Environmental Impact Assessment Is a Legal Precondition, Not a Government Courtesy: Why NEMA Must Enforce Section 58 Strictly

Section 58 States a Prohibition

Section 58(1) of the Environmental Management and Co-ordination Act, No. 8 of 1999 ("EMCA") provides that no person shall implement a project likely to have a significant impact on the environment unless the proponent has submitted an Environmental Impact Assessment ("EIA") study report to the National Environment Management Authority ("NEMA") and received a licence.

The word "shall" in section 58(1) is mandatory. It creates a prohibition that applies before a project begins. It does not create a requirement to comply within a reasonable time after starting, or to catch up if enforcement is delayed. A project that begins without a licence is, from its first day of operation, in breach of section 58(1).

The consequences are set out in section 145 of EMCA. A person who contravenes any provision of EMCA commits an offence and is liable on conviction to a fine or imprisonment. Section 145 does not distinguish between persons who never applied and persons whose application is pending. Both are in breach.

The Enforcement Gap Is Not a Legal Gap

NEMA has, for practical reasons, developed a practice of accepting retrospective EIA licence applications, allowing projects that are already under construction or even operational to apply for a licence after the fact. Courts have sometimes approved this practice on the basis that it is pragmatic. The Court of Appeal in NEMA v Save Lamu and Others, Civil Appeal No. 119 of 2015 examined a related question, but the precise issue of retrospective licensing was not conclusively resolved.

The practice of retrospective licensing is problematic for at least two reasons. First, an EIA licence is supposed to inform the decision whether to permit a project, not simply document what has already been built. Once a project is built, the EIA process cannot serve its primary function of identifying and mitigating adverse environmental impacts before they occur. The procedural requirement is designed to front-load environmental scrutiny. Allowing retrospective applications defeats the mechanism entirely.

Second, the practice creates a moral hazard. Developers who proceed without an EIA licence know that if they complete the project quickly enough, enforcement will be directed at regularisation rather than cessation. This is especially acute in infrastructure and urban development, where construction moves faster than NEMA's inspection processes.

What the Constitution Demands

Article 42 of the Constitution of Kenya 2010 provides every person with the right to a clean and healthy environment. Article 69(1)(a) imposes on the State the obligation to ensure sustainable exploitation of natural resources. Article 70 provides that any person may file a petition in a court claiming that a right under Article 42 has been or is likely to be violated. Article 70(2) enables courts to make any order necessary to prevent, stop, or discontinue any act or omission that is harmful to the environment.

A developer who proceeds without an EIA licence is not only in breach of section 58 of EMCA. That developer is also implementing a project that may violate the Article 42 right of neighbouring communities, downstream populations, and users of shared environmental resources. Courts entertaining Article 70 petitions are not limited to checking whether NEMA has issued a licence. They can independently assess whether the Article 42 right is threatened and order cessation of construction if the evidence supports it.

The Appropriate Judicial Response

Courts should hold that a project implemented in breach of section 58(1) of EMCA cannot be lawfully continued unless and until an EIA licence is obtained, regardless of the stage of construction. If NEMA has taken no enforcement action, that failure is itself reviewable under judicial review principles, and an interested person can seek an order directing NEMA to act. If NEMA has accepted a retrospective application, courts should scrutinise whether the retrospective process met the substantive requirements of the EIA Regulations, 2003, including adequate public participation under Regulation 17.

Public participation in the EIA process under Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, Legal Notice No. 101 of 2003 is not a box-ticking exercise. The High Court has repeatedly held that meaningful participation requires adequate notice, genuine opportunity to contribute, and a demonstrable obligation on the proponent to consider and respond to issues raised. A retrospective EIA conducted while a project is already complete cannot credibly offer any of those things to affected communities.

NEMA has the tools to enforce section 58 strictly. The question is whether it has the will to use them, and whether courts will back that enforcement when it is challenged. The answer to both questions should be yes.