long after commencement of construction and after the suit was instituted. The Defendant did not show a full EIA Study Report was submitted and considered under Section 58(2), nor that Regulation 17 public participation preceded commencement. The issue was not NEMA's jurisdiction but the legality of the process preceding the licence.
Whether the BTS ought to be demolished/removed
A mandatory removal order was granted as a remedial, not punitive, measure
The BTS was commenced in disregard of statutory environmental safeguards, in proximity to a hospital, without prior EIA Study compliance or meaningful participation. Allowing it to remain would permit continuance of an unlawfully established development and reward non-compliance with environmental law.
General damages for violation of the right to a clean and healthy environment
Kshs. 200,000/= awarded as constitutional compensation despite absence of expert medical evidence of injury
The claim is founded on Article 42 and is constitutional, not tortious. Following CMM v Standard Group, once a violation is proved on a balance of probabilities, proof of actual loss is unnecessary. The court considered the nature and duration of the violation, deliberate pre-licensing commencement, proximity to the hospital, generator noise and failed public participation.
Legal principles established
#- A proponent may not commence implementation of a Second Schedule project and later regularize it by obtaining an EIA Licence; assessment and licensing must precede commencement
- Projects in the Second Schedule to EMCA require a full EIA Study Report, not a mere project report, unless NEMA lawfully directs otherwise under the proviso to Section 58(2)
- A subsequent EIA Licence cannot retrospectively cure the procedural defects of a project commenced before licensing
- Once a violation of a constitutional right is proved on a balance of probabilities, proof of actual loss or damage is not a prerequisite to compensatory relief
Court orders
#- 1.Declaration that the EIA Licence issued to the Defendant for the Watamu Base Transceiver Station on Land Parcel No. Gede/Kirepwe/B/80 was obtained unprocedurally, is unlawful, and is revoked
- 2.Grant of prayers (a), (c), (d) and (f) as prayed in the plaint dated 26th April 2022
- 3.Mandatory order that the Defendant remove the telecommunication tower (base transceiver station) built on Gede/Kirepwe/B80, originally Gede/Kirepwe/B216, within sixty (60) days of the judgment
- 4.In default of compliance, the Plaintiff may procure a qualified contractor to enter the parcel, remove the tower and associated structures and cart away the debris
- 5.Removal to be supervised by NEMA and the County Government of Kilifi
- 6.Costs of the demolition and removal to be borne by the Defendant
- 7.General damages of Kshs. 200,000/= for violation of the right to a clean and healthy environment
- 8.Defendant to bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over environmental and land use disputes (Article 162(2)(b) Constitution); claim founded on Article 42 and Section 58 EMCA
Relief refused
#Prayer (b) of the plaint (mandatory injunction with self-help demolition within 7 days) - not granted as such; instead a supplemental 60-day removal order under prayer (c) was issued
The court granted prayer (c) with a 60-day period and supervised removal rather than the 7-day self-help demolition in prayer (b)
Costs
The Defendant shall bear the costs of the suit.
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 law does not contemplate that a proponent may commence implementation and subsequently regularize the project through the issuance of an EIA Licence.
the Court finds that the EIA Licence issued to the Defendant was obtained unprocedurally and cannot lawfully sustain the development.
the questionnaire exercise relied upon by the Defendant did not, on the evidence adduced, constitute the full and meaningful public participation contemplated by Regulation 17.
This court further grants prayers no (a), (c), (d) and (f) as prayed in the plaint dated 26th April 2022.
the Defendant shall remove the telecommunication tower (base transceiver station) built on the parcel of land known as Gede/Kirepwe/B80, originally Gede/Kirepwe/B216, within sixty (60) days of this judgment
The Defendant shall also bear the costs of the suit.
Issues in the judgment
#Paragraph numbering is disordered - numbers 26, 28, 29 and 76 are each used twice, and sequence jumps from 57 to 62 and 66 to 67
Defendant's defence dated '29th February 2024' - 2024 was a leap year so date is valid, but plaint amendment dated '26th February 2024' vs filing header 'FABM-31.01.24' differ
Revocation clause uses mixed number agreement: 'was obtained unprocedurally, and are thus unlawful and is hereby revoked'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watamu Hospital Limited v ATC Kenya Operations Limited & National Environment Management Authority (Interested Party)", Case Analysis (2026). ELCC No. 28 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6125/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.