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National Environmental Tribunal's judgment

"SaveLamu & ors v. NEMA & Amu Power Company Limited"

Accordingly, for the reasons stated above, we allow the appeal and set aside the decision of the 1st Respondent to issue the Environmental Impact Assessment Licence No. NEMA/ESIA /PSL/3798 dated 7th September 2016 to the 2nd Respondent. In furtherance of our powers under section 129(3) (b) and (c) we order the 2nd Respondent, should it still wish to pursue the construction and operation of the project, to undertake a fresh EIA study following the terms of reference already formulated in January 2016, and in compliance with the Director - general's directive of 26th October 2015, as well as adhere to each step of the requirements of the EIA Regulations on EIA Studies. The fresh EIA study, if undertaken, is to, inter alia, include all approved and legible detailed architectural and engineering plans for the plant and its ancillary facilities (such as the coal storage and handling facility and the ash pit with its location in relation to the sea shore), consideration of the Climate Change Act 2016, the Energy Act 2019 and the Natural Resources (Classes of Transactions subject to Ratification) Act 2016 in so far as the project will utilise sea water for the plant and/ or if applicable.

Subject to these steps being undertaken, a fresh EIA study report is to be prepared and presented to the 1st Respondent. The 1st Respondent is directed to comply with the provisions of regulations 17 and 21, engage with the lead agencies and the public, in the manner and strict timelines provided for under the said law. The 1st Respondent is to share its memorandum of reasons for reaching its decision whether for or against the project with the relevant parties and publish its decision on the grant or refusal to issue an EIA Licence accompanied with a summary of its reasons within 7 days of its decision. Such publication should be in a newspaper with nationwide circulation. These extraordinary measures are necessary to ensure sufficient access to information by the public on a project that will be the first of its kind in Kenya and the East African region.