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Media Advisory: Court Directions Expected in Sosian Energy Appeal Case 

By Natural Justice

Nairobi, 27 May 2024: The Nakuru Environmental and Land Court in Kenya is set to provide directions on an appeal launched by Natural Justice against a finding in the National Environment Tribunal which upheld a license provided to Sosian Energy Limited that allows the company to explore and develop a geothermal energy plant in the Menengai area.  

In the Tribunal, Natural Justice, represented by Katiba Institute, acted on behalf of Menengai West Stakeholders Forum who contested the Environmental Impact Assessment (EIA) license issued by the Kenyan National Environmental Management Authority (NEMA) to Sosian Energy Limited. However, the Tribunal did not find in favour of the community. 

Following this unsatisfactory decision in the Tribunal, an appeal was launched in the Nakuru Environmental and Land Court. On the 28 May 2024, Natural Justice will attend court to be provided with the timelines for filing submissions and may potentially be provided with a judgment date.  

Background 

Sosian Energy Limited holds an exploration license to explore, extract and develop geothermal steam for energy production on 9.8Km2 of private land in the Menengai Area. Any geothermal energy produced would be sold to Kenya Power Lighting and Company. On 12 February 2021, NEMA granted a license for the exploratory activities, including drilling thermal gradient wells to a depth of 200m, drilling water wells for exploration, and exploration drilling to a depth of 2.7Km.  

Residents of the Menengai Area opposed the license, citing serious flaws in the public participation process that did not conform to the Environmental Impact (Assessment and Audit) Regulations, 2003. Locals, who have experienced the negative effects of geothermal activity, criticize the Environmental and Social Impact Assessment (ESIA) Report, claiming it insufficiently focused on the region’s detrimental effects on air quality and noise. Based on prior experiences, they express concerns about the potential necessity for resettling residents living close to the proposed geothermal well due to noise and air pollution.  

In the Tribunal 

In the Tribunal, Natural Justice focused specifically on whether the EIA process and subsequent report met the requirements of law, arguing that the process of public participation was flawed, and the impacts of the project inadequately assessed. The Tribunal was requested to hear questions on the EIA process and determine the following: 

  1. Whether the expert who conducted the EIA had the correct qualifications.  
  1. Whether the exploratory drilling project by Sosian Energy falls within the bounds of a Social Environmental Assessment (SEA) which ought to have been completed. 
  1. Whether there was adequate public participation and consultation with impacted communities as required in the Environmental Management and Coordination Act (EMCA). 
  1. Whether the EIA Report sufficiently assesses negative impacts arising from the proposed project. 
  1. Whether the mitigation measures were adequate and sufficient to mitigate the negative impacts identified in the EIA. 

The Tribunal’s finding 

The Tribunal’s judgment was handed down on the 5 December 2023, nearly 18 months after the conclusion of the hearings. The Tribunal did not rule in favour of the community. Crucial issues presented for consideration were not addressed.  

Although the judgment calls for a climate change impact assessment within 24 months, Sosian Energy would have completed their exploration activities. This decision was a setback for the Menengai community members who endure the consequences of environmental damage.  

The matter has been taken on appeal.  

Key Issues in the Appeal 

  1. Inadequate Public Participation: The court is alleged to have erred in law and fact by finding that there was adequate public participation. 
  1. Invalid ESIA Study Report: The validity of the ESIA study report, which a lead EIA expert conducted without a valid license, was not adequately addressed. 
  1. Adequacy of the ESIA Study Report: The failure to address whether the ESIA study report was adequate. 
  1. EIA License Conditions: The court erroneously found that the EIA license conditions adequately addressed the appellants’ concerns. 
  1. Climate Impact Assessment: The erroneous requirement for a climate impact assessment without making it a condition for the project activity. 

Remedies Sought 

Menengai West Stakeholders Forum are seeking to have the Court set aside the Tribunal’s Decision. They seek to have the ESIA study report declared fatally defective for failing to meet the Environmental (Impact Assessment and Audit) Regulations, 2003 requirements. They further request that the Court declare that NEMA’s decision to grant Sosian Energy Limited an EIA license was based on a procedurally and substantively defective ESIA study report.  

“We are dedicated to ensuring that the voices of the Menengai community are heard and that environmental laws are upheld. The appeal hearing is a crucial step, and its outcome will be significant not only for this community but also for similar projects in the future” 

Dale Onyango- Advocate of the High Court of Kenya, Natural Justice.  

ENDS  

Notes to editors:  

  • Natural Justice will be publishing a post-hearing Press Release after the verdict is delivered.  
  • The project-affected communities organized under Menengai West Stakeholders Forum (MWESFO), a registered community-based organization representing communities in Menengai West and Soin Wards, are the Appellants in this case.  
  • Sosian Energy Limited, an independent power producer contracted by Geothermal Development Cooperation (GDC) in 2014 to generate 35MW of electricity under phase 1 of what is referred to as “Menegai Geothermal Project”, is the Respondent in this case.  
  • The National Environment Management Authority (NEMA) is also a Respondent in this case.  
  • Lawyers for the Appellants are Katiba Institute and Natural Justice.  
  • Read more about the Sosian case on our website in the previous PR   

For media inquiries, please contact:  

Salome Muiruri, Natural Justice – East Africa Hub, Communications Officer  
salome@naturaljustice.org, +245721480153  

27 May 2024

Theme

Litigation

Programme

Climate Change, Defending Rights, Governance of Lands and Natural Resources, environmental impacts

Country

Kenya

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