For developers undertaking infrastructure projects under Kenya’s public private partnership (PPP) framework, public participation is no longer a procedural step to be managed at the periphery. It is increasingly determinative of whether projects secure legitimacy, withstand judicial scrutiny, and ultimately proceed to implementation. Although the PPP Act places the public participation mandate on contracting authorities, to safeguard their projects, sponsors should be actively involved in designing and executing engagement programmes to safeguard their projects and foster legitimacy and community buy-in, particularly in the context of PPPs procured through a privately initiated proposal (PIP).
The importance of public participation in infrastructure and energy projects
- Public participation is a constitutional and statutory requirement
Article 10 of the Constitution establishes public participation as a national value, and the PPP Act obliges contracting authorities to ensure meaningful engagement at each stage of the project cycle. The National Treasury has published a circular detailing guidelines for public disclosure on privately initiated PPPs, which requires that the private proponent develops a comprehensive plan for public participation and stakeholder outreach during the project development phase.
Developers who disregard this obligation expose their projects to legal challenge, as evidenced by the now cancelled Adani Jomo Kenyatta International Airport privately initiated PPP, where failure to provide adequate information to stakeholders generated significant public opposition, public interest litigation and suspension of the project by the High Court.
- Public participation is critical to project legitimacy and community acceptance
Communities that feel excluded or disregarded frequently resort to opposition, whether through litigation, political mobilisation, or direct action. Conversely, developers who secure early and genuine buy-in typically face fewer operational disruptions and benefit from stronger local support. A strong example is the Kipeto Wind Project, which engaged extensively with stakeholders and, in response to community feedback, shifted from an initial plan to purchase land outright to adopting lease agreements with local landowners.
This approach not only secured community acceptance but also ensured long-term support for the project. During the operational phase of its project, Kipeto has continued to prioritise the local community by establishing a community trust that receives 5% of annual profits from operations. Managed by community representatives, the trust has the autonomy to channel funds into local priorities such as schools, hospitals, and clean water supply, further reinforcing long-term community support for the project.
- Effective participation promotes transparency and mitigates corruption risk.
By disclosing project objectives, costs, risks, and anticipated benefits, developers reduce the perception of secrecy that has plagued several high-profile PPPs. Transparency strengthens trust with host communities, counterparties, and financiers.
- Early and sustained consultation allows for timely identification and resolution of issues.
Social and environmental risks, if surfaced late, can derail projects or trigger costly redesign. The collapse of the Kinangop Wind Project, where community resistance escalated into protests and landholders withdrew consent, illustrates how unresolved grievances can spur mistrust and derail projects entirely.
Guiding principles for developers.
Kenyan jurisprudence provides some guidance on how project developers should approach public participation. These principles are also mirrored in the frameworks set out by the World Bank’s Community Engagement Guide (WB Guide), and the United Nations Economic Commission for Europe’s (UNECE) People-first PPP principles (UNECE Principles). The following practices are essential:
- Engage early and continuously
Engagement must begin at prefeasibility stage and continue across design, procurement, construction, and operations. The WB Guide stresses that consultation must not be delayed until procurement is complete, as early involvement prevents conflict and improves design. In Kenya, the Olkaria geothermal projects illustrate how sustained engagement, even in the context of complex resettlement, can produce durable relationships and reduce opposition.
Although the resettlement process drew claims of displacement and inadequate compensation, mediation between the Kenya Electricity Generating Company PLC (KenGen), lenders and the Maasai community produced a settlement that addressed community concerns. The process showed that sustained dialogue can stabilise delivery and secure a social licence.
- Make public participation meaningful and not just a formality
Engagement must go beyond symbolic meetings or perfunctory notices. It requires a genuine opportunity for stakeholders to be heard and for their input to be considered. In Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others [2015] eKLR, the court emphasised that affected communities must be given a reasonable opportunity to understand issues and contribute before decisions are finalised.
In Legal Advice Centre & 2 others v County Government of Mombasa & 4 others [2018] KECA 381 (KLR), the Court of Appeal affirmed that public participation must be genuine rather than perfunctory and should be assessed on a case-by-case basis. It upheld the County’s approach, which involved tenant meetings, press briefings, questionnaires and a dedicated feedback department, holding that the choice of engagement method rests with the authority as long as it ensures broad and effective reach.
- Disclose adequate information in advance
Communities cannot contribute meaningfully without access to relevant information, including feasibility studies, environmental and social impact assessments, resettlement plans, and any material design details. Developers must therefore ensure they publish key project documents at each stage in accessible formats. In its April 2025 Circular, the National Treasury set out the reporting responsibilities of contracting authorities at different phases of PPP projects. The disclosures must be made on the contracting authority’s website or digital platforms as well as nationwide newspapers, and are summarised below:
| Phase | Disclosure Requirement | Disclosure Timeline |
|
Receipt of PIP |
Publish proponent name, project description, cost, affected stakeholders, and invite competing proposals | Within 14 days |
| Proposal approval | Notify the public that the project has progressed to development phase | Within 14 days of PPP Committee approval |
| Development approval | Publish feasibility studies and evaluation criteria used by the PPP Committee | Within 30 days after PPP Committee approval to proceed to negotiation stage |
| Execution of agreement | Publish results of the PIP process together with key project information, including project scope and duration, roles of public and private parties, financial structure (payment terms and revenue sharing), risk allocation, performance metrics/penalties, and local content. | Immediately after execution |
In Sikalieh (Chairman of Karen Langata District Association) v Kenya Railways Corporation & 5 Others; NEMA & Another (Environment & Land Petition E028 of 2024) [2024] KEELC 7526 (KLR), petitioners alleged that the Riruta–Ngong railway commenced without disclosure of feasibility studies, environmental impact assessment (EIA) reports, or resettlement plans. Although the project was not cancelled, the court reaffirmed that adequacy of participation is tied to whether affected parties had sufficient information to participate effectively.
This requirement was reiterated in Kaps Parking Limited & another v County Government of Nairobi & another [2021] KEHC 5819 (KLR) where the court outlined four parameters for effective participation: the public must have reasonable access to information, be adequately sensitised on its content, be given sufficient time to review it, and have a clear and structured means of providing feedback.
- Ensure deliberate engagement of the most affected
Participation must be broad-based and diverse, but courts have stressed that those most affected by a project must be given a larger and more deliberate voice. The UNECE Principles recommend mapping all stakeholders and deliberately prioritising the most affected, including vulnerable groups. Mui Coal Basin confirmed that intentional exclusion of bona fide stakeholders renders the process unlawful. In Sikalieh, the court gave its nod to a public participation programme that included stakeholder meetings every 1.6 kilometres along the route, targeted sessions for Karen business owners and residents, and engagement with schools, local leaders, and business groups.
- Customise public participation structure to each project
There is no single formula for adequate participation. The approach must be adapted to the subject matter, culture, and logistical realities. Kenyan courts have drawn on a South African Constitutional Court authority (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)) to stress that what matters is reasonableness in the circumstances, not a rigid litmus test. In Mui Coal Basin, the High Court indicated that a public participation programme should be tailored to the specific subject matter of the project.
As the decision in Sikalieh explained, prior consultations may take different forms, and not every directly affected group has an unconditional right to dictate the modalities of participation. UNECE Principles recommend a structured engagement plan with regular meetings, outreach, budget allocation, and oversight by an independent monitoring committee. For developers, this means combining public “barazas” with targeted focus groups, surveys, and culturally appropriate forums.
- Demonstrate responsiveness to feedback
Engagement is not effective if comments are ignored. Authorities and developers are required to take views into account in good faith and to provide reasons where suggestions are not adopted. In Sikalieh, the court approved the process because respondents recorded stakeholder comments and justified why certain suggestions (such as rerouting through Kibiku Forest) could not be implemented. This record was decisive in persuading the court that the process had been adequate. The WB Guide and UNECE Principles both emphasise tracking issues, establishing grievance mechanisms, and reporting back to communities on how issues were resolved to maintain trust.
- Public participation supports but does not supplant decision-making
Kenyan courts have clarified that consultation does not confer veto power to the public. The role of public participation is to inform and improve decision-making, not to displace it. In Mui Coal Basin, the Court held that the process should “support, not supplant decision-making.” Similarly, in Sikalieh, drawing on the HRC’s determination in Marshall vs Canada (Communication No. 205/1986), the Court reiterated that while directly affected groups must be consulted, they do not have an unconditional right to dictate outcomes. The WB Guide advises managing expectations by clarifying at the outset the scope and limits of public influence, while UNECE Principles cautions that rights-holders in a community should shape but not dictate outcomes.
- Document evidence of public participation
Throughout the public participation process, it is also important to document all engagement activities with attendance lists, records of comments, and responses provided. This will facilitate response to any claims or challenges that may arise subsequently regarding the public participation process. In Sikalieh, the court found participation sufficient where the record included evidence of stakeholder meetings and questionnaires, attendance lists capturing names and contact details of participants, targeted consultations with local business owners and residents, and outreach held along the project route at regular intervals. The court noted that notices inviting public comments were published in the press.
Conclusion
For developers, public participation is both a legal obligation and a practical safeguard. Projects that approach it as a perfunctory exercise, risk litigation, suspension, and reputational damage. Those that embed transparent, inclusive, and responsive engagement strategies from the outset enhance bankability, reduce execution risk, and secure the social licence required for long-term operation.
