Introduction
Some time ago, I took a close look at the concept of Energy Justice. In my article , I was critical, arguing that Energy Justice is too operational – a concept, which, although it establishes attractive pillars (knowledge of the four pillars is assumed at this point), often fails to adequately address global power asymmetries, historical responsibilities and colonial continuities. I raised the question of whether Energy Justice needed to be discussed in an Afrocentric way to do justice to the experiences and realities of the continent.[1]
Today, however, I would like to shed light on another side. I aim to demonstrate that the concept can yield productive power when courts translate it into legal developments. This is what has happened in a case from Kenya: Menengai West Stakeholders Forum & Solomon Manyarkir v. NEMA & Sosian Energy Ltd. This case shows that at least one pillar of Energy Justice – namely, Procedural Justice – can make a valuable contribution to developing law and changing climate governance in the interests of marginalised communities.
The Menengai case: Geothermal energy meets civil society
What happened?
Sosian Energy Ltd. was granted a licence to explore geothermal energy in Kenya’s Menengai region. At first glance, this is a green success story: renewable energy, a contribution to the energy transition, a sustainable resource as well as guaranteed emission reductions. However, the project is situated in the heart of an agricultural region with over 160,000 inhabitants who had serious concerns, including noise, vibrations and air pollution.
When the national environmental authority NEMA granted a geothermal prospecting license, allowing Sosian Energy Ltd. to prospect for a potential geothermal plant inside the Menegai Crater, local stakeholders took their case to the National Environment Tribunal (NET). There, they failed. The tribunal confirmed the licence but demanded a subsequent Climate Impact Assessment. The residents were not satisfied with this and appealed to the Environment and Land Court (ELC) in Nakuru. Here, something exciting happened: the court revoked the licence, identified serious deficiencies in the decision-making procedure, and demanded a new, comprehensive ESIA.[2]
The key legal issues
Essentially, there were three major topics:
- Public participation: Were those affected involved in a timely and substantive manner?
- Quality of the ESIA report content: Did it contain basic data on air quality and noise?
- Climate Impact Assessment: Can it be submitted retrospectively, or must it be carried out before approval is granted?
The court ruled:
- Participation was insufficient: scoping meetings before the approval of the Terms of Reference were not sufficient.[3]
- Basic data was missing: this makes the study incomplete.[4]
- Ex ante climate impact assessment is mandatory – not retrospective.[5]
The result: license revoked, new ESIA ordered.
Procedural Justice in Action
Reason for the revocation of the licence: The concept of Energy Justice – in this case in the form of Procedural Justice. Procedural Justice means that those affected from energy sector projects must be involved meaningfully in the decision-making processes.[6] However, one crucial question always remains in this context: what requirements must be met to ensure that the according groups of people are meaningfully involved in decision-making processes in the Kenyan/African context?
The court has developed precisely the following six principles (It is interesting to note here that the court describes these principles as the absolute minimum necessary participation of citizens affected by projects of this nature [7]):
- Agency duty & measured discretion: The responsible government agency or public official must design a participation programme appropriate to the subject considering the number and quality of people who should participate, while retaining considerable discretion over the modalities.[8]
- Innovation, flexibility, effectiveness: Participation mechanisms must be adaptable to subject-matter, culture and logistics; no single formula applies. Courts do not apply a rigid litmus test but judge whether a reasonable and effective opportunity to participate was provided.[9]
- Access to and dissemination of information: Any participation programme must make relevant information available and provide a forum for airing views; information availability is an ongoing state obligation.[10]
- Intentional inclusivity & subsidiarity: Participation need not require everyone’s input, but programmes must be deliberately inclusive and not exclude any stakeholder groups; those most affected should be given greater, more deliberate opportunity to participate (subsidiarity).[11]
- Good-faith consideration of views: Participants have a right to be heard, not a veto. The agency must consider submissions in good faith and not treat consultation as mere tokenism or democratic theatre. [12]
- Supplement, do not supplant, officials’ roles: Public participation is meant to enrich and inform the technical and democratic decision-making of officeholders, not to replace their statutory or expert responsibilities [13]
What stands out in particular is the following: Investors, multinational corporations (MNCs) and all those representing their interests are the stronger negotiating partners and therefore have a duty to provide information. This means that affected civil society actors must be provided with the necessary information to assess the project’s consequences realistically. Purely formal participation is not sufficient. Also noteworthy is the principle of subsidiarity addressed in this ruling, according to which the perspectives of the stakeholder groups particularly impacted should be given correspondingly high weight.
In both ways, especially, by shifting the obligation to provide information to the more powerful, influential party in the decision-making process, the court has contributed to legal development ensuring that existing power imbalances are considered at the operational level.
Regarding the Energy Justice concept and my criticism
Nevertheless, I was not entirely wrong in my assumption that the concept of Energy Justice requires an Afrocentric revision. However, I should tone down my harsh rhetoric at this point. No correction is necessary, but only context-sensitive clarification of specific terms. Or is that already equivalent to a correction? I am not sure.
In any case, one thing is clear to me: the term ‘fair/meaningful participation’ is particularly in need of definition in the African context due to the existing power imbalances between investors, MNCs and populations. The Menengai judgement helps creating a definition and thus subject the concept of Energy Justice, specifically the pillar of Procedural Justice, to an Afrocentric concretisation/correction.
Conclusion: From a theoretical concept to the development of law
I was very critical of the concept of Energy Justice. Not entirely without reason, considering the need to define various terms. Nevertheless, the Menengai case shows me that even the operational dimensions that seemed so insufficient and petty to me can have an enormous impact if applied in a context-sensitive manner. Procedural Justice is not just a theory here, but the key to stopping a massive energy project, protecting human rights and strengthening climate governance.
Yes, Energy Justice is often too operational, too technocratic. It ignores issues of global power structures, neo-colonial dependencies and unequal access to resources. But Menengai shows that operational dimensions can still be powerful if they are taken seriously in legal practice and applied in a context-sensitive way. At first glance, Procedural Justice may seem minor. It is about meetings, protocols, and reports. But at its core, it is about something significant: democracy in energy and climate protection issues. When a court says, ‘Scoping is not enough, you actually have to involve the people’, that is legal development. Then an academic pillar becomes a justiciable standard. Menengai is therefore an exemplary climate litigation case in the Global South, demonstrating that (international) environmental law development does not occur top-down, but rather bottom-up through communities that take legal action and through courts that make courageous decisions. And it shows that Energy Justice may be more than just a technocratic concept after all. In the hands of courts, it can become a tool for developing the law – and thus make a small contribution to the decolonization of African energy sectors.
Examining this judgement was interesting. In future, I will try to discuss more court decisions from the Global South relating to environmental and climate law litigation.
[1] Jean Aristid Banyurwahe ‘Energy Justice: Time for an Afrocentric Perspective’ (African Legal Studies Blog, 8 August 2025) <https://africanlegalstudies.blog/2025/08/08/energy-justice-time-for-an-afrocentric-perspective/> accessed 02 October 2025.
[2] ‘Kenya: Court revokes licence for proposed geothermal plant over inadequate community consultation’ (Business & Human Rights Centre, 20 March 2025) <https://www.business-humanrights.org/en/latest-news/kenya-court-revokes-license-for-proposed-geothermal-plant-over-insufficient-community-consultation/> accessed 02 October 2025.
[3] Menengai West Stakeholders Forum and Solomon Manyarkir and 1 Other v National Environment Management Authority and Sosian Energy Ltd [2024] (Environment and Land Court, Nakuru, ELCLA/E001/2024) [56].
[4] Ibid [69].
[5] Ibid [71].
[6] Godswill Agbaitoro (2024) Implementing energy justice through corporate social responsibility of multinational corporations in energy and extractive industries: old body in new robes, Journal of Energy & Natural Resources Law.
[7] Menengai West Stakeholders Forum v NEMA (n 3) [55].
[8] Ibid [55a].
[9] Ibid [55b].
[10] Ibid [55c].
[11] Ibid [55d].
[12] Ibid [55e].
[13] Ibid [55f].
