Kenya's Climate Change Act: Key Provisions and Implications for Businesses
A practical guide to Kenya's Climate Change Act 2016 and 2023 amendments: institutions, carbon markets, benefit sharing and what businesses must do to comply.
Read articleBefore a road, factory, housing estate, quarry, power plant or hotel is built in Kenya, the law asks a simple question: what will this project do to the environment and the people around it? Environmental Impact Assessment (EIA) is the legal process for answering that question. It is a condition of obtaining approval for many projects, and failure to comply can halt construction, attract criminal penalties and lead to costly litigation. This guide explains when an EIA is required, how the process works and why public participation is central to it.
Key takeaways
- EIA is governed by the Environmental Management and Co-ordination Act, 1999 (EMCA), as amended in 2015, and the Environmental (Impact Assessment and Audit) Regulations, 2003.
- Projects listed in the Second Schedule to EMCA must obtain an EIA licence from NEMA before they start.
- Projects are classified as low, medium or high risk, which determines the level of assessment required.
- Meaningful public participation is a constitutional and statutory requirement, and its absence is a common reason licences are cancelled.
- Decisions can be challenged before the National Environment Tribunal, with further appeal to the Environment and Land Court.
The legal foundation
Article 42 of the Constitution guarantees every person the right to a clean and healthy environment. Article 69 requires the State to establish systems of environmental impact assessment, environmental audit and monitoring, and to encourage public participation in the management of the environment. Article 70 allows any person to apply to court where this right is threatened, without having to show personal loss.
EMCA gives effect to these provisions. The National Environment Management Authority (NEMA) is responsible for administering the EIA system, issuing licences and enforcing compliance.
When is an EIA required?
Section 58 of EMCA requires a proponent of any project listed in the Second Schedule to submit a project report to NEMA and obtain an EIA licence before financing, commencing, proceeding with or carrying out the project. Following the 2015 amendments and the updated Second Schedule, projects are classified as:
| Risk category | Examples | Requirement |
|---|---|---|
| Low risk | Small-scale developments with minimal environmental impact | Generally exempt from a full EIA, subject to other approvals and general environmental duties |
| Medium risk | Smaller commercial buildings, minor roads, small-scale processing facilities | Submission of a comprehensive project report |
| High risk | Large-scale infrastructure, mining and quarrying, energy generation, large dams, oil and gas, major industrial plants, large housing estates | A full EIA study report |
The precise category depends on the size, location and nature of the project. Projects near sensitive areas, such as wetlands, forests, riparian zones, coastlines or protected areas, attract closer scrutiny. Developers should confirm the applicable category with a licensed EIA expert early in the planning process.
The EIA process step by step
1. Screening and scoping
The proponent, with a lead expert registered with NEMA, determines whether the project requires an EIA and identifies the key issues to be studied, such as air and water quality, biodiversity, waste, traffic, cultural heritage and social impacts.
2. Project report or EIA study
The expert prepares the project report or EIA study report. A full study must describe the project, the baseline environment, the likely impacts, alternatives considered (including the "no project" option), mitigation measures and an Environmental Management Plan.
3. Public participation
Public views must be sought during the study, typically through public meetings, questionnaires and consultations with affected communities, county governments and relevant agencies. This is discussed in more detail below.
4. Submission and review by NEMA
The report is submitted to NEMA with the prescribed fee. For EIA study reports, NEMA publishes a notice in the Kenya Gazette and in newspapers inviting public comments, and the report is made available for public inspection. NEMA may also refer the report to lead agencies for comment.
5. Decision
NEMA may approve the project and issue an EIA licence with conditions, require further information, or reject the application. Licences often contain detailed conditions on mitigation, monitoring and reporting.
6. Monitoring and audits
After a project begins, the proponent must comply with the licence conditions and carry out environmental audits. An initial audit is usually required within a set period of commencement, followed by regular self-audits. NEMA can also carry out control audits.
Public participation: getting it right
Public participation is a national value under Article 10 of the Constitution. Kenyan courts have repeatedly held that it must be meaningful, not a box-ticking exercise. Good public participation should:
- reach the people actually affected by the project, including vulnerable groups;
- provide information in a language and format people can understand;
- be held early, when the design can still change;
- give people a reasonable opportunity to raise concerns and receive responses; and
- be properly documented, including attendance records, minutes and how concerns were addressed.
Inadequate public participation is one of the most common grounds for challenging EIA licences. In 2019, the National Environment Tribunal cancelled the EIA licence for the proposed Lamu coal power plant, finding among other things that public participation had been inadequate and that the project's impacts had not been properly assessed.
Challenging an EIA decision
A person aggrieved by a NEMA decision, including the grant, refusal or conditions of an EIA licence, may appeal to the National Environment Tribunal within the time set by EMCA (generally 60 days from the date of the decision). The Tribunal may confirm, vary or cancel the decision, and may stop works pending the appeal. Decisions of the Tribunal can be appealed to the Environment and Land Court. Separately, constitutional petitions may be filed in the Environment and Land Court where the right to a clean and healthy environment is threatened.
Consequences of non-compliance
- Stop orders: NEMA can order a project to stop until it complies.
- Restoration orders: proponents may be required to restore the environment at their own cost.
- Criminal penalties: EMCA creates offences for failing to obtain a licence, breaching licence conditions and giving false information, punishable by fines and imprisonment.
- Financing risk: lenders and development finance institutions require proof of environmental compliance, often to international standards.
- Litigation: communities and civil society organisations increasingly challenge projects in court.
EIA checklist for developers
- Engage a NEMA-registered lead expert at the feasibility stage.
- Confirm the project's risk category and required level of assessment.
- Build public participation into the project timeline and budget.
- Obtain the EIA licence before any site works, financing or construction begins.
- Track licence conditions and diarise audit deadlines.
- Coordinate with other approvals, such as county planning permission, water permits and the National Construction Authority.
- Consider climate risks and greenhouse gas emissions, which are increasingly part of the assessment.
Frequently asked questions
Can construction start while the EIA licence is pending?
No. Starting a project that requires an EIA licence before the licence is issued is an offence and may lead to a stop order.
How long does an EIA take?
It depends on the risk category and complexity. Medium-risk project reports can take a few weeks to a few months, while full EIA studies for large projects may take several months, including the public review period.
How W.O.A. Advocates can help
We advise developers, investors and communities on EIA requirements, NEMA licensing, public participation and environmental disputes before the National Environment Tribunal and the Environment and Land Court. Speak to our environmental law team, and read our guide on Kenya's Climate Change Act.