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When is Strategic Environmental Assessment (SEA) Considered Necessary?



By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

In several cases, Environmental Impact Assessment (EIA) license has been challenged on the basis that the it was issued before Strategic Environment Assessment as issued. One such case is the recently concluded National Environmental Tribunal (NET) Appeal in Greenbelt Movement & 5 others v National Environmental Management Authority & another; Kenya National Highways Authority (Interested Party), National Environmental Tribunal (NET) Appeal No. 19 of 2020 challenging NEMA approval of the Nairobi Expressway EIA. One of the issues the NET comprising Mohammed Balala (Chairperson), Christine Kipsang (Vice Chairperson), Dr. Kariuki Muigua, PhD (Member), Bahati Mwamuye (Member) and Waithaka Ngaruiya (Member) had to grapple with in making their landmark decision was whether the EIA was irregularly issued for lack of a strategic environmental assessment. The case has brought to the fore the question of when a Strategic Environmental Assessment is necessary whether on its own or as a prerequisite for Environmental Impact Assessment. In determining whether SEA is necessary, one has to look at the provisions of the Environmental Management and Coordination Act, No. 8 of 1999 and Environmental (Impact Assessment and Audit) Regulations, 2003 on SEA as well as the National Guidelines for Strategic Environmental Assessment (SEA) 2012 and case law.

The Environmental Management and Coordination Act in section 57A provides that “All Policies, Plans and Programmes for implementation shall be subject to Strategic Environmental Assessment.” The Act clarifies that for the avoidance of doubt, the plans, programmes and policies are those that are subject to preparation or adoption by an authority at regional, national, county or local level, or which are prepared by an authority for adoption through a legislative procedure by Parliament, Government or if regional, by agreements between the governments or regional authorities, as the case may be and determined by NEMA as likely to have significant effects on the environment. Further, all entities are required to undertake or cause to be undertaken the preparation of strategic environmental assessments at their own expense and submit such assessments to NEMA for approval in accordance with rules and guidelines prescribes by NEMA for in respect of Strategic Environmental Assessments.

Besides EMCA, Rule 42 of Environmental (Impact Assessment and Audit) Regulations, 2003 provides that: “(1) Lead agencies shall in consultation with the Authority subject all proposals for public policy, plans and programmes for environmental implementation to a strategic environmental assessment to determine which ones are the most environmentally friendly and cost effective when implemented individually or in combination with others. (2) The assessment carried out under this regulation shall consider the effect of implementation of alternative policy actions taking into consideration – (a) the use of natural resources; (b) the protection and conservation of biodiversity; (c) human settlement and cultural issues; (d) socio-economic factors; and (e) the protection, conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance. (3) The Government, and all the lead agencies shall in the development of sector or national policy, incorporate principles of strategic environmental assessment.”

The National Guidelines for Strategic Environmental Assessment (SEA) 2012 defines Strategic Environmental Assessment (SEA) as referring to “a range of analytical and participatory approaches that aims to integrate environmental consideration into policies, plans and programmes and evaluate the interlinkages with economic and social considerations. SEA is a family of approaches, which use a variety of tools, rather than a single, fixed and prescriptive approach. This process extends the aims and principles of EIA upstream in the decision-making process, beyond the project level and when major alternatives are still opens (UNEP, 2002). SEA represents a proactive approach to integrating environmental considerations into the higher levels of decision making, consistent with the principles outlined in Agenda 21.”

The principles of SEA include: (a) the sustainable use of natural resources, (b) the enhanced protection and conservation of biodiversity, (c) interlinkage of human settlement and cultural issues, (d) integration of socio-economic and environmental factors, (e) the protection and conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance, and (f) Public and stakeholder engagement. In turn, the benefits of SEA include safeguarding the environmental assets and opportunities upon which all people depend, particularly the poor, and so promote sustainable poverty reduction and development. SEA also helps in improving decision making related to policies, plans and programmes, in improving development outcomes and in strengthening and streamlining project specific EIA.

In order for the SEA process to be influential and to help improve policy-making, planning and decision-taking, it should: (a) Establish clear goals, objectives and targets of the PPP (b) Be integrated with existing policy and planning structures (c) Be flexible, iterative and customized to context (d) Analyze the potential effects and risks of the proposed PPP, and its alternatives, against a framework of sustainability objectives, principles and criteria (e) Provide explicit justification for the selection of preferred options and for the acceptance of significant trade-off (f) Identify environmental and other opportunities and constraints (g) Address the linkages and trade-offs between environmental, social and economic considerations. (h) Involve key stakeholders and encourage public involvement (i) Include an effective, preferably independent, quality assurance system (j) Be transparent throughout the process, and communicate the results (k) Be cost effective – avoid duplication of efforts and encourage synergies (l) Encourage formal reviews of the process after completion, and monitor PPP outputs and (m)Provide opportunities to build capacity for both its undertaking and use.

Screening is undertaken to determine the potential of a PPP to result in significant effects on the environment, hat is, to decide whether or not an SEA is required. Methods and techniques used to screen strategic proposals vary depending on the nature and the objectives of the PPPs, as well as the decision-makers needs. Screening could be influenced by amongst others, the sphere of decision –making involved (e.g. local, national or regional), whether a PPP is being developed or assessed, and the potential impacts associated with development in different sectors (for example water sector, housing sector, energy sector, etc) to which the PPP relate. Given that application of SEA can become a lengthy and expensive procedure if it is not appropriately focused, the SEA process needs to be carefully focused so that it looks only at the key strategic issues and take into account capacity constraints.

There are various methods available for screening, such as the use of formal “triggers” and checklists (that is, using a set of criteria or list of questions as prompts), seeking advice from a competent authority or other expertise, amongst others. These methods are used to indicate whether PPP is likely to have a significant environmental effect (both positive and negative) and a SEA should be carried out where significant effects on the environment are likely. In considering whether or not a SEA should be undertaken, it is necessary to take into account the nature of the strategic proposal and the nature of the environment that would be affected.

It is considered appropriate to carry out a SEA where, amongst others: the PPP is likely to result in significant environmental effects, taking into account the magnitude, duration and spatial extent of effects, the proposed PPP is likely to be politically or publicly contentious; the cumulative nature of the effects (i.e. the additive and synergistic effects) are likely to be significant; there are likely to be trans-boundary effects, that is, it is likely to affect other municipalities, counties, regions and countries). Further, SEA is needed where the level of confidence in predicting effects of the proposed PPP are low, there are inherent uncertainties and/or important gaps in information in predicting effects, and/or the PPP is unprecedented; risks to health, safety and/or the integrity of social or ecological systems are considered to be high; social and/or ecological systems have low resilience and high vulnerability to disturbance or impact (for example poor communities, sensitive ecosystems); and the existing levels of environmental quality are close to defined limits of acceptable change.

SEA is also considered appropriate where the PPP is likely to have a negative impact on unique, special or highly valued natural or cultural elements like threatened biodiversity, sacred areas and recognized local, county, national or international conservation or protection status, for example, nature reserve, heritage sites and Ramsar sites. SEA is also recommended where a PPP is likely to result in major changes in actions, behaviours or decisions by individuals, businesses, NGOs or government, that could lead to: the stimulation of development of infrastructure or other changes in urban or rural land use; an increase in the transformation and development of natural habitat or areas of nature conservation importance: major changes in the pattern of settlement, land occupation and/or demographics in an area: major changes in the development or use of technology, that could have negative implications for health and/or safety: the introduction of alien and potentially invasive organisms; changes in society’s consumption of energy and in particular fossil fuels, and therefore, in emissions of carbon dioxide and other greenhouse gases; and changes in the rate of society’s consumption of, and/or demand on natural resources, including water.

*This article is part of the series on Principles of Natural Resources Management in Kenya extracted from Legal Aspects of Strategic Environmental Assessment and Environmental Management by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2022.



Environmental Management and Coordination Act, No. 8 of 1999;

Environmental (Impact Assessment and Audit) Regulations, 2003

Greenbelt Movement & 5 others v National Environmental Management Authority & another; Kenya National Highways Authority (Interested Party), National Environmental Tribunal (NET) Appeal No. 19 of 2020.

Muigua, K., Legal Aspects of Strategic Environmental Assessment and Environmental Management; Available at: (accessed on 23/02/2022).

National Guidelines for Strategic Environmental Assessment (SEA) 2012 and case law.

News & Analysis

Former KCB Company Secretary Sues Over Unlawful Dismissal




Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants  further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands.  He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.

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Court of Appeal Upholds Eviction of Radcliffes from Karen Land




Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.

Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:

“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”

On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.

The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.

The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.

At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.

The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.

As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.

Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1




The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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