https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5060

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC PETITION E012 OF 2026** EAST AFRICA WILD LIFE SOCIETY [EAWLS] …………………………………………..…….……….PETITIONER **VERSUS** KENYA FOREST SERVICE……………………...…….…1ST RESPONDENT KENYA WILDLIFE SERVICE ……………………….....2ND RESPONDENT NATIONAL LAND COMMISSION ………………………3RD RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY [NEMA]………………………………...…..4TH RESPONDENT CABINET SECRETARY, MINISTRY OF ENVIRONMENT, CLIMATE CHANGE AND FORESTRY …………………5TH RESPONDENT COUNTY GOVERNMENT OF MERU………………….6TH RESPONDENT THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA……………………………..……..7TH RESPONDENT **AND** KATIBA INSTITUTE …………………………...…1ST INTERESTED PARTY LAW SOCIETY OF KENYA……………..……….2ND INTERESTED PARTY RULING 1. Before me is the Notice of Motion Application dated the 26.06.2026, brought pursuant to the provisions of **Articles 1, 2, 3, 10, 20 [3], 21, 22, 23, 42, 47, 67, 69, 70, 72, 162 [2] , 232 [1] , 258 and 259 of the Constitution, 2010; Rules 4, 23 and 34 of the Constitution of Kenya [Protection of Rights and fundamental Freedoms] Practice and Procedure Rules 2013;** and all the enabling provisions of the law; and wherein the petitioner applicant [herein after referred to as the applicant] has sought various reliefs. 2. The reliefs sought *vide* the application are: 3. …………………………………………………..……..Spent 4. …………………………………………………………Spent 5. That pending the hearing and determination of this petition, a conservatory order does issue restraining the respondents whether themselves, their agents, officers or any persons acting under their authority, from initiating and/or continuing the setting up, implementation, establishing operating, approving or permitting the construction and/or any infrastructure development within the Upper Imenti Forest Reserve. 6. That pending the hearing and hearing and determination of this petition, a conservatory order does issue restraining the respondents whether by themselves, their agents, officers or any other persons acting under their authority, from degazetting and or accessing any part of the Upper Imenti Forest for development, operation and constructing of a state a lodge, airstrip/airport and gold course. 7. That pending the hearing and determination of this petition, a conservatory order does issue restraining the respondents whether by themselves, their agents, officers or any persons acting under their authority from allocating, surveying, licensing, clearing, fencing, construction, or undertaken any activity relating to the construction of the proposed state lodge, airstrip/airport and golf or any other way within the Upper Imenti forest Reserve. 8. The application is premised on various grounds. The grounds are: The Upper Imenti Forest is part of the Mount Kenya Forest; the forest is a protected ecosystem located within the County of Meru; the forest is duly gazetted; the forest is under the management and conservation of the 1st and 2nd respondents; the forest is equally a gazetted UNESCO World Heritage Site; and the forest is a major water catchment area /tower. 9. Additionally, it has been contended thus: The forest is also home to assorted and endangered wildlife; the forest is a significant biodiversity; the forest is home to assorted flora and fauna; the forest has never been degazetted; the de-gazettement of the forest requires an elaborate process involving the two houses of parliament; the degazettement will also require the publication of a gazette notice; the degazettement will require the involvement of various state holders; the 1st, 2nd and 3rd respondents have since commenced major infrastructural activities within the protected forest; the actions/activities complained of have been undertaken without regard to the provisions of **Sections 18, 34 and 37 of the Wildlife Conservation and Management Act**; the activities have also been undertaken without the requisite resolutions of parliament; the offensive activities are being undertaken without due regard to the provisions of **Environment Management and Coordination Act [EMCA];** the offensive activities constitutes a threat to biodiversity; the offensive activities shall lead to serious environment degradation; and the offensive activities are being undertaken without due regard of the **Constitution, 2010.** 10. Furthermore, it has been posited that: The intended infrastructural development[s] shall lead to deforestation; the development shall also diminish the carbon sinks; the offensive activities shall enhance the GHC gases; the activities complained of are contrary to sustainable development and the developments ought to be balanced against environmental and ecological considerations. 11. The subject application is supported by three [3] sets of affidavits. The affidavits are: The supporting affidavit of Elizabeth Gitari – Mitaru ; further affidavit of Elizabeth Gitaru – Mitaru and the 2nd further affidavit of William Woodley, sworn on the 21.07.2026. The deponents of the named affidavits, have reiterated and reaffirmed the grounds that have been highlighted in the body of the application. 12. In particular, Elizabeth Gitari -Mitaru, has highlighted and averred that Upper Imenti Forest, forms part of the larger Mount Kenya Ecosystem; the forest is home to assorted wildlife; the forest is key water catchment tower; the offensive developments constitute[s] a threat to the biodiversity; the offensive activities shall cumulatively culminate into serious and grave environment degradation. 13. William Woodley has averred that the assertions by Alex Lemarkoko that the construction of the Airstrip is essential to mitigate fire occurrences, is misleading and erroneous. Moreover, the deponent has averred that same was a senior warden at Mount Kenya National Park and National Reserve; and that during his tenure as such, the Upper Imenti Forest never experienced forest fire occurrences. 14. Additionally, the named deponent has averred that there are various alternatives/airstrips, which would suffice, in the event of forest fire out brakes. The deponent has highlighted to the various alternative[s], which are stated to be viable, at the foot of paragraph 11 of the further affidavit. 15. The application has been opposed by the 1st , 5th and 7th respondents. The named respondents have relied on the replying affidavit sworn by Alex Lemarkoko sworn on the 06.07.2026. The deponent of the replying affidavit has averred that Upper Imenti forest constitutes part of the forest reserve; the Upper Imenti forest falls within the mandate of the 1st and 2nd respondents; the government is desirous to undertake the proposed construction of an air strip; state lodge; golf course ; and extension of the Meru by pass road; the proposed infrastructural development are still at the preliminary stages of evaluation; the government shall comply with all the statutory and constitutional safeguards; the activities complained of have not commenced; the complaints by the petitioner are premature; the petitioner has not met the requisite threshold for the grant of the conservatory orders; and the proposed projects are in the interests of public. 16. Furthermore, the deponent has also averred thus: The proposed Air strip would be essential to tame forest fire out brake at Upper Imenti forest; that the forest is prone/vulnerable to wild fires; the proposed air strip would offer logistical support during rescue and evacuation operations; and the proposed airstrip would also facilitate the rehabilitation efforts in the degraded forest areas. 17. Other than the foregoing, the deponent of the replying affidavit has also posited thus: The government has undertaken public participation; the public participation involves various stakeholders; the public participation was in favor of the intended projects; and the government shall continue to undertake public participation prior to the execution/implementation of the proposed projects. 1. Finally, the deponent of the replying affidavits has averred thus: The proposed projects have far reaching economic and social value [significance] to the people of Meru; the proposed project shall enhance infrastructural communication; and the economic benefit[s] derivable from the projects, far outweigh the environmental concerns /consideration being raised by the petitioner. 2. The 6th respondent has opposed the application vide a replying affidavit sworn by one David Baariu. The affidavit is sworn on the 08.7.2026. The deponent has averred that: The Upper Imenti forest constitute part of public land; the public land falls within the auspices of the national government; the County Government of Meru has no role in the proposed projects; that the County Government of Meru has been mis-joined in the matter; the petition does not disclose any reasonable cause of action against the 6th respondent; the petitioner has not met the threshold for the grant of the conservatory orders; and the orders sought are discretionary in nature. 3. Additionally, it has been averred thus: The proposed projects are still at the preliminary stages of evaluation; the proposed projects have not been commenced; that the requisite statutory and constitutional safeguards shall be complied with; and that the application and the petition are premature. 4. The subject application came up for directions on the 06.07.2026, whereupon the court issued directions pertaining to and concerning the expedited hearing of the application. The directions of the court were: The application shall be served upon all the respondents within two days of the directions; the respondents shall file their responses to the application within 7 days of service; the applicant shall be at liberty to file and serve further affidavit [if any] within 3 days of service; the applicant shall also file written submissions alongside the further affidavit; and the respondents shall file the written submissions within three days of service by the applicants. 5. The applicant filed written submissions dated the 21.07.2026 and wherein the applicant has highlighted and canvassed two [2] key issues. The issues are: Whether the applicant has established /met the threshold for the grant of the conservatory orders sought; and whether a failure to grant the conservatory orders shall defeat the substratum of the petition. 1. Learned counsel for the applicant has thereafter cited and referenced various decisions to anchor the submissions on the question of conservatory orders. The decisions include: **Gatirau Peter Munya Versus Dickson Mwenda Kithinji and 2 others [2014] KESC 38; Center for Rights Education and Awareness [CREW] and 7 others versus the Attorney General [2011] eKLR ; The Board of Management Uhuru Secondary School versus City County Director of Education and 2 Others [2014] eKLR; Nguraman Limited versus Jan Bonde Nielsen and 2 Others [2014] eKLR; Wambura versus the Speaker County Assembly of Embu and 3 Others [2014] eKLR and Muslims for Human Rights [MUHURI] and 2 others versus the Attorney General [2011] eKLR,** respectively. 2. The 1st, 5th and 7th respondents have filed written submissions dated the 15.07.2026. The named of respondents have canvassed four [4] key issues. The issues are: The applicant has not met the threshold for the grant of the conservatory orders; the proposed projects are still at the preliminary stages of evaluation; the application by the applicant is premature; and the public interest militates against the grant of the conservatory orders. 3. Learned counsel for the 1st, 5th and 7th respondents [the named respondents], has thereafter cited and referenced assorted decisions to buttress the submissions. The decisions include: **The Board of Management of Uhuru Secondary School versus The City County Director of Education and 2 others [2015] eKLR; Center for Rights Education and Awareness [CREAW] versus the Speaker of the National Assembly and 2 others [2017] eKLR; Gatirau Peter Munya versus Dickson Mwenda Kithinji and 2 others [2014] eKLR; Martin Nyaga Wambora versus the Speaker of the County Assembly of Embu and 3 others [2104] eKLR and IEBC versus National Super Alliance – Kenya [NASA] and 6 others [2017] eKLR.** 4. *In a nutshell*, learned counsel for the 1st, 5th and 7th Respondents has submitted that the subject application is not only premature but same is devoid of merits and legally untenable. The court has been invited to dismiss the application. 5. The 6th respondent filed written submissions dated the 14.07.2026. The 6th respondent has raised four [4] key issues. The issues are: Whether the application discloses an arguable prima facie case as against the 6th respondent; whether the petition will be rendered nugatory if the orders sought do not issue; whether the public interest favors the grant of the orders sought; and whether application is, in any event, premature. 6. Thereafter learned counsel for the 6th respondent has cited assorted decisions to underpin the submissions. The decisions cited are: **Munya versus Kithinji and 2 others [2014] KESC 30; Gitau and 635 others versus Principal Secretary Ministry of Lands, Public Works , Housing and Urban Development and 5 others [2023] KEELC; Adeba and 17 others versus National Land Commission and 4 others; Nairobi City County [interested party] [2024] KEELC; Nkatha and 76 others versus the District Surveyor – Isiolo County and 7 Others; Kaindio and 565 others [2025] KEELC; and Kassam and 12 others versus Exotic Real Estates Limited and 12 others [2026] KEELC,** respectively. 7. Simply put, learned counsel for the 6th respondent has contended that the petition does not raise any reasonable cause of action as against the 6th respondent, insofar as the Upper Imenti forest does not fall under the mandate of the County Government of Meru. In addition, it has been posited that the actions complained of, are yet to commence and hence both the petition and the application, are premature and thus legally untenable. 8. Having reviewed the notice of motion application, the supporting affidavits thereto; the responses on behalf of designated respondents; and upon consideration of the written submissions by /on behalf of the respective parties, two [2] key issues emerge for determination. The issues are: Whether the petition by the applicant discloses /exhibits a prima facie case; and whether the failure to grant the conservatory orders shall defeat the petition or otherwise. 9. Regarding, the first issue, it is imperative to reiterate that any applicant, the current applicant not excepted, who seeks to procure a conservatory order, is obligated to demonstrate/establish the existence of an arguable case, popularly, referenced as a prima facie case. The requirements pertaining to proof of a prima facie case, has been underscored in a plethora of decisions. 1. In the case of **Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR)**, the court [Per J. L Onguto – Judge as he then was] [may his soul rest in peace] stated as here under: **Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]:** ***“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.*** ***It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others –v- The Attorney General (Supra) stated as follows:-*** ***“I would agree with my brother that an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success” (emphasis).*** 1. Furthermore, the necessity to demonstrate an arguable case, which was baptized/characterized as the inherent merits of the case, was underscored in the case of **Munya v Kithinji & 2 others [2014] KESC 30 (KLR).** The supreme court highlighted the principles in the following terms: **7. Conservatory orders bare a more decided public-law connotation: for they are orders that facilitate orderly functioning within public agencies, as well as uphold the adjudicatory authority of the Court in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues like “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay.** **8. Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.** 1. Has the applicant established an arguable case on the basis of the petition or otherwise? To start with, the applicant has contended that the impugned projects have been commenced prior to and before compliance with the mandatory provisions of **Sections 18, 34 and 37 of the Wildlife Conservation and Management Act, 2016**. The provisions of **Sections 34 and 37 of the Act** [*supra*] are couched in mandatory terms. In addition, the said provisions provide an elaborate process that must be complied with the boundaries of a gazzetted forest and the National reserve, can be altered and or adjusted. 2. Additionally, the petitioner has also highlighted the issue that the implementation of the project has been commenced without obtaining the requisite approval from the national environment management authority [NEMA]. In particular, it is important to highlight the provisions of **Section 58 of the EMCA Act, 1999 [2015].** 3. For brevity, the sections under reference stipulate thus: ***57A. Strategic Environmental Assessment*** ***(1)All Policies, Plans and Programmes for implementation shall be subject to Strategic Environmental Assessment.(2)For the avoidance of doubt, the plans, programmes and policies are those that are—(a)subject to preparation or adoption by an authority at regional, national, county or local level, or which are prepared by an authority for adoption through a legislative procedure by Parliament, Government or if regional, by agreements between the governments or regional authorities, as the case may be;(b)determined by the Authority as likely to have significant effects on the environment.(3)All entities shall undertake or cause to be undertaken the preparation of strategic environmental assessments at their own expense and shall submit such assessments to the Authority for approval.(4)The Authority shall, in consultation with lead agencies and relevant stakeholders, prescribe rules and guidelines in respect of Strategic Environmental Assessments.[Act***[***No. 5 of 2015***](https://kenyalaw.org/akn/ke/act/2015/5)***, s. 42.]*** ***58. Application for an Environmental Impact Assessment Licence*** ***(1)Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before for an financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.*** ***(2)The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.*** ***(3)The environmental impact assessment study report prepare under this subsection shall be submitted to the Authority in the prescribed form, giving the prescribed information and shall be accompanied by the prescribed fee.*** ***(4)The Cabinet Secretary may, on the advice of the Authority given after consultation with the relevant lead agencies, amend the Second Schedule to this Act by notice in the Gazette.*** ***(5)Environmental impact assessment studies and reports required under this Act shall be conducted or prepared respectively by individual experts or a firm of experts authorised in that behalf by the Authority. The Authority shall maintain a register of all individual experts or firms of all experts duly authorized by it to conduct or prepare environmental impact assessment studies and reports respectively. The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee*** ***.(6)The Director-General may, approve any application by an expert wishing to be authorised to undertake environmental impact assessment. Such application shall be made in the prescribed manner and accompanied by any fees that may be required.*** ***(6A)The Cabinet Secretary in consultation with the Authority shall make regulations and formulate guidelines for the practice of Integrated Environmental Impact Assessments and Environmental Audits.*** ***(6B)The Cabinet Secretary shall make regulations for the accreditation of experts on environmental impact assessments.*** ***(7)Environmental impact assessment shall be conducted in accordance with the environmental impact assessment regulations, guidelines and procedures issued under this Act.*** ***(8)The Director-General shall respond to the applications for environmental impact assessment license within three months.*** ***(9)Any person who upon submitting his application does not receive any communication from the Director-General within the period stipulated under subsection (8) may start his undertaking.*** ***(10)A person who knowingly submits a report which contains information that is false or misleading commits an offence and is liable on conviction, to a term of imprisonment of not more than three years, or to a fine of not more than five million shillings, or to both such fine and imprisonment and in addition, his licence shall be revoked.*** 1. The 1st, 2nd and 5th respondents, who are essentially the proponents of the project, have not demonstrated that same have complied with or adhered to the requirements of the provisions of **Sections 57A and 58 of the EMCA Act 1999 [2015].** In the absence of the requisite approval, namely, the Environmental and Social Impact Assessment License, the project which has since been commenced appears [and I say, appears] to be contrary to the prescription of the law. 2. Additionally, there is the contention that the project, or better still the proposed project, as the 1st, 2nd, 5th and 7th respondents would want to call it, is bound to culminate to excision of the forest and thus lead to deforestation. The legal implications of such actions, may lead to several consequences, including violation of the principles espoused vide **Article 69 of the Constitution, 2010.** 3. On the other hand, there is also the weighty arguments, touching on and concerning the quality of public participation, if any, was undertaken. The applicant posits that the impugned project is being undertaken, without public participation and involvement of the key stake holders. It has been contended that in the absence of the public participation, the offensive project is unconstitutional. 4. The 1st , 2nd, 5th and 7th respondents, have maintained that same undertook public participation and to this end, same [the named respondents have exhibited minutes alluding to public participation. 5. The question that does arise and which the court will have to interrogate, touches on the quality of the public participation; whether there was prior public awareness; and whether the key stake holders including the applicant was involved. This issue cannot be determined at the interlocutory stage. It will require examination of the evidence during a plenary hearing. 6. Be that as it may, I wish to point out that the question of public participation, is yet another critical ingredient that works in favor of the applicant. In the absence of public participation, in the manner contended by the applicant, then a prima facie case does arise. 7. The importance of public participation and the parameters [guidelines] to be deployed in ascertaining whether the scope of public participation, met the constitutional threshold, was highlighted by the supreme court in the case **British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR).** The court highlighted the following: ***From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under section 3 of the***[***Supreme Court Act***](https://new.kenyalaw.org/akn/ke/act/2011/7/eng%402022-12-31)***, we would like to delimit the following framework for public participation:*** ***Guiding Principles for public participation*** ***(i)a constitutional principle under article 10(2) of the***[***Constitution***](https://kenyalaw.org/akn/ke/judgment/kehc/2015/5590)***, public participation Applies to all aspects of governance.*** ***(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.*** ***(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.*** ***(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.*** ***(v)Public participation is not an abstract notion; it must be purposive and meaningful.*** ***(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.*** ***(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.*** ***(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.*** ***(ix)Components of meaningful public participation include the following:*** ***a. clarity of the subject matter for the public to understand;*** ***b. structures and processes (medium of engagement) of participation that are clear and simple;*** ***c. opportunity for balanced influence from the public in general;*** ***d. commitment to the process;*** ***e. inclusive and effective representation;*** ***f. integrity and transparency of the process;*** ***g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.*** 1. On the basis of lack of public participation, in the manner posited by the applicant, I find and hold that there is an arguable case. Simply put, the applicant has exhibited what ex facie [on the face of it] is arguable. In addition, the petition has inherent merits, which would require investigations, during the plenary hearing. 2. Before concluding on this issue, it suffices to reference **Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR),** where the court highlighted the meaning of a prima facie case. 3. It was stated thus: ***Prima facie” is a Latin phrase for “at first sight”, whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried”, “a question which is not vexatious or frivolous”, “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332.*** ***31.Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words:“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”*** 1. Next is the issue as to whether the failure to grant conservatory orders, will defeat the substratum of the petition. To begin with, the crux of the petition is the preservation and conservation of the Upper Imenti forest, which constitute part of the wider Mount Kenya ecosystem. In addition, it is also not lost on me that the substratum of the petition also entails the conservation of the environment in accordance with the provisions of **Article 42 of the Constitution, 2010.** 2. Then there is the contention that the intended excision of the Upper Imenti forest and the construction of the state lodge; the air strip; and the golf course, will culminate into deforestation. A question has been raised as pertains to the provisions of **Article 69 [a] and [c] of the Constitution, 2010.** The constitution commanded that the state ensures and takes positive measures towards a forestation. Constitutionally, the acreage comprising of forest should be equal to 10% of the land mass. 1. We are yet to reach there, despite the constitution having lived with us for more than 16 years. However, the apprehension at the foot of the current petition, is to the effect that instead of taking positive steps forward, there appears to be backward steps. The question that shall be addressed is whether the impugned projects may [I say may] impact on the **Article 69 Principles.** 2. Other than the foregoing, there is the principle of sustainable development. The principle herein postulates that developments, like the one in question, ought to take into account, Ecological concerns; and Environmental considerations. There is the need to utilize and exploit the environment in such a manner that would take care of the future generations. The court will be called upon to interrogate whether the principle of ecological sustainable development has been considered. 3. Additionally, the petition raises the impact of the projects on the water catchment and the general effects, including remission of GHC gases, into the atmosphere. These are issues that will be interrogated. 1. The bottom line is to the effect that the project in question, will have ripple effects, on the environment and thus the continuation thereof, before the subject petition is heard and determined, will no doubt defeat same. I hold the view that a failure to grant the conservatory orders, would be tantamount to driving the petitioner away from the seat of justice, albeit prematurely. 2. Finally, I am alive to the precautionary principle. The principle herein has been defined *vide* **Section 3 [5] of the Environment Management and Coordination Act, 1999 [2015].** 3. The section states thus: **In exercising the jurisdiction conferred upon it under subsection (3), the Environment and Land Court shall be guided by the following principles of sustainable development—** **(a)the principle of public participation in the development of policies, plans and processes for the management of the environment;** **(b)the cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law;** **(c)the principle of international co-operation in the management of environmental resources shared by two or more states;** **(d)the principles of intergenerational and intragenerational equity;** **(e)the polluter-pays principle; and** **(f)the pre-cautionary principle.** 1. *In a nutshell*, I find and hold that the grant of the conservatory orders, will operate to preserve the substratum of the petition. It will also vindicate the rights of the petitioner’s rights in terms of **Article 48 and 50 [1] of the Constitution, 2010.** In addition, it shall ensure equality of arms, as espoused in **Article 27 [1] and [2] of the Constitution, 2010.** **Conclusion:** 1. It was incumbent upon the applicant to establish/demonstrate that the petition before the court has inherent merits or better still is arguable. It suffices to state that inherent merits of the petition or its arguability, does not mean that the petition will ultimately succeed. The critical point, is whether there are pertinent issues, worthy of interrogation during the plenary hearing. 2. I have endeavored to and highlighted a number of issues, that stand out for investigations. There are assertions touching on non-compliance with the **EMCA Act, 1999 [2015]**; none compliance with the **Forest Conservation and Management Act, 2016;** violation of the **Wildlife Conservation and Management Act 2016**; breach of **Articles 10 [2]; 42; 67 [2]; and 69 of the Constitution, 2010.** 1. Equally, I have also highlighted the state responsibility in terms of various international instruments. The international instruments include: **The Paris Agreement, the Convention on Bio Diversity; and the Rio de Janeiro [ the Earth Summit].** These are also matters that would worthy of interrogation, taking into account **Articles, 2 [5] and [6] of the Constitution, 2010.** 2. Finally, I have pointed out that the principle of equality of arms commands that a party ought not to be driven away from the seat of justice prematurely. On the contrary, it is trite that a party, the applicant herein not excepted, needs to have his/her day in court. The grant of the conservatory orders, goes along way in upholding this principle. **Final orders:** 1. Pulling the threads together, the final orders that commend themselves to the court are: 2. ***The Application dated the 26.06.2026 be and is hereby allowed.*** 3. ***There be and is hereby issued a conservatory order, restraining the respondents whether themselves, their agents, officers or any persons acting under their authority, from initiating and/or continuing the setting up, implementation, establishing operating, approving or permitting the construction and/or any infrastructure development within the Upper Imenti Forest Reserve, pending the hearing and determination of the petition.*** 4. ***There be and is hereby issued a conservatory order, restraining the respondents whether by themselves, their agents, officers or any other persons acting under their authority, from degazetting and or accessing any part of the Upper Imenti Forest for development, operation and constructing of a state a lodge, airstrip/airport and gold course, pending the hearing and determination of the Petition.*** 5. ***There be and is hereby issued a conservatory order, restraining the respondents whether by themselves, their agents, officers or any persons acting under their authority from allocating, surveying, licensing, clearing, fencing, construction, or undertaken any activity relating to the construction of the proposed state lodge, airstrip/airport and golf or any other way within the Upper Imenti forest Reserve, pending the hearing and determination of the Petition.*** 6. ***Costs of the application shall abide the outcome of the Petition.*** 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo Dr. Ken Nyaundi for the Petitioner/Applicant Mr. Erick Obura Principal State Counsel for the 1st, 2nd, 5th and 7th Respondents. Mr. Boniface Mwereru for the 6th Respondent Ms. Nyaga for the 2nd Interested Party N/a for the 3rd Respondent N/a for the 1st interested party.