Kenya has experienced litigation challenging an EIA licence issued for construction of a 1050MW coal power plant. In 2019, the National Environmental Tribunal (NET) in Save Lamu & Others v NEMA & Another set aside the decision of the National Environmental and Management Authority (NEMA) to issue the EIA for because of, among other reasons;
- Breach of domestic climate change law: Failure to consider climate change issues and the Climate Change Act in the EIA study and approval process; and
- Breach of public participation requirements in the EIA study process.
Human rights grounds could also be used to challenge government’s approval of climate unfriendly projects. The Constitution guarantees the right to life (Article 26) and the right to a clean and healthy environment for present and future generations (Article 42). The state of the environment can be a threat to the right to life, and the right of life encompasses the right to clean and healthy environment (Peter K. Waweru v Republic). Secondly, projects that impact on the quality of the environment or are considered to have harmful effects which may interfere with the physical or mental well-being of persons could amount to violation of the right to clean and healthy environment (Adrian Kamotho Njenga v Council of Governors & 3 Others).
While the Tribunal in Save Lamu case did not deal with the issue of standing, the Court of Appeal has held that the expanded locus standi in environmental matters applies to cases challenging EIA licencing process (National Environmental Tribunal v Overlook Management Limited & 5 others). The Constitution and the Environmental Management and Coordination Act (EMCA) allow any person to apply to court to enforce environmental rights without the need to demonstrate that any person has or is likely to incur loss or suffer an injury (Art. 70(3) Constitution; Sec. 3 EMCA; Joseph Leboo & 2 others v Director Kenya Forest Services & another).
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/kenya
This country report has been produced by Iona McEntee, C2LI Senior Research Assistant and Lydia Omuko-Jung, C2LI Legal Analyst and C2LI National Rapporteur for Kenya. This summary is based on Lydia Omuko-Jung, “Climate Change Litigation in Kenya: Possibilities and Potentiality” in F. Sindico and M. Moise Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, 2021.