The Environment and Land Court in Malindi has declined to stop plans to establish Kenya’s first nuclear power plant, valued at Sh500 billion.
Instead, the dispute has been forwarded to Chief Justice Martha Koome to appoint a bench of judges to address the concerns raised by residents opposing the project.
Justice Evans Makori declined to stop the establishment of the project but recognised that the issues raised by the Kilifi residents were significant and warranted the attention of more than one judicial officer to investigate and reach a determination.
“The current petition raises substantial constitutional and novel issues around the operationalisation of the first nuclear power plant in this Country, its impact on a clean and healthy environment under Article 42 of the Constitution, and the participation of the people of Kenya in making that decision,” said the judge.
Justice Makori stated that the establishment of Kenya's first nuclear plant is being evaluated to determine whether, as a country, we possess the necessary resources, human capacity, and stamina to sustain it, considering the disasters highlighted by the petitioners.
For instance, the judge acknowledged that nuclear power is a form of green energy but questioned its safety, asking how Kenya compares its safety and investment with other green energy sources such as geothermal, solar, or wind, as well as global trends regarding nuclear power and its sustainability.
“These questions will require that Justice Koome appoint an uneven number of ELC judges to address the same,” he said.
The Judge noted that the concerns raised by the petitioners cannot be dismissed as trivial or apathetic; rather, they must be resolved before Kenya develops its first nuclear facility in the country.
According to the Judge, a clear road map has not been provided regarding when the plant will start and when the country expects the first nuclear energy to be on the national grid.
“The plans are at a nascent stage. It is what the main petition will decide because, as I look at it, granting any orders at this stage will mean stopping all operations undertaken by the Nuclear Power Energy Agency (NuPEA). Let's reserve that energy for the main petition,” said the Judge.
Mkoba Ngolo and Zawadi Kalume filed this case last year, seeking to stop the government from continuing with the project.
They sued NuPEA), the Ministry of Energy and the National Environment Management Authority (Nema).
Kilifi County government, Oceans Alive Trust and the Rotary Club of Kilifi have been named as interested parties in the case.
The petitioners want this project stopped until their case is heard and determined, arguing that Kenya has no capacity to deal with a nuclear power plant disaster.
Mr Ngolo and Mr Kalume have in their petition questioned the country’s disaster preparedness capacity, stressing the need for urgent caution and safe implementation of the law in the development of a nuclear power plant, drawing from world-renowned countries with nuclear power plants.
“A nuclear power plant is not your usual project, and as such, any establishment of the same requires strict adherence to the law to protect the public from the whimsical and erratic exercise of unchecked corrupted power misdirecting itself in law,” said the petitioners.
The petitioners have also lamented that the process is shrouded in secrecy, marred with piecemeal collection and dissemination of information and lack of public awareness, with a view of evading necessary and mandatory legal processes.
They want the implementation of the project halted, arguing that allowing NuPEA to establish the nuclear power plant will result in serious negative ramifications to public order, health and safety.
“In the absence of a defined policy and transparent legal framework guiding the identification of a proposed site for establishing a nuclear power plant in Kenya, the government cannot legally proceed to identify potential sites for establishing a nuclear power plant,” said Mr Ngolo.
Additionally, the petitioners have raised concerns that NuPEA's decision to establish the nuclear plant along River Kibe in Kilifi County did not take into account the views and concerns of the local population.
“The law requires that the locals should have a direct involvement in the affairs of their community and the right to influence Government decisions. The constitution guarantees citizens the right to participate in decision-making processes that affect their lives and the environment,” they said.
However, the Attorney General asked the court to dismiss this case, arguing that the petitioners did not exhaust internal mechanisms for appeal or review, nor did they approach the National Environmental Tribunal for recourse before taking the matter to court.
“The Energy and Petroleum Tribunal would have been the appropriate mechanism for appeal or review, which the petitioners should have pursued before seeking redress from the court,” AG said in its court documents.
The AG and the government agencies have emphasised that the decision to establish a Nuclear Power Plant is lawful and has legal backing under the Nuclear Regulatory Act, 2019, which provides a comprehensive framework for regulating the safe, secure, and peaceful utilisation of nuclear technology, including the establishment, operation, and decommissioning of a nuclear power plant.
