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When National Environment Tribunal Saved the Nairobi Expressway



By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021*

One of the landmark cases recently handled by the National Environment Tribunal (NET)comprising chairperson Mohammed Balala, Vice Chairperson Christine Kipsang and members Bahati Mwamuye, Waithaka Ngaruiya and Dr. Kariuki Muigua, PhD was the appeal by lobby groups led by the Greenbelt Movement seeking to stop the construction of the Nairobi expressway by cancelling its EIA License issued by Nema to the contractor China Road and Bridge Corporation an EIA licence. NET dismissed the appeal against Environmental Impact Assessment(EIA) License issued to the contractor for the construction of Nairobi Express Highway where the appellants sought to set aside the EIA license issued by NEMA in respect of Nairobi Express Highway. The appellants had also sought an order that NEMA require Strategic Environmental Assessment (SEA) to be conducted and Resettlement Action Plan to be developed. They also sought that after new SEA and Resettlement Action Plan is carried out, a new EIA be carried out and restoration order be issued to require the Contractor to restore the damages to the environment so far.

The grounds cited by the Appellant for the appeal included that NEMA approved the Terms of Reference (TORs) without conducting scoping exercise contrary to EIA Regulations. Further, it was alleged that NEMA issued an EIA license for the project before subjecting the project to Strategic Environmental Assessment (SEA) contrary to Section 57A of EMCA and Regulation 42 of the EIA Regulations. The Appellants also argued that NEMA issued the EIA Licence despite the fact that the Environmental and Social Impact Assessment (ESIA) process had failed to meet the threshold set out for public participation under Regulation 17(2) of the Regulations and the threshold of information and analysis required under the EIA Regulations and could not possibly form the basis for the grant of an EIA Licence.

In response, Respondents opposed Appeal on grounds, among others, that NEMA (the 1st Respondent) took into account the public consultations as well as the stakeholders’ views during the EIA process, but it was not legally bound by those views but was instead obligated to undertake its own technical and factual assessment based on various principles such as adequacy of mitigation measures, and adequacy of risk assessment and management among others. Further, the 1st Respondent wrote to the Contractor seeking clarification on a number of issues such as the extent to which Uhuru Park would be acquired and the resettlement action plan for all project affected persons; which queries were responded to vide a letter dated 30th March 2020 clarifying that no land  was going to be acquired from Uhuru Park, stated that a comprehensive resettlement action plan for all project affected persons and properties was ongoing, and it provided a detailed utility relocation plan for the affected among other clarifications.

As for SEA, the 1st Respondent stated that the same only applies to plans, programs and policies and not to specific projects as is the case in this Appeal. In a nutshell, the 1st Respondent prayed for the dismissal of the Appeal in its totality. The project’s detailed terms of reference do comprehensively identify the potential impacts on the physical and biological environment, the existing infrastructure, land based livelihoods including land ownership, socio-economic considerations among other considerations of what would be impacted by the expressway project. On SEA, the 2nd Respondent (the Contractor) stated that it is not a mandatory requirement prior to the granting of an EIA licence.

On public participation, the 2nd Respondent stated that it took all reasonable steps to ensure that public participation was effective by placing posters in strategic places, publishing advertisements in newspapers with nationwide circulation, broadcasting the advertisement on KBC radio and held at least 8 meetings on various dates in separate locations within Nairobi. It was also argued that the project is founded on the social justice principle of sustainable development not only for the current generation and future generations and is a solution to the serious traffic congestion on the AS road which has caused serious delays for both public and private road users and the resultant pollution, and the reduction in the productive time of the said users.

In its decision, the Tribunal noted that it derives its powers from section 129 of EMCA. The powers of the Tribunal are well set out under section 129 (3) of the Act which provides that “Upon any appeal, the Tribunal may confirm, set aside or vary the order or decision in quest ion; exercise any of the powers which could have been exercised by the authority in the proceedings in connection with which the appeal is brought; or make such other order, including orders to enhance the principles of sustainable development and an order f or costs, as it ma y deem just.“ The Tribunal added that it had considered the Appeal, the evidence presented by the parties and perused the voluminous bundles of documents presented by the parties.

In its finding, the Tribunal found that the project proponent largely complied with the stringent requirements of EMCA and the EIA Regulations for the licensing of the project   but did not carry out a climate change analysis. The Tribunal reached the following conclusion:

“117. The Tribunal is faced with the monument al task to make a decision on whether to cancel the EIA Licence in its entirety due to the stated deficiencies or step into the shoes of the 1st Respondent and make orders for compliance on the aspects that we find being incomplete. The effects of cancellation of the licence would be to cause a repeat of the process that has been carried out including public participation and the ensuing processes. We are minded to consider that colossal public funds are incurred during such processes and the repeat of that process does not serve to offer any solution on the environmental impacts involved in the project especially on aspect s of the EIA process that have not been impeached.

  1. Considering the nature of the project and noting that the project proponent has largely complied with the requirements for the grant of the EIA Licence, the Tribunal declines to cancel the licence but we shall issue order s under sections129 (3) (c) of EMCA to ensure compliance with the requirement for climate change analysis for the disputed project.
  2. For the foregoing reasons the Tribunal makes the following orders:

(a) The Appellant’s appeal is hereby dismissed;

(b) The Tribunal invokes its powers under section 129(3) (c) of EMCA to make orders for the preservation of the environment and for sustainable development and hereby orders the 2nd Respondent to carry out and complete a climate change analysis for the project within eighteen (18) months from the date of this judgment;

(c) The 1st Respondent shall ensure compliance with order (b) above and the Climate Change Act, Act 11 of 2016; and

(d) Each party shall bear their own costs”

In essence, by ordering China Road and Bridge Corporation to carry out and complete a climate change analysis for the project within 18 months from the date of their judgement, the National Environmental Tribunal (NET) has in effect put climate change analysis to the forefront. Climate change is defined in section 2 of the Climate Change Act to mean, “a change in the climate system which is caused by significant changes in the concentration of greenhouse gases as a consequence of human activities and which is in addition to natural climate change that has been observed during a considerable period.” Section 20 of the Climate Change Act provides that, “The Authority shall integrate climate risk and vulnerability assessment into all forms of assessment and for that purpose liaise with relevant lead agencies for their technical advice.”

The Tribunal held that the road being a project to ease congestion caused by motor vehicles using the AB corridor as well as the vehicles within the larger downtown Nairobi does require an analysis of the impact of the project on the climate as motor vehicles are known transmitters of greenhouse gases. It added that although the ESIA report states that the Expressway shall pass through two distinct climatic zones being the Central Highlands/Rift Valley which includes the Nairobi County’s JKIA-James Gichuru Section; and Eastern Kenya which includes the Machakos County’s Mlolongo-JKIA Section, the report fails to do any analysis of the impacts created by the emissions of greenhouse gases on the sections affected by the Expressway. The Tribunal thus concluded: “We find that climate change analysis was necessary prior to the issuance of the EIA Licence.”

*This article is an extract from published article “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. 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. 


Muigua, K., “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Available at: (accessed 24 June 2022).

News & Analysis

Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?




The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services  is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture,  business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other.  Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area).  The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business  branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

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News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration




H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)




By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.


PCA Website: (accessed on 25th May 2023).

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