A project approval can fail before anyone reaches the easier-sounding question of whether land papers look neat. In Lamu, the National Environmental Tribunal asked whether the proposed coal plant's environmental assessment was lawful enough to support the licence.
In Save Lamu & 5 Others v National Environmental Management Authority (NEMA) & Amu Power Company Limited, the Tribunal considered Tribunal Appeal No. NET 196 of 2016. The appeal challenged NEMA's grant of Environmental Impact Assessment Licence No. NEMA/ESIA/PSL/3798, dated 7 September 2016, for a proposed 1050 MW coal-fired power plant at Kwasasi in Lamu County. The judgment records delivery at Nairobi on 26 June 2019. (printed pp. 1-3, 50)
This was not a title decision
The judgment should not be read as a title guarantee, land-sale clearance or current project-status certificate. The Tribunal confined its role to environmental licensing under section 129 of EMCA. It tested the EIA process, the ESIA report and NEMA's decision-making; pure economic viability and energy-policy choices were for other decision-makers. (printed pp. 4-6, 35)
Public participation was a central failure
The Tribunal found defects in both the EIA study phase and the post-study phase. Meetings from 2015 could not simply substitute for the later study-phase public participation required by Regulation 17, and the Tribunal found no proper public engagement during the January-July 2016 study period. (printed pp. 13-28, especially pp. 17-24)
The later notice-and-hearing process also failed. Conflicting publication dates in Taifa Leo, the Daily Nation and the Kenya Gazette made the comment deadline procedurally unfair. The 26 August 2016 public hearing came before the last logical date for comments, and NEMA had not properly supervised or reasoned through later submissions and lead-agency concerns. (printed pp. 20-28)
Site, alternatives and mitigation were not enough
The ESIA discussed alternatives, but the Tribunal was not satisfied that this amounted to real location and project-alternatives analysis. It found that the Kwasasi site and coal-plant concept had effectively been pre-determined. It also stressed the absence of a Strategic Environmental Assessment for the wider LAPSSET setting and the lack of detailed site and engineering plans. (printed pp. 30-32)
The mitigation findings were mixed. Some topics, including air-emissions controls and some coal-handling measures, were addressed. But ash-yard and ash-pit mitigation remained inadequate because of flooding risk, missing design detail, uncertain long-term fly-ash handling and insufficient location information. Climate-change consideration was also materially incomplete. (printed pp. 36-45)
NEMA's licence conditions were generic rather than tailored to the coal-plant project, leaving no substantial basis for the grant after an incomplete and procedurally flawed process. (printed pp. 45-48)
The order required a fresh route
The appeal was allowed. The Tribunal set aside NEMA's decision to issue the 7 September 2016 EIA licence. If Amu Power still wished to pursue the project, it had to undertake a fresh EIA study complying with the earlier terms of reference, the Director-General's 26 October 2015 directive and the EIA Regulations. The fresh route had to include approved and legible architectural and engineering plans and consider later statutory requirements including the Climate Change Act 2016, Energy Act 2019 and, where applicable, the Natural Resources (Classes of Transactions Subject to Ratification) Act 2016. (printed pp. 48-50)
NEMA was directed to engage lead agencies and the public properly, share reasons for grant or refusal, and publish the decision and summary of reasons in a newspaper with nationwide circulation. Each party bore its own costs. The judgment also noted a statutory right of appeal within 30 days. (printed pp. 48-50)
This article does not say whether the project was later revived, appealed, stayed, relicensed, abandoned, reconfigured or enforced against. Later status was not researched for this source.
For ArdhiScore users, the lesson is narrow but important: high-value land and project decisions need source-linked evidence, legal-process questions and explicit uncertainty flags. A licence number should not be turned into certainty without reading the underlying record.
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Primary source
ELAW-hosted PDF copy of the National Environmental Tribunal judgment: Save Lamu & 5 Others v National Environmental Management Authority (NEMA) & Amu Power Company Limited, Tribunal Appeal No. NET 196 of 2016, delivered 26 June 2019, available at Source PDF. This article cites printed PDF pages because the admitted source record supplied page locators, not numbered paragraphs. It is educational, not legal advice.