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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

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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News & Analysis

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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