NEMA Environmental Impact Assessment in Kenya: EIA Licence Requirements and Process

An EIA licence in Kenya is the National Environment Management Authority (NEMA) approval that a proponent must obtain before starting any project listed in the Second Schedule to the Environmental Management and Co-ordination Act (EMCA). Starting without the right documents is a criminal offence, and an unlicensed project can be stopped. This guide explains which projects need an environmental impact assessment, the statutory steps, the public participation window, how a licence can be revoked, and the penalties.

Which Projects Need an EIA Licence

Section 58(1) of EMCA requires a project proponent, before financing, commencing, proceeding with or carrying out any undertaking specified in the Second Schedule, to submit a project report to NEMA in the prescribed form with the prescribed fee. This applies notwithstanding any approval, permit or licence granted under the Act or any other law. The same duty extends to a proponent who causes another person to carry out the project, so a developer cannot avoid it by contracting out the works.

Under section 58(2), the proponent of a Second Schedule project must undertake a full environmental impact assessment study and submit the study report to NEMA before being issued with a licence. The proviso allows NEMA to direct that a proponent forgo the full study report in certain cases, which is the basis for decisions made on the project report alone. The Cabinet Secretary may amend the Second Schedule by Gazette notice, on NEMA’s advice (section 58(4)), so check the current schedule rather than a list copied from an older guide.

Who Prepares the Study

Section 58(5) provides that environmental impact assessment studies and reports must be conducted and prepared by individual experts or firms of experts authorised by NEMA, and NEMA keeps a register of those experts. A study prepared by a person who is not on the register is at risk of rejection, so verify your consultant’s current registration before you engage them.

The Statutory Steps

Project report and study report

The first filing is the project report under section 58(1). NEMA may decide on it whether a full study is needed. Where a full study is required, the study report is submitted in the prescribed form with the prescribed fee under section 58(3).

Publication and public comment

On receiving a study report, section 59(1) requires NEMA to publish a notice in the Gazette, in at least two newspapers circulating in the area of the project, and over the radio. The notice must summarise the project, give the place where it will be carried out, say where the report may be inspected, and set a time limit of not more than sixty days for oral or written comments. Under section 59(2), NEMA may extend that period on application by any person who needs a reasonable opportunity to comment. Proponents should plan their timelines around that comment window and the review that follows.

Sections 60 and 61 bring in comments from lead agencies and the Technical Advisory Committee on Environmental Impact Assessment, and section 62 allows NEMA to require a further assessment.

Issue of the licence

Under section 63, NEMA may issue an EIA licence once it is satisfied of the adequacy of the study, evaluation or review report. The licence is issued on terms and conditions appropriate to facilitate sustainable development and sound environmental management. Section 65 deals with transfer of a licence and section 64 allows NEMA to require a fresh report after a licence is issued.

Licence Conditions, Audit and Revocation

Section 68 makes NEMA or its designated agents responsible for environmental audit of activities likely to have a significant effect on the environment. An environmental inspector may enter land or premises to check how far operations conform to the statements in the study report. The owner or operator of the project must keep accurate records and make annual reports to NEMA describing how far the project conforms to the study report.

Section 67 allows NEMA to cancel, revoke or suspend a licence where the licensee contravenes its terms. A suspension may not exceed twenty-four months, and NEMA must give the licensee written reasons. A licence holder who receives a notice should respond within the period set in it and document corrective action.

Penalties

Section 138 makes it an offence to fail to submit a project report as section 58 requires, to fail to prepare an environmental impact assessment report in accordance with the Act or its regulations, or to fraudulently make false statements in an EIA report. On conviction the penalty is imprisonment of up to twenty-four months, a fine of up to KES 2 million, or both. Section 139 separately penalises failure to keep required records or falsifying them. Directors and officers of companies should note that section 145 addresses offences by bodies corporate.

Strategic Environmental Assessment

Section 57A provides that all policies, plans and programmes for implementation are subject to Strategic Environmental Assessment. This covers those prepared or adopted by an authority at regional, national, county or local level, and is separate from the project-level EIA licence. A developer working under a county or national plan should ask whether the plan itself has been through that process.

Practical Timeline Planning

Build the licensing steps into your project programme from day one: engage a registered expert, prepare the study, allow for the public comment window, and leave time for NEMA’s review and any further assessment. Financing documents should make an EIA licence a condition precedent, because section 58(1) applies even to a person who finances a project that requires one.