https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4670

East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 9 others (Environment and Land Petition E001 of 2024) [2026] KEELC 4670 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEELC 4670 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Petition E001 of 2024 LN Gacheru, BM Eboso & JO Olola, JJ July 17, 2026 Between East Africa Wildlife Society 1st Petitioner Kenya Forest Working Group 2nd Petitioner Africa Centre for Peace and Human Rights 3rd Petitioner Lempaa Suyianka 4th Petitioner and Kenya National Highways Authority 1st Respondent Kenya Water Towers Agency 2nd Respondent Norken International Limited 3rd Respondent National Environment Management Authority 4th Respondent and Conservation Alliance of Kenya 1st Interested Party Law Society of Kenya 2nd Interested Party Senator John Methu 3rd Interested Party Kenya Wildlife Service 4th Interested Party National Museums of Kenya 5th Interested Party Kenya Forest Service 6th Interested Party Judgment 1.By the Petition dated 22nd March, 2024, East Africa Wildlife Society, Kenya Forest Working Group and Africa Centre for Peace and Human Rights (the Petitioners) pray for orders as follows: -a.A declaration that KENHA’s plan to build the Mau Mau Lot 4: Ihithe-Ndunyu Njeru road, traversing the Aberdare National Park and Aberdare Forest Reserve violates Articles 10, 11, 42, and 69 of the Constitution and is therefore invalid;b.A declaration does issue that development in the water towers is limited to eco-tourism and research and that in parks and conservancies like the Aberdare National Park, change to any other use is not permitted except for conservation purposes;c.A permanent injunction does issue forbidding the Respondents and their agents from building the planned Ihithe-Ndunyu Njeru road traversing the Aberdare National Park and Aberdare Forest Reserve;d.A declaration does issue that Norken International Ltd’s conflict of interest in conducting the ESIA on the facts of this case violates Article 10 and 47 of the Constitution. A further declaration does issue that environmental impact assessments must be conducted by neutral and impartial experts;e.A structural interdict directing KENHA to prepare and submit to the court for scrutiny, within 90 days of the order, alternative routes for the road passing outside the Aberdare National Park and Aberdare Forest Reserve;f.A structural interdict directing NEMA, Kenya Wildlife Service, Kenya Water Towers Agency, Kenya Forest Service, within 90 days of this order, to prepare and present to the court for scrutiny and thereafter to post and to update yearly on their website, a joint inventory of biological diversity of Kenya indicating threatened, endangered, or rare species in Kenya (including in the Aberdare National Park and Forest Reserve);g.An order that the KENHA, KWTA, and NEMA Director Generals/CEOs take personal responsibility for the unconstitutional decision to build the road through the protected Aberdare and indemnify the public by bearing the costs of this litigation to deter repetition or future violations. 2.The above prayers arise from the Petitioners’ contention that the 1st Respondent plans to build a 52km road linking Ihithe and Ndunyu Njeru areas in Central Kenya, traversing the Aberdare National Park and Forest Reserve. 3.It is the Petitioners’ case that in order for the 1st Respondent to achieve that goal, it must destroy 25km of closed canopy forest, thereby destroying the Park and the Reserve and ruining its unique biodiversity. The Petitioner assert that the proposed road would alter and destroy the Aberdare eco-system as the proposed road would create deleterious environmental results and cause irreversible damage to a fragile and delicate ecosystem in violation of the Constitution. 4.In that respect, the Petitioners aver that apart from loss of biodiversity the said road construction will lead to tree cover loss, unjustifiable limitation of the right to a clean and healthy environment, violate the inhabitants right to cultural heritage and worsen the impact of climate change. 5.It is further the Petitioners’ case that NEMA (the 4th Respondent) licensed the road with no mitigation measures and that the decision poses the risk of extinction of critically endangered species and is ultra-vires its duty as provided under Section 9 of the Environmental Management Coordination Act (EMCA). They further aver that the 4th Respondent’s decision violates the principles of justification, the rule of law, good governance as well as accountability and transparency as provided under Article 10 of the Constitution. 6.The 1st Respondent is opposed to the Petition. In a Replying Affidavit sworn on its behalf by its Assistant Director Environment Safeguards, Adams Murithi, the 1st Respondent contended that the ELC lacked the requisite jurisdiction to hear the matter as there were alternative mechanisms provided under sections 129 -130 of the EMCA. It is the 1st Respondent’s case that in line with the Government’s Vision 2030 Policy, it commenced construction of the project termed the Mau Mau Road in line with the Country’s objective of attaining a sustainable safe road network. 7.The 1st Respondent further avers that the petition as filed is nothing but a direct challenge to the Environmental Impact Assessment Licence (the Licence) issued to it by the 4th Respondent on 5th January 2024. It is the 1st Respondent’s case that all the issues raised were fully addressed through the mitigation measures set out in the Environmental Impact Assessment study report as well as the conditions attached thereto. It was the 1st Respondent’s case that the issues raised in the Petition can be adjudicated upon by the National Environment Tribunal (NET). 8.The 1st Respondent asserts that it conducted sufficient public participation and that prior to the commencement of the project, environmental experts had examined the same and identified its potential impacts. The 1st Respondent avers that the Petition does not demonstrate any breach of human rights and/or fundamental freedoms as guaranteed under the constitution and that the same does not meet the threshold of a Constitutional Petition. 9.It is the 1st Respondent’s case that the project will have limited environmental impact on the eco-system and that it will not change the eco-system as alleged. The 1st Respondent asserts that the key objectives of the Vision 2030 Policy cannot be achieved if flagship projects such as this one were not implemented. 10.The position taken by the 1st Respondent was supported by Senator John Methu (the 6th Interested Party). According to the 6th Interested Party, the purpose of the project is to increase connectivity, accessibility and ease transport in the counties the road traverses through. He avers that the road is already in existence and the project will not in any way negatively impact the ecological, climate and environmental system. 11.The 6th Interested Party avers that in compliance with the 4th Respondent’s prescribed Rules and Guidelines for the receipt, review and approval of EIA Reports as well as the Second Schedule of EMCA, the 1st Respondent as a proponent of the subject project conducted an Environmental and Social Impact Assessment (ESIA) and prepared a comprehensive study report. It is his case that the study Report focused on the mitigation and budgetary considerations during pre-construction, construction and post-construction stages of the project. The 6th Interested Party further states that in coming up with the report the 6th Respondent took into consideration mitigation measures to minimize damages that might occur during construction and after completion of the project. 12.The 6th Interested Party asserts that upon receipt of the 1st Respondent’s application on the issuance of the license, the 4th Respondent did issue a Public Notice on 18th April 2023 inviting members of the public to present their views on the Study Report and the proposed project in general. It is further his case that the 4th Respondent further contacted the relevant lead agencies on their comments on the Report and concludes that both the 1st and 4th Respondents complied with all statutory requirements before issuing the license. Petitioners Evidence 13.The hearing of the petition commenced on 27th May, 2025 before the three (3) Judge Bench. The Petitioners called three (3) witnesses: (i) Dr. Festus Ihwangi; (ii) Dr. Maria Fernard Salinas (PW2); (iii) and Ernest Grant Niemi (PW3) testified virtually. 14.Dr. Festus Ihwangi testified as PW1. A Senior Scientist and Research Policy Lead with twenty-three (23) years. He currently serves at Save the Elephants Kenya. He adopted his Affidavit dated 22nd March, 2024 as his sworn evidence - in - chief. He testified that the Aberdare is home to at least four (4) critically endangered species of animals which include Aberdare’s Cisticola and the mountain Bongo, adding that there are only one hundred (100) of them left in the wild. He testified that expansion of the road within the park will create an environment of invasive species to sprout up. He also told the Court that a road through the Aberdare will increase accidents and collusions. 15.He testified that what was reflected in the Environmental Impact Assessment (EIA) is not genuine and that there was no Strategic Environmental Assessment which must go beyond the area of assessment. In addition, he told the Court that the EIA and Environmental Social Impact Assessment (ESIA) were silent about the endangered species, hence there was obvious plagiarism. 16.PWI told the Court that there was a conflict of interest on part of the by the 3rd Respondent who did the Environmental Study Impact Assessment (ESIA) because they had a contract to design and supervise the construction of the road. He testified that the Aberdare is a water tower and a no – go – zone, contending that the 1st respondent should have explored alternative road being Ndaragwa-Kariamu. 17.On further cross examination by the Counsel for the 3rd and 4th Respondent, PW1 testified that the road is contra to the Aberdare National Economic Management Plan, which provides a clear framework on what can be done and what cannot be done in the Aberdare. He told the Court that the Report was done by the Ministry of Enviroment and that the road is contra to the plan because it is going to destroy the habitat of an endangered species. 18.On cross examination by Counsel for the 1st Respondent, PW1 told the Court that the Code of Ethics does not prohibit the designer of a road from doing the environmental social impact assessment (ESIA) study. He told the Court that the objective under the licence was to construct a class C type of road but he could not tell what class the road was. 19.He told the Court that the current road is partly tarmacked and murram but it is narrow and designed for eco-tourism and that the road is in use and vehicles use it. He testified that that he was criticizing the environmental social impact assessment (ESIA) report on the basis that it was not preceded by a strategic environmental assessment. He admitted that the project was not a policy, plan or programme and stated that the project cuts through an area which already had a policy. 20.He testified that he was aware that the proponent would be required to obtain permits and authorizations from Kenya Forest Service (KFS) and Kenya Wildlife Service (KWS) and that the two authorities will give the applications due consideration before making decisions. He added that the Environmental Impact Assessment was not properly done, adding that he came up with an alternative route through literature review. He admitted that the 1st Respondent took into account what he told them during public participation. He testified that the road he proposes is not motorable and is purely muddy. 21.On re-examination, he told the Court that Nyandarua and Nyeri are high agricultural areas and that the road would serve more people of the two counties. He told the Court that it was not proper to publish an environmental impact assessment report before receiving inventory and that literature reviews help in forming opinions and that Strategic Environment Assessment (SEA) is done independently with someone who has no interest. 22.Dr. Maria Fernard Salinas testified as PW2. She held a Doctor of Philosophy (Phd) with a specialization in Ecology and Evolutionary Biology from the University of Chile. She currently serves as a Staff Scientist at the Environmental Law Alliance Worldwide (ELAW). She adopted her Affidavit dated 27th January, 2025 as her evidence in chief. She told the Court that the Environmental Impact Assessment (EIA) fails to take into consideration the impact of the proposed project and mitigation thereof on the mountain bongo, an endangered species with an estimated population of between 29 to 50 in the world. 23.She testified that the birds would also be affected by the construction as a lot are sensitive to noise. Further, she also told the court that the communities around the forest rely on it to obtain food as firewood and medicine as part of their culture and that the forest regulates the local weather and thus plays an important role in protection of local communities from effects of climate change. 24.On cross examination by Counsel for the 1st Respondent, she testified that the information available in the Environmental Impact Assessment Report is not sufficient to enable one to provide for what restrictions would be there. It was her testimony that the road would change the landscape and hinder present generation from passing their culture to the next generation. She told the Court that mitigation measures are such as avoidance, biodiversity laws or biomass compensation. 25.On further cross examination, PW2 testified that she has never been to Kenya but did a desktop study when preparing her Affidavit. She told the Court that she does not know the percentage of land that the project would take and that she also does not know the impact of the current existing road. Further, she told the Court that according to her the mitigation measures are not sufficient. 26.On re-examination, she told the Court that the highest number of mountain bongo is found in Aberdare forest and that traffic is a source of noise and pollution. She also stated that the Environmental Impact Assessment would be a better document to enable one make an informed choice. 27.Ernest Grant Niemi testified as PW3. A resident of Dexter, Oregon in Northern California, United States of America. He holds a Masters Degree from Harvard University with a speciality in Natural Resource Economics. He currently serves as a Resident of Natural Resource Economics, an International Consultancy. He adopted his affidavit dated 30th January, 2025 as his evidence in chief. He testified to the Court that the project would be harmful to the biodiversity and we would be destroying something that is irreplaceable and that he did not find anywhere in the Environmental Impact Assessment where external costs are discussed. 28.On cross examination by counsel for the 1st Respondent, hetestified that the license provides for compensation and offset plan however he did not discuss about them because often those plans do not work. He told the Court that social costs which are carbon dioxide related costs, high temperatures will lead to violence. 29.On further cross examination, he testified that the authors of the Report have declared that they did not have any conflict of interest in preparing the Report and that they have shown the sources of their data. 30.The Court issued directions on 7th November, 2024, for the matter to proceed by both Affidavit and viva voce evidence. The Affidavit dated 22nd March, 2024 of Nancy G Ogonje, the Executive Director of the East African Wild Life Society (EAWLS) was adopted by the Court as part of Petitioner’s evidence. 1st Respondent’s Evidence 31.The 1st Respondent sworn Replying Affidavit dated 29th November,2024 by Adams Murithi, Assistant Director, Environmental Safeguards, Directorate of highway Design and Safety of the 1st Respondent was equally adopted as part of the 1st Respondent’s evidence. Site Visit on 18th July, 2025 32.The three (3) Judge Bench and the parties visited the proposed site on 18th July, 2025. The purpose of which was for the Bench to familiarize itself with the proposed Mau Mau Lot 4. Ihithe- Ndunyu Njeru Road. Submissions 33.On 9th October, 2025, the three Judge Bench issued directions on filing of submissions by the Petitioners, Respondents and Interested Parties. On 18th December, 2025, the Court issued directions for the parties to highlight their submissions. 34.In support of the Petition, the 1st Petitioner filed their Submissions dated 5th December, 2025. The 1st Petitioner identified four (4) issues for determination as follows:1.Whether the intended construction of the MAU MAU Lot: Ihithe-Ndunyu Njeru Road classified as C509.C481/C482 (52km) shall lead to a violation of the rights under Article 10, 42 and 69 of the Constitution of Kenya 2010 2.Whether the Court Site Visit Report dated 18/07/2025 should be relied on by the Honourable Court as is 3.Whether the economic benefits of the proposed road to the residents of the counties where the proposed road shall traverse, being Nyeri and Nyandarua Counties, among others, far outweigh the ecological benefits of the Aberdare ecosystem and specifically the Aberdare Forest Reserve and Park to Kenya as a whole 4.Whether the Petitioners should be granted the orders sought in the Petition dated 22/03/2024 35.On the first issue, the 1st Petitioner submitted that the intended construction of the proposed MAU MAU Lot 4: Ihithe -Ndunyu Njeru Road set to traverse the Aberdare’s shall lead to a gross violation of Petitioners rights under Article 10, 11, 42 and 69 of the Constitution of Kenya 2010. The 1st Petitioner submitted that National Environmental Management Authority (NEMA), 4th Respondent acted arbitrarily without any justification when they approved the 2024 Environmental Study Impact Assessment (ESIA) and consequently issued a licence to Kenya National Highways Authority (1st Respondent) for the construction of the subject road which they had previously rejected in the year 2009. 36.The 1st Petitioner submitted that the 1st Respondent re- submitted the said Report without addressing issues raised by National Environmental Management Authority (NEMA) in the year 2009 and that National Environmental Management Authority (NEMA) approved the same without justifying whether concerns raised such as adverse effects it would have on natural forest, were no longer relevant which actions infringed upon Article 10 and 47 of the Constitution of Kenya 2010. 37.The 1st Petitioner relied on the decision in Green Belt Movement V Honourable Attorney General & 9 Others; Law Society of Kenya & 3 Others ( Interested Parties) (2025) KEELC 5945 (KLR) as reiterated in Trusted Society of Human Rights Alliance V James Kinuthia & Another ( 2013) eKLR where the Court stated that where legal procedures are meant to protect the environment are not followed, an assumption arises that the project violates the right to clean and healthy environment to argue that the 4th Respondent as the primary environmental regulator. 38.Further the 1st Petitioner submitted that the 3rd Respondent purporting to conduct an Environmental Impact Assessment was irredeemably tainted by conflict of interest thus rendering the Environmental Study Impact Assessment Report unreliable as it was compromised for want of procedural fairness, integrity and adherence to the Rule of Law. 39.The 1st Petitioner submitted that the 1st Respondent failed to undertake a meaningful public participation prior to making the decision to construct the proposed road. Counsel cited Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations 2003, which imposes obligations on the proponents of any project to seek views of persons who may be affected by a project. Counsel relied on the decision in Baadi & Others V Attorney General & 7 Others; National Land Commission & 2 Others (Interested Parties); Global Initiative for Economic, Social and Cultural Rights & Another (Amicus Curiae) (2018) KEHC 5397 (KLR) to buttress the argument on environment democracy which requires the right of all whose daily lives are affected by the quality of th1e environment to participate in environmental decision making as freely as they do in public interest matters. 40.It was the 1st Petitioner’s submission that the intended construction violates Article 44 of the Constitution of Kenya, which guarantees every person the right to enjoy and participate in one’s cultural life. It was submitted that the National Museum of Kenya on 30th June, 2023 submitted the Aberdare mountain to the tentative list of UNESCO World Heritage sites under three (3) of the operational guidelines for the implementation of the world heritage convention. As such, construction of a road is likely to degrade the landscape which automatically translates into cultural deprivation as it will alter the Aberdare character due to noise, forest fragmentation and disruption of wildlife. 41.It was the 1st Petitioner’s submission that right to clean and healthy environment is intrinsically linked to the Right to life as affirmed in the decision of Baadi & Others V Attorney General & 7 Others; National Land Commission & 2 Others (Interested Parties); Global Initiative for Economic, Social and Cultural Rights & Another (Amicus Curiae) (2018) KEHC 5397 (KLR). In addition, the 1st Petitioner submitted that life in its proper dimension cannot be enjoyed unless the ecological balance and purity of air and water are preserved. 42.On the second issue, the 1st Petitioner submitted that the site visit Report did not cover key points and areas of concern as were noted during the Court site visit and the Honourable Court should not rely on it. It was submitted that despite the Court noting that about 40km of the forest reserve and National Park shall be used for construction of the intended road, it failed to take into account the meaning of Kiandogoro which means Bongo Hill and that the intended road will cross through a critical bongo habitat. Secondly, that though the Report indicates that matatus and motorcycles rarely pass through the corridor, should the proposed road be constructed, then matatus and motorcycles will be allowed to use the road. Further, it was the 1st Petitioner’s submission that the Report was limited on Karuru Waterfalls and that the Bench was taken through Ndunyu Njeru-Kariamu–Ndaragwa Road, which was proposed as an alternative by the Respondents. The petitioners submit that the alternative route is shorter as the team left Kariamu at 1500 hrs and arrived back to Nyeri at around 6.30 pm. 43.On the third issue, it was submitted that the purported economic benefits arguments advanced by the Respondents cannot outweigh the immense ecological, cultural and national environmental value of the Aberdare eco-system. The 1s petitioner relied on the decision in Friends of Lake Turkana Trust V Attorney General & 2 Others (2014) eKLR, which relied on the International Court of Justice case concerning Gabcikovo –Nagymaros project (Hungary/Slovakia) (The Danube Dam Case) 37 ILM (1998), which stated that vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. 44.The Petitioner submitted that the alleged economic benefits purported by the Respondents is illusory because instead of the said road reducing transport, it imposes new financial burden on local communities, transporters, traders and general public. In, addition, the requirement of toll like charges to allow passage since is a National Park, it is a clear acknowledgment by the Respondents that the road intrudes a protected area. As such, Counsel submitted that ecological loss is more substantial and irreversible compared to the purported economic benefits. 45.On the last issue, the 1st Petitioner submitted that it has outlined various constitutional rights that are infringed and violated as settled in Anarita Karimu Njeru V Republic No. 1 (1979) 1 KLR, 54 and reiterated in the case of Mumo Matemu V Trusted Society of Human Rights Alliance Civil App. 290/2012 (2013) eKLR. 46.Kenya National Highway Authority (KENHA), the 1st Respondent filed its written submission dated 27th January, 2026, it raised six (6) issues for determination as follows: 1.Whether the proposed Mau Mau Lot 4: Ihithe – Ndunyu Njeru Road Project is constitutional 2.Whether the 3rd Respondent acted in conflict of interest in conducting the subject ESIA 3.Whether the proposed Mau Mau Lot 4: Ihithe – Ndunyu Njeru Road Project requires a Strategic Environmental Assessment (SEA) 4.Whether the ESIA Study Report and Joint Technical Report prepared by the 1st Respondent contains adequate mitigation measures for the proposed Mau Mau Lot 4: Ihithe -Ndunyu Njeru Road Project 5.Whether the 1st Respondent conducted a proper analysis of alternatives of the proposed project 6.Whether the Petitioners have discharged their burden of proof and are lawfully entitled to the reliefs sought 47.On the first issue, it is the 1st Respondent’s submission that the legal regime for the issuance of Environmental Impact Assessment (EIA) licenses is provided for in Article 69(f) of the Constitution. It relied on the decision in Patrick Musimba V National Land Commission & 4 Others (2016) KEHC 5956 (KLR) where the Court stated that physical development must be undertaken within a constitutional and statutory framework to ensure that the environment thrives and survives. It was its submission that Section 58 of Environment Management Coordination Act (EMCA) unambiguously provides that a project proponent cannot proceed with a proposed construction unless it submits a project Report to NEMA, undertakes a full Environmental Impact Assessment study of the proposed project and procures Environmental Impact Assessment (EIA) License as outlined under Section 63 of Environment Management Coordination Act (EMCA). 48.The 1st Respondent submitted that the proposed project is constitutional as it was lawfully issued with an Environmental Impact Assessment license in accordance with Sections 58 and 63 of EMCA. The 1st Respondent placed reliance in the UK Court of Appeal Case Fincvh on Behalf of the Weald Action Group, R (On the Application of) V Surrey County Council & Others (2022) EWCA Civ. 187 (17 February 2022) to bring out that Environmental Impact Assessment process is not an end in itself but a process with a specific procedure set out in the Environmental Impact Assessment Directive and Regulations which ought to be carried out in accordance with that procedure. 49.On the second issue, it was the 1st Respondent submission that there is no statutory requirement that bars Environmental Impact Assessment Expert from conducting an Environmental Study Impact Assessment Study for a project that it has direct pecuniary interests and that Section 58 of EMCA allows anyone to undertake an Environmental Study Impact Assessment Study including the project proponent and that conflict would arise if National Environment Management Authority (NEMA) purports to conduct an Environmental Impact Assessment Study. 50.Further, it was the 1st Respondent’s submission that the subject Environmental Study Impact Assessment was done and concluded by the 3rd Respondent in the year 2022 before enactment of EMCA (Impact Assessment & Audit) Regulations 2025 and that the stated regulation has no retrospective effect as such the 1st Respondent relied on the decision in Supreme Court Case in Macharia & Another V Kenya Commercial Bank Ltd & 2 Others (Application 2 of 2011) (2012) KESC 8 (KLR) (23 October 2012). 51.On the third issue, it was the 1st Respondent’s submission that the law does not make a Strategic Environmental Assessment (SEA) a necessary precondition for a project but the same is under the law policies plans and programs. In addition, it was the 1st Respondent submission that pursuant to Section 58 of Environment Management Coordination Act a license is granted to a Project proponent of a project after submitting a Project report not policy, plan or programme. To buttress this position, the 1st Respondent relied on the decision of the UK Court of Appeal for England and Wales in R (On the Application of) V Secretary of State for Housing, Communities and Local Government (2021) EWCA Civ. 1954 (20 December 2021) 52.On the fourth issue, it was the 1st Respondent’s submission that in granting EIA license to the 4th Respondent it took into account precautionary principle by attaching conditions to the license and that the ESIA Report further provided extensive mitigation measures which the 4th Respondent considered and found to be sufficient. In addition, the 1st Respondent submitted that various mitigation measures have been put in place to address the adverse impact of its proposed project as raised by the Petitioners grievances in the area of biodiversity loss, tree cover loss, external costs of the road violation of cultural heritage, climate change impact and violation of water towers. 53.It was the 1st Respondent submission that its ESIA Study contains comprehensive mitigation measures tailor made to address any potential adverse impact of the proposed project. In addition to the mitigation measures in its ESIA study Report, there are additional mitigation measures contained in the Joint Technical Report prepared by the 1st Respondent, 3rd Respondent and 3rd Interested Party. 54.On the fifth issue, it was the 1st Respondent submission that it undertook a comprehensive analysis of all the alternatives to the proposed project and found that the proposed project to be financially and environmentally sound. 55.It is the 1st Respondent submission that it did a proper & comprehensive analysis of the alternative routes and concluded that the proposed road project is financially and ecologically sound. 56.On the last issue, it was the 1st Respondent submission that the Petitioners have not led any evidence to demonstrate and / or substantiate their allegations that the 1st Respondent’s proposed project is unconstitutional and that they have also not adduced any cogent evidence to challenge the presumption of regularity of the conception and licensing of the 1st respondent’s proposed project. 57.It was the 1st Respondent’s submission that the proposed project will transform Kenya into a newly industrializing middle-income Country and that the burden of convenience herein lies in dismissing the subject petition which seeks to frustrate an otherwise lawful project. 58.The 1st Petitioner filed its written submissions in response to the Respondent’s submissions dated 9th February, 2026, the 1st Petitioner identified four (4) issues of response as follows: 1.Whether the re-issuance of EIA/Licence No. NEMA/EIA/SR/29911 after the denial of NEMA / EIA/PSL/ 29911 was lawful and in accordance with section 58 and 63 of the Environmental management and Coordination Act cap 387 2.Whether the 3rd Respondent acted in conflict of interest by undertaking the ESIA Study 3.Whether the Strategic Environmental Assessment ( SEA) is a pre- condition to the issuance of an EIA License 4.Whether the petitioners should be granted the prayers sought 59.On the first issue, the 1st Petitioner submits that failure to give reasons by 4th Respondent for approving EIA which initially rejected the Project in 2009 without explaining the change violates the constitutional right to fair administrative action under Article 47 (2). In addition, it submits that it was a procedural flaw and not a mere technicality but a threat to the protection of the right to clean and healthy environment and a violation of national values and principles of governance enshrined under Article 10(2) of the Constitution of Kenya 2010 on Rule of Law, transparency and accountability. 60.The Petitioner concludes that the EIA/Licence No. NEMA/EIA/SR/29911 as issued by the 4th Respondent constitutes a significant procedural flaw which would rebut the presumption of regularity thus creating an omission of their core duty and ultimately making the issuance of the said license unlawful. 61.On the second issue, it submits that the 3rd Respondent conducted the Environmental Impact Assessment for the proposed road in which it held a direct financial interest, having already secured the consultancy contract for the project design, review and construction supervision. It was its submission that project proponents are responsible for undertaking Environmental Impact Assessment as per Section 58 (2) of EMCA however such studies must be independent and objective in accordance to Rule 3(b) of the Code of practice and Professional Ethics for Integrated Environmental Assessment Experts. 62.On the third issue, the Petitioner relied on the decision in Amu Power Company Limited V Save Lamu & 6 Others (2025) KEELC 7285 (KLR) on the purpose of Strategic Environmental Assessment (SEA). The 1st Petitioner avers that Strategic Environmental Assessment (SEA) is a pre-condition of the consideration of an application for an EIA licence and relied on Section 57 A of EMCA that mandates Strategic Environmental Assessment for all policies plans and programmes (PPP) implementation. The 1st Petitioner placed reliance in the case of Mohamed Ali Baadi and Others V attorney General & 11 Others (2018) KEHC 5397 (KLR). 63.The 1st Petitioner submits that the 1st Respondent ought to have conducted a Strategic Environmental Assessment (SEA) in order to address the broader context and cumulative impacts of the Program before commencing individual project components. As such, the 1st Petitioner maintains that without an assessment, there is no credible or reliable analysis of the cumulative impact of the project. 64.On the last issue the 1st Petitioner submits that the 1st Respondent’s ESIA Report is fundamentally flawed as the report lacks a comprehensive report on the comparative analysis of the said roads, including their respective environmental, social and economic impacts. In addition, the 1st Petitioner submits that the ESIA Report fails to provide a formal and comprehensive inventory of the biological diversity and that the Report briefly refers to various bird species and mentions the presence of rhinos and elephants while discussing mitigation measures. 65.The 1st Petitioner relied on a Report written by Peter Tyrell & James R. Allan, Evaluating the socio economic Potential of road development projects around the Aberdare range: A Report for Rhino Ark” (2020) published by the Wildlife Conservation Research Unit, Department of Zoology, University of Oxford, Department of Geography & Environmental Studies, University of Nairobi and the Institute For Biodiversity and Ecosystem Dynamics ( IBED) , University of Amsterdam which report concluded that upgrading roads around the Aberdare National Park to benefit more people and will produce higher economic returns than a road over the top of the Aberdare range and that considering the low socio economic returns of the said development, appears that its construction is not worth the risk posed to biodiversity and ecosystem found within the Aberdare National Park. 66.Kenya Water Towers Agency (2nd Respondent), National Environmental Management Authority (4th Respondent) and Kenya Forest Service (4th Interested Party) filed their undated written submissions. In the said Submissions, the 2nd, 4th Respondent and 4th Interested Party identified two (2) issues for determination as follows: 1.Whether the EIA licence granted by the 4th Respondents should be revoked 2.Whether the Petitioners have made a proper case for the Court to grant the orders sought 67.On the first issue, they submit that whereas NEMA rejected the previous application, the directives by NEMA were taken into consideration and that the road has been redesigned to the satisfaction of NEMA, which issued stringent conditions to the license No. NEMA/EIA/PLS/29911 issued to the 1st Respondent and that the said EIA considered alternative routes but settled on the current one. 68.Further, they submit that the Petitioners have not provided any technical evidence to materially contradict the study and that that the two experts who undertook a desk top study from abroad demonstrated that they did not have any sufficient knowledge of the project site to dislodge the EIA Report and the mitigation conditions attached to the licence. 69.On the adverse impacts of the proposed road construction, they submit that they are farfetched and grossly exaggerated as the Petitioners have not produced any direct scientific proof to back the allegations especially the extinction of the endangered Mountain Bongo, Black Rhino and the Aberdare Cisticola. They submit that the 1st Respondent complied will all required regulations including undertaking adequate public participation and stakeholder engagement. They relied on the decision in Kopoa Developers Limited V Endesk Properties Limited & Another (Environment and Land Appeal E002 of 2024) (2024) KEELC 3963 (KLR) (16 May 2024) (Judgment) where the Court declined to cancel and revoke Environment Impact Assessment License because no grounds were established to the effect the licence was wrongfully issued or that the same was faulty. 70.On the last issue, they submit that the Petitioners have ignored mitigation conditions attached to the licence and misapplied the doctrine of precautionary principle versus sustainable development. Further they submit that issuance of EIA license is not the end in itself but rather that the 4th Respondent while discharging its statutory and regulatory mandate continue to monitor the implementation of the project to ensure that the impacts are mitigated and the environment protected. 71.Conservation Alliance of Kenya (5th Interested Party) filed their written submissions dated 8th December, 2025. The 5th Interested Party identified four (4) issues for determination as follows:1.Whether the proposed Mau Mau Lot 4: Ihithe -Ndunyu Njeru Road violates Articles 10, 11, 42 and 69 of the Constitution of Kenya 2.Whether the Respondents complied with Enviroment management and Coordination Act (EMCA) its Regulations and other Environmental laws 3.Whether the choice of the Ihithe- Ndunyu Njeru alignment constitutes a reasonable and justifiable limitation of environmental and cultural rights under Article 24 of the Constitution of Kenya 4.Whether the proposed road contravenes the Aberdare Eco System Management Plan and land use for the 72.On the first issue, the 5th Interested Party submits that the 3rd Respondent’s conflict of interest led to the underscoring of the immediate, direct, indirect, cumulative and long-term impacts of the proposed road and watered down to minimal and short term disregarding the public participation comments of experts who indicated that the impacts will undoubtedly be long term and irreversible. In addition, it submits that in absence of a conflict of interest declaration it led to biased ESIA Report and fundamentally violates Articles 10 and 47 of the Constitution of Kenya 2010 and renders the ESIA legally defective. 73.Further the 5th Interested Party submits that the 3rd Respondent acted in conflict and the Respondents violated the national values of integrity, transparency, accountability and sustainable development provided under Article 10 of the Constitution. It submits that the 3rd Respondent did not consult with the 2nd Interested Party or the larger Kenyan public on how the proposed road would affect these cultural and natural heritage values nor did the ESIA Report assess the impact on the UNESCO nomination and potential obligations under the World Heritage Convention. The 5th Interested Party submits that the road as planned violates the right to culture heritage. 74.On the second issue, it submits that while acknowledging the need for transport connectivity between two towns the Respondents proposed construction of a tarmac road constitutes a grossly, disproportionate, unnecessary and unjustifiable intrusion into right to a clean and healthy environment. It submits that the limitation fails the necessity and proportionality test because a less harmful, technically feasible and objectively superior alternative route, the Kariamu – Ndaragwa corridor exists. 75.It submits that the principle that roads should be aligned along the periphery of protected areas unless no viable alternative exists is firmly grounded in international and regional jurisprudence while relying on the decision in East African Court in African Network For Animal Welfare ( ANAW) Versus The Attorney general of the United Republic of Tanzania, reference No. 9 of 2010 which was upheld by the appellate division of the East African Court of Justice in The Attorney General of the United Republic of Tanzania Versus African Network for Animal Welfare (ANAW), Appeal No. 3 of 2014. 76.Further, it relied on the opinion of the National Green Tribunal Sitting in New Delhi in Appeal No. 12 of 2012, M.P Patil, S/O Sri Parappagouda Versus Union of India & 2 Others to underscore that the proposed benefits of the road will mostly benefit trade between the two towns to be connected whereas the adverse effects to the larger public living in Nairobi, Naivasha, Marsabit and Kenya at large. 77.On the third issue, it submits that the proposed road will lead to habitat fragmentation, increased human- wildlife conflict, introduction of alien species and the tarmac road would destroy the aesthetic, natural and pristine look of the Aberdare Ecosystem. It further submits that the proposed road whose intended purpose is to connect two towns is fundamentally and irreconcilably inconsistent with the Aberdare’s Ecosystem Management Plan, the Forest Conservation Management Act, the Kenya Wildlife Service Act and the constitutional principles governing environmental protection. 78.On the last issue, it submits that the 3rd Respondent focused on direct effect during construction and operation and failed to address cumulative, irreversible, indirect and long-term effects of the proposed road. It submits that the ESIA Report as it is failed to meet the threshold required for environmental conservation and a violation of Regulation 18 EIA Regulations and the Climate Change Act. Analysis and Determination 79.We have carefully perused and considered the Petition as well as the respective responses thereto. We have similarly considered the evidence tendered and the detailed submissions placed before us by the Learned counsel representing the parties. 80.The Petitioners instituted this Petition seeking, inter alia, a declaration that the Kenya National Highways Authority’s plan to build the Mau Mau Lot 4 – Ihithe – Ndunyu Njeru Road, traversing the Aberdares National Park and the Aberdare Forest Reserve violates Articles 10, 11, 42 and 69 of the Constitution and is therefore invalid; a declaration that development in water towers is limited to eco-tourism and research and that in national parks and conservancies like the Aberdare National Park, change to any other use is not permitted except for conservation purposes; and a permanent injunctive order restraining the Respondents from building the planned Road. 81.The Petitioners further seek a declaration that there was a conflict of interest in Norken International Limited (the 3rd Respondent) conducting the Environmental Social Impact Assessment (ESIA) study and that their acts violate Article 10 and 47 of the Constitution and that the assessment must be conducted by neutral and impartial experts. The Petitioners further urge the court to issue a structural interdict directing the 1st Respondent to prepare and submit to the court for scrutiny, within 90 days of the order, alternative routes for the road passing outside the Aberdare National Park and the Aberdare Forest Reserve; and an order directing the 4th Respondent, the 3rd Interested Party, the 2nd Respondent and the 4th Interested Party, to within 90 days of the order, prepare and present to the court for scrutiny and thereafter post and update yearly on their website, a joint inventory of biological diversity of Kenya, indicating threatened, endangered or rare species in Kenya. 82.As it turned out, this court dealt with the issue of its jurisdiction in a Ruling delivered herein on 13th March 2025 wherein the court determined that it was properly clothed with jurisdiction to hear and determine the dispute. In their submissions before the court, the parties herein raised a number of issues for determination. Having considered the pleadings and the testimonies of the witnesses, the following are the key issues that fall for determination in the petition:i.Whether or not the 3rd Respondent had acted in conflict of interest in preparing the Environmental Impact Social Assessment Report (EIA) and if so, the consequences thereof;ii.Whether or not the intended construction of the proposed Mau Mau Lot 4: Ihithe-Ndunyu Njeru Road violates Articles 10, 11, 42 and 69 of the Constitution of Kenya, 2010;iii.Whether the Proposed Road Project Requires a Strategic Environmental Assessment; andiv.Whether in the circumstances herein, the Petitioners are entitled to the Prayers sought in this Petition. I. Whether the 3rd Respondent acted in conflict of interest in preparing the EIA report and if so, the effect thereof 83.In their Petition before the court, the Petitioners seek among other prayers a declaration that the 3rd Respondent – Norken International Limited’s conflict of interest in conducting the Environmental Social Impact Assessment (ESIA) with respect to the impugned project violates Articles 10 and 47 of the Constitution and that the Environmental Impact Assessments (EIA) must be conducted by neutral and impartial experts. 84.In support of that contention the Petitioner asserts as follows at paragraphs 58 to 65 of the Petition:“Conflict of interest by Norken the EIA expert 58.Third, Norken acted in conflict of interest by purporting to conduct an environmental impact assessment for a road it had a direct pecuniary interest in. Norken holds the consultancy services contract for the design, review and construction supervision of the road. The contract is 36 months long (12 months to design and review the road) and 24 months (to supervise the constructions). 59.Norken, hence, has a direct pecuniary interest in the construction of the road. If the road is built, Norken benefits from supervising the road marks; if the road is not built Norken loses money. 60.By this conflict of interest, Norken violated Article 69(1) (f) of the constitution demanding systems of environmental impact assessment, environmental audit and monitoring of the environment. 61.Norken also flouted Article 10 of the Constitution on good governance and the rule of law. Norken further violated Chapter Six requiring those performing public duties to be objective, impartial, and avoid conflict of interest. Norken further violated Article 47 of the Constitution requiring lawful and fair administrative action which includes impartiality and the forbiddance of bias. 62.Besides, Norken violated the Code of Practice of Professional Ethics for Integrated Environmental Assessment Experts underpinned by Regulation 13(3) of the EIA Regulation. The Code of Practice requires competence, knowledge, professional conduct, consistency, integrity and ethics in preparation of environmental assessments reports in an independent, professional, objective and impartial manner. (Rule 3, Code of Practice). Under Rule 4(2) of the Code, an Environmental Expert shall act professionally, accurately, fairly and in an unbiased manner in undertaking his work. 63.Because of the conflict of interest, Norken violated Regulation 16(b) of the Environmental (Impact Assessment and Audit) Regulations requiring analysis of available alternatives including the “no project alternative”. 64.That apart, Norken plagiarized the LAPPSET study contrary to Section 9(2) of the Code forbidding an Environmental Assessment Expert from including in the report, without acknowledgement of the source, any data that is not the result of their findings; and 65.Overall, Norken violated its obligation under Article 3 to respect, protect and defend the Constitution as well as its obligation under Article 69(2) to cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. 85.As it turned out, the 3rd Respondent did not file any response to the Petition. The fact that the 3rd Respondent had prepared the EIA Report was however, undisputed. In acknowledgment of that fact, the 1st Respondent avers as follows at paragraphs 15 to 18 of the Replying Affidavit sworn on its behalf by Adams Murithi:“ 15.That the 1st Respondent states that prior to commencing the development of the subject project, it engaged the services of a duly registered and NEMA accredited firm of EIA experts, Norken International Limited, herein the 3rd Respondent, to carry out the EIA study for the purpose of lodging an application for the EIA Licence. 16.That the said EIA study was conducted by the expert in accordance with internationally and nationally acceptable standards and procedures including the EIA Regulations as provided in the Environmental Management and Coordination Act (EMCA). See a copy of the detailed EIA study Report at pages 25 – 370 of the affidavit of Nancy Ogonji. 17.That the 1st Respondent was awarded the EIA Licence by the 4th Respondent after compliance with all the requirements of EMCA and all other laws relating to the governance of the environment within the Republic of Kenya; and 18.That the subject project underwent all the mandatory stages of an Environmental Impact Assessment which includes but not limited to the screening stage, the development of the terms of reference (TOR), the Environmental Impact Assessment Study and finally, the submission of the Environmental Impact Assessment Study Report to the Respondent.” 86.Section 58(5) of the EMCA Act provides as follows:“(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 authorized 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.” 87.On the other hand, Regulation 13(1) of the Environmental (Impact Assessment and Audit) Regulations, 2003 provides that;“13(1) a proponent shall, on the approval of the terms of reference under regulation 11, submit to the Authority of the names and qualifications of the impact assessment experts appointed to undertake the environmental impact assessment study and authorized so to do in accordance with section 58(5) of the Act” 88.Testifying in support of the Petitioner’s case, Dr. Festus W. Ihwagi (PW1) told the court that there was a conflict of interest as the 3rd Respondent being the one given the contract to design and supervise the construction of the road was basically doing the ESIA report for itself. 89.We were however not persuaded that the preparation of the ESIA Report by the 3rd Respondent was out of the ordinary and/or that the same amounted to a conflict of interest. Asked in cross-examination by Prof. Mumma, Learned Counsel for the 1st Respondent, PW1 conceded that there was nothing in the Code of Practice and Professional Ethics for Environmental Assessment Experts which prohibited the designer of the road from carrying out the ESIA study report. 90.The legal regime for the issuance of EIA licences is anchored on the Constitution of Kenya particularly at Article 69(f) which mandates the State to establish systems of environmental impact assessment, environmental audit and monitoring of the environment. These systems are codified under EMCA, particularly part VI thereof as read with the relevant provisions of the Environmental (Impact Assessment and Audit) Regulations 2003, which set out the framework of environmental impact assessment, environmental audit and monitoring of the environment and the procedures and processes involved in securing the same. 91.Considering those provisions in Patrick Musimba vs National Land Commission & 4 Others (2015) KEHC 7341 (KLR) the five Judge bench held as follows:“We have no doubt that the State under Article 69 of the Constitution is enjoined to ensure sustainable development; see also the preamble to the Constitution. The State is also to ensure that every person has a right to a clean and healthy environment, however, physical development must also be allowed to foster to ensure that the other guaranteed rights and freedoms are also achieved. Such physical development must however be undertaken within a constitutional and statutory framework to ensure that the environment thrives and survives. It is for such reason that the Constitution provides for public participation in the management, protection and conservation of the environment. It is for the same reason too that the Environmental Management and Coordination Act (“the EMCA”) has laid out certain statutory safe guards to be observed when a person or the state initiates any physical development.At the core is the Environmental Impact Assessment and Study which is undertaken under Section 58 of the EMCA and the regulations thereunder. Under Regulation 17, the Environmental Impact Assessment study must involve the public. The inhabitants of any area affected by a physical development must be given an opportunity to air their views on the effects of any such development. After the Environmental Impact Assessment Study report is compiled, the same report must be circulated to the affected persons.” 92.In the matter herein, having considered the legal regime for the issuance of EIA licences, we were unable to find any law that bars an EIA expert from conducting an ESIA study for a project even where it had a direct pecuniary interest therein. Indeed, as a matter of fact, Section 58 of EMCA which regulates applications for EIA licences allows any individual, including the project proponent, to undertake the EIA study. In that respect, Section 58(2) of the EMCA provides as follows:“(2) The proponent of a project shall undertake or cause to be undertaken at his own expense an environmental impact assessment study and prepare a report thereof where the Authority being satisfied, after studying the project report submitted under subsection (1), that the intended project may or is likely to have or will have a significant impact on the environment, so directs.” 93.In our understanding, the reason Section 58 of EMCA allows any person including the project proponent, to undertake an EIA study is because the assessment of the resulting EIA study report is done by NEMA (the 4th Respondent) – which is an independent statutory body charged with assessing the adequacy of the EIA study and issuing an EIA licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management. 94.The rationale for the foregoing was explained in detail in the English case of R (on the application of)-vs- Derbyshire County Council (2003) EWMC 2775 (Admin) (07 November 2003) where it was held thus:“The Regulations envisage that the applicant for planning permission will produce the environmental statement. It follows that the document will contain the applicant’s own assessment of the environmental impact of his proposal and the necessary mitigation measures. The regulation recognizes that the applicant’s assessment of these issues may well be inaccurate, inadequate or incomplete. Hence the requirements in Regulation 13 to submit copies of the environmental statement to the Secretary of State and to anybody which the local planning authority is required to consult. Members of the public will be informed by site notice and by local advertisement of the existence of the environmental statement and be able to obtain or inspect a copy; see Regulation 17 of the Regulations and Article 8 of the Town and Country Planning (General Development Procedure) Order 1995.This process of publicity and public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. Under Regulation 3(2) the local Planning Authority must, before granting planning permission, consider not merely the environmental statement, but “the environmental information,” which is defined by Regulation 2 as “the environmental statement, including any further information, any representation made by anybody required by these Regulations to be invited to make representation, and any representations duly made by any other person about the environmental effects of the development.” 95.Consequently, and in the circumstances herein, it is our considered view that conflict of interest can only be said to occur where NEMA – the statutory entity mandated with assessing the adequacy of the EIA studies and issuing of EIA licences – were to purport to conduct an EIA study for a proposed project in which it has pecuniary interest. That was not the case in this Petition. 96.In their submission before the court, the Petitioners and the Conservation Alliance of Kenya (the 5th Interested Party) have further argued that the 3rd Respondent did not comply with Regulation 8 of the EMCA (Impact Assessment and Audit) Regulations 2025 that obliges every EIA expert to declare and sign a conflict of interest statement on the declaration page of the ESIA Report. It is therefore their case that the subject report is for that reason conflicted and unconstitutional. 97.Again, we did not find any basis for that submission. We say so because the ESIA report which is the subject of this Petition was done and concluded by the 3rd Respondent in the Year 2022-23. That was some two (2) years before the enactment of the EMCA (Impact Assessment and Audit) Regulations 2025. At the time the Report was done and concluded the applicable Regulations were the EMCA (Impact Assessment and Audit) Regulations, 2003 which did not require any such declaration of a conflict of interest. 98.It is trite law that legislation cannot apply retrospectively unless it expressly states so. Considering the issue in Macharia & Another vs Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23rd October 2012), the Supreme Court of Kenya pronounced itself on the issue thus:“ 59.Before considering this question, it is necessary to revisit the issue of retrospective or retroactive legislation. Black’s Law Dictionary 9th Edition to which we have been referred, defines retrospective law as;-“A law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights accruing, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. One that relates back to a previous transaction and gives it a different legal effect from that which it had under the new law when it occurred. 60.Most Constitutions in common law jurisdictions almost invariably frown upon retroactive or retrospective criminal statutes. This general prohibition finds expression in Article 50(2) (n) of the Constitution. That Article provides that;“Every accused person has a right not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya; or a crime under international law.” 61.As for non-criminal legislation, the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. (Halsbury’s Laws of England, 4th Edition Vol. 44 at Pg.570).” 99.In the matter before us, the Regulations cited by the Petitioners and the 5th Interested Party had no retrospective effect and we do not therefore find any basis for the claim that the 3rd Respondent acted in conflict of interest when it conducted the ESIA study Report for the subject proposed project. II. (a) Whether the issuance of an EIA Licence for the proposed Mau Mau Lot 4: Ihithe - Ndunyu Njeru Road violates the national values and the principles of governance relating to transparency, accountability and participation of the people as provided under Article 10(2) of the Constitution. 100.The Petitioners and the 5th Interested Party allege that the 4th Respondent’s licensing of the construction of the proposed Mau Mau Lot 4: Ihithe - Ndunyu Njeru Road violates the national values and the principles of governance relating to transparency, accountability and participation of the people in decision-making. On transparency and accountability, the Petitioners contend that in 2009, the 4th Respondent rejected the 1st Respondent’s request for an environmental impact assessment licence for the construction of the road, adding that in 2023, the 1st Respondent re-submitted to the 4th Respondent the same Environmental Impact Assessment Study Report [the ESIA Study Report] that was rejected in 2009 and the 4th Respondent proceeded to grant them an Environmental Impact Assessment Licence (the EIA Licence) on the basis of the same study report without explaining what material conditions had changed between 2009 and 2024. 101.The 1st Respondent’s response to the above allegation is that the EIA Licence issued to them in 2024 was based on a new ESIA Study Report. It is their case that new detailed terms of reference were developed by its duly appointed environmental experts. The new terms of reference comprehensively identified the potential areas of impact of the project, including the physical and biological environment, the existing infrastructure, land-based livelihoods, land ownership, bio-diversity, the socio-economic considerations, health, the National Park as well as the Forest Reserve that would be impacted by the project. 102.The 1st Respondent adds that the 4th Respondent subsequently acknowledged and approved the said new terms of reference vide a letter dated 21/11/2011, ref NEMA/TOR/5/2/515 and affirmed the 1st Respondent’s compliance with the mandatory scoping requirements. The 1st Respondent contends that a fresh environmental and social impact study was subsequently undertaken on the basis of the new terms of reference. It is their case that the subsequent EIA Licence was lawfully issued in 2024 on the basis of the new Environmental and Social Impact Assessment Study Report (the new ESIA Study Report) which contained, among other details: (i) full disclosure of the fauna and flora along the proposed road route and proper assessment on the environmental impact of the project as required under regulation 18(h) of the Environmental (Impact Assessment and Audit) Regulations 2003; (ii) the environmental and socio-economic aspects likely to be affected within the project foot-print; (iii) environmental issues relating to ecological baseline assessment, water quality, noise pollution, air pollution, species diversity; (iv) species distribution on landscape, breeding sites, movement of diversity (taxa); (v) detailed inventory of wildlife and plant species within the project site; and (vi) migration measures. Lastly, the 1st Respondent argues that the new ESIA Study Report was subsequently subjected to a public participation exercise in which key stake-holders participated and presented their input. 103.We have considered the rival positions on the twin paradigms of accountability and transparency in the context of Article 10(2) of the Constitution, which makes the two concepts key principles of governance in Kenya. 104.Article 10 of the Constitution provides as follows:“(1)The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—(a)applies or interprets this Constitution;(b)enacts, applies or interprets any law; or(c)makes or implements public policy decisions(2)The national values and principles of governance include—(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;(b)human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;(c)good governance, integrity, transparency and accountability; and(d)sustainable development.” 105.Transparency as a governance principle entails governance in a manner that is open, clear and accessible to stake-holders. A key requirement of transparency is that processes and information affecting people should be open to the people they affect. On the other hand, accountability as a governance principle requires that those in charge of governance, at all levels, be able to explain their actions, accept responsibility for those actions, and face consequences if they fall short. 106.In Cabinet Secretary for National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR), the Supreme Court of Kenya, while pronouncing itself on the place of the principles of accountability and transparency in Kenya’s governance framework, cautioned courts to distinguish between values and principles on one hand, and normative rules on the other hand, to avoid overprescribing duties from principles and values which are, by their very nature, open-textured. Describing normative rules as commands that require something definitive, the Supreme Court stated the following about the proper interpretation and application of the values and principles in Article 10(2) of the Constitution.“It follows that values and principles are optimizing commands that allow duty bearers to come up with suitable measures for fulfilment of the obligations that they impose, without dictating definitive or specific actions that they ought to take.” 107.On its part, the Court of Appeal in National Assembly & another v Okoiti & 44 others [2024] KECA 876 (KLR) outlined the place of accountability and transparency in Kenya’s governance framework as follows:“As was held by this court in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others (Supra) the values espoused in Article 10(2) are neither aspirational nor progressive, they are immediate, enforceable and justiciable. It is not by accident that transparency and accountability are among the core values listed in Article 10.” 108.Our understanding of the above jurisprudence is that, the national values and principles contained in Article 10(2) of the Constitution of Kenya 2010 are enforceable and justiciable. Secondly, all State organs, State officers, Public officers and all persons are obligated to come up with suitable measures for fulfilment of the obligations that arise from the above values and principles whenever they, inter alia, make or implement public policy decisions. 109.In the present dispute, the Petitioners and the 5th Respondent did not exhibit the ESIA Study Report of 2009 yet they faulted the 4th Respondent for relying on the ESIA Report of 2009 to issue the impugned EIA Licence in 2024. They only exhibited the ESIA Study Report of 2023. Had they exhibited the ESIA Study Report of 2009, the court would have been in a position to interrogate it to verify the allegations. 110.We have evaluated the evidence on record. It does emerge from the evidence presented in this petition that the impugned EIA Licence was issued in January 2024 on the basis of a new ESIA Study Report that was procured by the 1st Respondent in 2023. It is therefore not true that the 4th Respondent changed its earlier position on the project and irregularly issued the impugned EIA Licence in 2024 on the basis of the same ESIA Study Report that it had rejected in 2009. 111.Contrary to what the Petitioners and the 5th Interested Party allege, the evidence presented in this Petition indicates that new terms of reference were developed by the 1st Respondent and were approved by the 4th Respondent. A new ESIA study was subsequently conducted on the basis of the new terms of reference. A new ESIA Study report was eventually procured in 2023. The new ESIA Study Report of 2023 addressed the issues that had been raised in the 4th Respondent’s letter dated 27/10/2009 through which the 4th Respondent communicated its refusal to grant an EIA Licence to the 1st Respondent in 2009. Both the refusal letter dated 27/10/2009 and the subsequent detailed ESIA Study Report of 2023 were exhibited by Nancy Ogonje (the Executive Director of the 1st Petitioner) through her affidavit dated 22/3/2024. Consequently, the allegation that the 4th Respondent violated the constitutional imperative requiring it to put in place suitable measures of transparency and accountability in the issuance of the impugned EIA Licence in 2024 is not supported by the available evidence. 112.The Petitioners and the 5th Respondent also allege that Article 10(2) was violated in the issuance of the impugned licence in the sense that the 1st Respondent failed to undertake meaningful public participation as required under Article 10(2)(a) of the Constitution and Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003. The Petitioners contend that people living around the Aberdare Forest, conservation experts, cultural heritage institutions such as the National Museums of Kenya, and the broader public were denied meaningful participation in a decision with profound ecological, cultural and environmental implications. 113.The position of the 1st Respondent is that the ESIA Study Report that formed the basis of the impugned EIA Licence was conducted by a registered and NEMA-accredited firm of environmental impact assessment experts. It is the case of the 1st Respondent that an ESIA Study was conducted by the experts in accordance with internationally and nationally acceptable standards and procedures, including the EIA Regulations and the substantive requirements of the EMCA. The 1st Respondent further contends that upon receipt of the ESIA Study Report in April 2023, the Report was subjected to public participation. 114.The court has considered the allegation of lack of meaningful public participation. The prevailing jurisprudential principles on public participation were outlined by the Supreme Court of Kenya in British American Tobacco Kenya PLC v Cabinet Secretary for Ministry of Health & 2 others, Kenya Tobacco Control Alliance & another [Interested Parties] Mastermind Tobacco Limited [Affected Party] KESC 15 [KLR] as follows:i.As a constitutional principle under Article 10(2) of the Constitution, 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 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 hearing; written submissions can also be made. The fact that someone was not heard is not enough to annul the process.(viii)Allegations 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 processg.Capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 115.The Supreme Court of Kenya [Mutunga, CJ & P] in In the Matter of the National Land Commission (Advisory Opinion Application 2 of 2014) (2015) KESC 3 (KLR) outlined the historical context that gave rise to the constitutionalization of the principle of public participation in the following words:“The participation of the people is a constitutional safeguard, and a mechanism of accountability against state organs, the national and county governments, as well as commissions and independent offices. It is a device for promoting democracy, transparency, openness, integrity and effective service delivery. During the constitution-making process, the Kenyan people had raised their concerns about the hazard of exclusion from the State’s decision-making processes, the Constitution has specified those situations in which the public is assured of participation in decision-making processes. It is clear that the principle of public participation did not stop with the constitution-making process; it remains as crucial in the implementation phase as it was in the constitution-making process.” 116.In the present petition, the scope of public participation during the ESIA Study is outlined at page (x) of the exhibited ESIA Study Report. It is also captured at pages 104 - 113 of the Study Report. The report indicates that public participation entailed a stake-holder engagement exercise that commenced in 2022. During the exercise, the consultant identified various stakeholders of the project, such as the National Government and the County Governments stakeholders, representatives of various organizations and project affected persons along the project area. Public participation was done to develop an understanding of their stakes, interests and influences on the project. The report indicates that public participation was intended to aid in understanding the stakeholders’ views on the project and in identifying the issues that were to be taken into account in the prediction and evaluation of impacts. 117.At page 104 of the ESIA Study Report, it is indicated that stakeholders were consulted through public participation meetings, workshops, written submissions, informant interviews and questionnaires. The venues and schedule of meetings held were indicated in the exhibited ESIA Study Report. Photographs of the public engagement sessions were also exhibited. Details of workshops held with institutional stakeholders were listed in the Report. Also listed were the organizations that were involved in the public participation sessions. Details of the courtesy calls and field household surveys were also contained in the Report. 118.In her affidavit dated 22nd March 2024, Nancy Ogonje contended that the public participation which was conducted was inadequate. She pointed out that residents of the 19 Counties within the Tana River Basin which constitutes 25% of the total land mass of Kenya were not engaged in the public participation exercise. 119.However, from the evidence presented in this Petition, including Ms Ogonje’s affidavit, it does emerge that on 18/4/2023, the 1st and 4th Respondents caused a prominent notice to be published in the Daily Nation Newspaper, requesting members of the general public to submit their comments on the proposed road project. Indeed, vide a letter dated 12/5/2023, the 1st Petitioner submitted a memorandum containing detailed comments in which they urged the 4th Respondent to reject the ESIA Study Report. The 1st Petitioner’s memorandum was copied to the three Cabinet Secretaries responsible for Environment, Climate Change and Forestry; Tourism Wildlife and Heritage; and Transport and Infrastructure. The memorandum was also copied to the four Principal Secretaries responsible for Wildlife; Forestry; Environment and Climate Change; and Infrastructure. Also copied were the Director-General of Kenya Wildlife Service; the Acting Chief Conservator of Forests (Kenya Forest Service); the Director - Wildlife Research and Training Institute; the Chief Executive Officer - Kenya Water Towers Agency; the Director-General - Kenya National Highways Authority; the Chief Executive Officer - Conservation Alliance of Kenya; and the Executive Director - Rhino Ark Charitable Trust. 120.It is clear from Nancy Ogonje’s affidavit that residents of the 19 Tana River Basin Counties were properly invited vide the newspaper notice to participate in the 1st Respondent’s application for an EIA Licence. It was through the said public invitation that the 1st Petitioner managed to participate in the licensing exercise through the memorandum dated 12/5/2023. We do not, in the circumstances, agree with the view that there was no meaningful public participation in the processing of the 1st Respondent’s application for an EIA Licence. There is evidence before us demonstrating that adequate measures were put in place to ensure proper fulfilment of the requirement for public participation. Those who heeded the invitation to participate in the licensing exercise by offering their views, such as the 1st Petitioner, duly presented their views. 121.Consequently, our finding on whether there was a breach of Article 10(2) of the Constitution in the issuance of an EIA licence to the 1st Respondent for the impugned road project is in the negative. II. (b) Whether construction of the proposed Mau Mau Lot 4: Ihithe - Ndunyu Njeru Road violates Article 11 of the Constitution. 122.Article 11 of the Constitution recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. It obligates the State to: (i) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (ii) recognize the role of science and indigenous technologies in the development of the nation; and (iii) promote the intellectual property rights of the people of Kenya. 123.The Petitioners and the 5th Interested Party allege that the proposed road project violates the above constitutional framework. They contend that the Aberdare eco-system is a natural environment that is a cultural landscape that is deeply intertwined with the cultural identity, spiritual practices, traditional ecological knowledge and historical memory of the surrounding communities and the Country. They add that the Aberdare eco-system forms part of Kenya’s national heritage. They fault the ESIA Study Report for failing to make reference to cultural sites, traditional knowledge or heritage consideration. They contend that in June 2023, the 2nd Interested Party submitted the Aberdare Mountains to “the tentative list of UNESCO World Heritage Sites”. They have, however, not tendered any evidence to support the allegation of listing on the UNESCO World Heritage Sites. 124.The Respondents deny the allegation of violation of Article 11 of the Constitution and fault the Petitioners for failing to tender evidence to substantiate the allegation. 125.We have considered the allegation of violation of Article 11 of the Constitution in the context of the above constitutional framework and the evidence placed before us. In its totality, the evidence before us does not disclose the alleged violation of Article 11 of the Constitution. It was the duty of the Petitioners to present evidence that demonstrates the alleged violation or threat of violation of Article 11. 126.The Supreme Court of Kenya, in Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KESC 66 (KLR), emphasized the burden placed on a Petitioner by Sections 108 and 109 of the Evidence Act to tender evidence to prove allegations made in a Petition. It is a trite principle of law that in the absence of evidence, the allegation of violation remains an unproven allegation. Consequently, because no evidence was tendered to prove the allegation of violation or threatened violation of Article 11, we make a finding that the said allegation was not proved. II. (c) Whether the intended construction of the proposed MAU MAU Lot 4: Ihithe - Ndunyu Njeru Road violates Articles 42 of the Constitution 127.The Petitioners and the 5th Interested Party contend that the proposed construction will violate the right to a clean and healthy environment that is envisaged in Article 42 of the Constitution. They argue that construction of the road will cause harm to the Aberdare ecosystem, drain wetlands, worsen climate change and reduce the tree cover, and therefore the right to a clean and healthy environment will be violated. They state that the social harms to be occasioned by the road outweigh its economic benefits. ­­­­­They allege that clearing of tree cover along a stretch of 25 kms of closed canopy forest will increase pollution of the air and will lead to an unhealthy environment. 128.They assert that the right to a clean and healthy environment, which encompasses the preservation of ecological health, biodiversity, aesthetic values and the integrity of natural ecosystem such as the Aberdare Water Towers and the Aberdare Forest, will be affected by the road project. 129.They argue that the ESIA Study Report which informed issuance of the impugned EIA Licence acknowledges that the proposed road passes through the Aberdare ecosystem which is a rich bio-diversity forest and has major water towers. They further argue that a huge chunk of trees and vegetation, including bamboo trees, will be cleared to pave way for the road in the protected areas. For the above reasons, they contend that the proposed road will result in a violation of Article 42 of the Constitution. 130.They rely on the case of Baadi & Others vs Attorney General & 7 others; National Land Commission & 2 others (Interested Parties); Global Initiative to Economic Social and Cultural Rights & Another (Amicus Curiae) (2018) KEHC 5397 KLR, in which the court held:“Any action that would cause environmental, ecological, or water pollution should be regarded as amounting to violation of the right to life.” 131.In response, the 1st Respondent contests the above allegations. They state that the impugned project is an intended upgrade of an existing motorable road from murram to bitumen standard. They assert that the road has existed and has been in use for many decades dating to pre-independence period. They further state that the intended road project has complied with all constitutional and statutory requirements, adding that the project is in the public interest. They contend that the road will benefit the people socio-economically once it is upgraded in conformity with the conditions in the EIA Licence dated 5/1/2024. 132.The 1st Respondent states that all the concerns raised by the Petitioners and the 5th Interested Party have been exhaustively addressed through the measures provided in: (i) the ESIA Study Report; (ii) the Conditions in the EIA Licence; and (iii) the Recommendations in the Joint Technical Report dated August 2023. The 1st Respondent emphasizes that the road in question is an existing road, which is a murram road and causes more harm to water, especially during the rainy season when soil sediments are washed and deposited in the wetlands and in the water towers. They add that, in contrast, upgrading of the existing earth road to bitumen standard will prevent washing of soil to the existing wetlands and water towers, and will contribute to a clean and healthy environment. 133.The 1st Respondent asserts that although the Petitioners and the 5th Interested Party have alleged violation of Article 42, they have not proved any of the alleged violation. They further argue that the ESIA Study Report has provided exhaustive mitigation measures which they intend to implement to mitigate the impact of the upgrading of the existing road to address the concerns raised by the Petitioners and the 5th Interested Party. 134.The 1st Respondent relies on the case of Sikaliel (Being Chairman of and suing in Public Interest and on behalf of the Members of Karen Langata District Asso. vs Kenya Railways Corporation & 5 Others; National Environment Management Authority & Another (Interested Parties) (EP Pet. E028 of 2024(2025) KEELC 4927(KLR) (1st July 2025), where the court held:“….this court and the law required of the Petitioner having received a copy of the ESIA Report either from the 1st Interested Party or through the reply by the 1st Respondent to elaborate why they formed the opinion that the mitigating measures stated were not sufficient to protect them and the environment.” 135.We have considered the above rival arguments. Article 42 of the Constitution provides as follows:“Every person has the right to a clean and healthy environment, which includes the right—(a)to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and(b)to have obligations relating to the environment fulfilled under Article 70.” 136.Article 70 states that if a person alleges that a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be denied, violated infringed or threatened, the person may apply to court for redress, in addition to any other legal remedies that are available in respect to the same matter. It is in line with the above provision of Article 70(1) of the Constitution that the Petitioners filed the instant Petition, alleging that their right to a clean and healthy environment is likely to be violated by the road project. Being the persons who have alleged, the Petitioners had a duty to adduce sufficient evidence to prove their allegations. 137.We have independently evaluated the relevant ESIA Study Report and the conditions attached to the EIA Licence in the context of the allegation of violation of the right to a clean and healthy environment. The relevant ESIA Study Report and the impugned EIA Licence were exhibited as annexures to Ms. Nancy Ogonje’s affidavit. 138.Besides the affidavits and the oral evidence that were tendered, the court visited the locus-in-quo. The visit confirmed that there exists a motorable murram road that is in use. Indeed, the court and its entourage used the existing murram road. The court also confirmed that there exists an open canopy above the road which has 25 kms traversing the Aberdare Forest Reserve and National Park. The court confirmed that the project will, in the circumstances, not entail the establishment of a new road in a forest where none exists. The project will entail an upgrade of an existing motorable murram road to bitumen standard. The project will, however, entail widening of the existing motorable murram road. There is common ground that there will be some destruction of forest along the 25 km of the forest stretch of the existing road due to the upgrading. 139.Have the 1st and 4th Respondents put in place adequate mitigation measures? First, the 1st Respondent tendered evidence showing that the intended road has been redesigned to reduce its width so that the forest cover that is affected along the existing road is minimized. Secondly, at pages (xi) to (xvii) of the ESIA Study Report, the 1st Respondent has identified the likely environmental impacts of the project and has come up with clear mitigation measures. The ESIA Study Report acknowledges that the project is going to impact on the vegetation. With regard to the impact of reduced vegetation cover and above-ground biomass, the identified mitigation measures in the ESIA Study Report are as follows:“Cleared trees should be kept within the forest and should be used in order to prolong the period of carbon emission.Sites should be identified for offsetting the loss of forest cover and biomass. This will require an adoption of compensation plan.” 140.We have looked at the section of the ESIA Study Report covering Economic and Social Management and Monitoring. It identifies various impacts at various phases of the project and provides mitigation measure(s) for each identified impact. The relevant schedule of the identified impacts and the proposed mitigation measures are at pages (xii) to (xvii) of the ESIA Study Report. We have evaluated each of the identified impact and the respective proposed mitigation measures. 141.We have also looked at the conditions set out in the impugned EIA Licence. The EIA Licence contains many conditions categorized as follows: (i) General Conditions; (ii) Construction Conditions; (iii) Operational Conditions; (iv) Notification Conditions; and (v) Decommissioning Conditions. Condition 2.7 relates to forest cover and biomass. It provides as follows:“The proponent shall develop and implement a comprehensive offset and compensation plan for the 75 Ha of bamboo, 14 Ha of montane forest, and 14 Ha of moorlands with an estimated total biomass of 5,662 mg ha-1; moorland 177 mg ha-1, bamboo 4,300, and Forest has 1185 mg ha-1 that shall be lost in the construction of the road section traversing Aberdares Forest Reserve and National Park. The offset and compensation plan shall be authorized and supervised by the lead agencies responsible for the conservation and management of the National Water Towers, Forests and Wildlife. The implementation monitoring shall be reported to the Authority on annual basis through Environmental Audit reports in line with Sections 68 and 69 of EMCA, 1999.” 142.Our evaluation of the mitigation measures contained in the ESIA Study Report and in the Conditions attached to the EIA Licence is that the measures are exhaustive. If all the mitigation measures are implemented as outlined in the ESIA Study Report and in the EIA Licence, the affected environment will be safeguarded and will be clean and healthy. 143.We have considered the arguments presented by the rival parties and we concur with the holding of the court in Sikaliel case (supra), that the party alleging violation has a duty to elaborate why they formed an opinion or believed that the mitigation measures stated in the ESIA Report were not sufficient to protect them and the environment. The Petitioners have not tendered evidence to challenge the mitigation measures proposed in the ESIA Republic. 144.We have also taken into account what various courts have held in regard to construction of roads vis-a-vis the right to a clean and healthy environment envisaged in Article 42 of the Constitution. In a persuasive pronouncement in Save Lamu & 5 others vs NEMA & Another (2019) KENET 98(KLR), the National Environment Tribunal (the Tribunal), stated as follows:-“Article 42 is not a veto; the right to a clean and healthy environment does not mean that development must stop. It means that development must be sustainable.” 145.In the same case, the Tribunal held that where the EIA Licence identifies impacts and provides adequate mitigation measures, the project should be allowed to proceed, adding that the socio-economic benefits should be weighed against the environmental costs. 146.Having evaluated the evidence that was presented in the Petition, we come to the conclusion that adequate measures have been put in place to ensure that the right to a clean and healthy environment is not violated or threatened by the upgrading of the existing Ihithe - Ndunyu Njeru Road. Consequently, it is our finding that if the proposed mitigation measures are implemented, and the license conditions are enforced the construction of the said road will not violate Article 42 of the Constitution. II. (d) Whether the said construction will violate Article 69 of the Constitution 147.The Petitioners and the 5th Interested Party allege that the Respondents have not adhered to the principle of sustainable development as provided by Article 69 of the Constitution, adding that the Respondents have failed to honour their obligations in respect of the environment. They contend that the construction of the road will lead to loss of biodiversity, which is a violation of Article 69(1) (e) & (g) which obligates the state to protect genetic resources and biological diversity and eliminate processes and activities that are likely to endanger the environment. They add that, allowing the road to pass through the Aberdare Forest Reserve will result in tree cover loss, which is against Article 69 (1) (b), which obligates the state to work towards achieving and maintaining a tree cover of at least 10% of the land area in Kenya. 148.The 1st Respondent has denied the allegation of violation of Article 69 of the Constitution. In summary, their response to this specific allegation is that the impugned road project is one of the Vision 2030 road projects. The Country’s Vision 2030 Policy Programme seeks to transform the economy into a middle-income economy by the year 2030. They emphasize that environmental conservation must go hand in hand with development, adding that environmental conservation does not imply objection to or a freeze of any form of development. 149.The 1st Respondent has given a detailed breakdown of all the activities that culminated in the issuance of the impugned EIA Licence by the 4th Respondent. They emphasize that the law was fully complied with in the issuance of the EIA Licence. 150.In further answer to the allegation of violation of Article 69 of the Constitution, the 1st Respondent cites the mitigation measures contained in: (i) the ESIA Study Report; (ii) the Conditions attached to the EIA Licence; and (iii) the measures outlined in the Joint Technical Report. 151.We have considered the allegation of violation of Article 69 of the Constitution. We have also evaluated the evidence and the arguments tendered in support and against the allegation. Article 69 of the Constitution provides as follows:-“(1)The State shall—(a)ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;(b)work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;(c)protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;(d)encourage public participation in the management, protection and conservation of the environment;(e)protect genetic resources and biological diversity;(f)establish systems of environmental impact assessment, environmental audit and monitoring of the environment;(g)eliminate processes and activities that are likely to endanger the environment; and(h)utilize the environment and natural resources for the benefit of the people of Kenya.(2)Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.” 152.Have the Petitioners demonstrated the State’s abdication of its obligations under Article 69(1) of the Constitution? Having evaluated the evidence on record and the arguments that were advanced in this Petition by the Petitioners and the 5th Interested Party on one part and the Respondents and some of the interested parties on the other part, we are unable to come to the conclusion that the State has abdicated its constitutional obligations under Article 69 of the Constitution. Why do we come to this conclusion? 153.In 2009, the 4th Respondent [the State’s agency responsible for issuing EIA licences] rejected the 1st Respondent’s application for an EIA Licence for the road project. The 4th Respondent itemized the following as the reasons for the rejection:-“1)The EIA Report fails to provide alternative routes for the proposed project in order to mitigate on the identified adverse impacts on the natural forest. The proposed road re-alignment will traverse 25 km through closed canopy forest.2)The proposed project will have massive impacts on the natural forest during construction. It is possible that some endangered tree species may be affected.3)The Aberdare Forest is one of the 5 water towers and it provides water to Nairobi County and feeds Lake Naivasha which is the backbone of Kenya’s horticulture.4)The proposed mitigation measures are inadequate in terms of addressing the anticipated negative impacts.5)We have received strong objections from Kenya Wildlife Service, Kenya Forest Service, African Wildlife Foundation, Rhino Ark, Kenya Tourism Federation and EAWS. 154.The above rejection happened notwithstanding the fact that the project was one of the State’s Vision 2030 projects. 155.It took the 1st Respondent about 14 years to undertake and complete a new ESIA study based on more exhaustive terms of reference that were approved by the 4th Respondent and addressed all the areas that had been identified by the 4th Respondent in its rejection letter dated 27/10/2009. The new ESIA Study Report identified detailed anticipated impacts. For each identified impact, the Report contained specific mitigation measures. 156.Satisfied that the new ESIA Study had addressed all the concerns that they had raised in 2009, the 4th Respondent issued a conditional EIA Licence. The conditions are many and have been categorized. We have already evaluated the mitigation measures in both the ESIA Study Report and in the EIA Licence and we have made a finding to the effect that the measures are adequate and will protect and safeguard the environment if fully implemented. 157.Given the above evidence, we do not think there is a proper basis for the Petitioners’ contention that the State has abdicated its responsibilities under Article 69(1) of the Constitution, thereby violating the said constitutional framework. In making the above finding, we are guided by the principle of sustainable development: - development that meets the needs of the present generation without compromising the ability of the future generations to meet their own needs. It is clear from the 4th Respondent’s letter dated 27/10/2009; the Joint Technical Report; the ESIA Study Report; and the detailed Conditions in the EIA Licence that the State took an integrated approach that addressed the concerns that had been raised by the stakeholders, including the 1st Petitioner. 158.For the above reasons, we come to the finding that the Petitioners did not prove the allegation of violation of Article 69(1) of the Constitution by the Respondents. III. Whether the 1st Respondent was required by the law to procure a strategic environmental assessment study report [SEA report] for the proposed Mau Mau Lot 4: Ihithe – Ndunyu Njeru Road Project. 159.The Petitioners and the 5th Interested Party faulted the 1st, 2nd and 4th Respondents for failing to conduct a strategic environmental assessment (SEA) study on the proposed road project. They relied on Section 57A of the EMCA and rule 42 of The Environmental (Impact Assessment and Audit) Regulations 2003. In response, the 1st Respondent argued that a strategic environmental assessment study was not a requirement for the issuance of an EIA licence and contended that a strategic environmental assessment study was only a requirement in relation to policies, programmes and plans. 160.We have considered the above arguments and counter-arguments. A strategic environmental assessment is defined in Section 2 of the EMCA as:-“a formal and systematic process to analyse and address the environmental effects of policies, plans, programmes and other strategic initiatives”. 161.The requirement for a strategic environmental assessment was introduced into Kenya’s environmental law in 2015 through an amendment to the EMCA. The amendment introduced Section 57A which provides as follows:“57A (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.” 162.The relevant regulatory framework that existed on SEA study at the time the impugned EIA Licence was issued was regulation 42 of the Environmental (Impact Assessment and Audit) Regulations 2003. Regulation 42 provided as follows:-(1)Lead agencies shall in consultation with the Authority subject all proposals for public policy, plans and programmes for environmental implementation to a strategic environmental assessment to determine which ones are the most environmentally friendly and cost-effective when implemented individually or in combination with others.(2)The assessment carried out under this regulation shall consider the effect of implementation of alternative policy actions taking into consideration: -(a)the use of natural resources;(b)the protection and conservation of biodiversity;(c)human settlement and cultural issues;(d)socio-economic factors; and(e)the protection, conservation of natural physical surroundings of scenic beauty as well as protection and conservation of built environment of historic or cultural significance. 163.We have carefully examined both the substantive framework in the Environment Management Co-ordination Act [the EMCA] and the regulatory framework in the Environmental (Impact Assessment and Audit) Regulations 2003, which prevailed at the time the impugned EIA Licence was issued. Nothing in the substantive environmental law [the EMCA] obligated the 1st Respondent to conduct a SEA study prior to applying for an EIA licence. Nothing in the substantive law obligated the 4th Respondent to demand a SEA study report from the 1st Respondent prior to issuing an EIA licence. Nothing in the regulatory framework [the Regulations] required the 1st Respondent to procure a SEA study report. Similarly, nothing in the regulatory framework required the 4th Respondent to demand a SEA study report before issuing an EIA Licence to them. If Parliament wanted a SEA study to be a mandatory requirement prior to the issuance of an EIA licence for a road project such as the one that is the subject matter of this Petition, it could have put in place a statutory framework to that effect, the way it enacted Section 58 of the EMCA in relation to an ESIA study report. 164.The current regulatory framework on strategic environmental assessment study is The Environmental Management and Co-ordination (Strategic and Integrated Environmental Impact Assessments and Environmental Audits) Regulations, 2025. The framework was not in force when the impugned EIA Licence was processed and subsequently issued to the 1st Respondent in early 2024. It can therefore not be a proper basis for the contention that there should have been a strategic environmental assessment study prior to the issuance of the EIA Licence in early 2024. Although the above cited Regulations of 2025 did not exist and were not applicable in 2024, we have taken the liberty to examine them to understand whether a SEA study report is at the moment a requirement for the issuance of an EIA Licence for a road project. 165.The Regulations of 2025 contain the following provisions on the necessity for a strategic environmental assessment:“5. (1)No ministry, county, department, agency, institution, or private entity shall implement any policy, plan or programme without undertaking a strategic environmental assessment.(2)Every ministry, county, department, agency, institution or private entity shall submit a policy, plan or programme brief to the Authority for review. (3)The Authority shall review the policy, plan or programme brief to determine if a strategic environmental assessment for the policy, plan or programme is required. (4)Where the Authority notifies the ministry, county, (department, agency, institution or private entity that a strategic environmental assessment is required for the policy, plan or programme submitted for review under sub-regulation (2), the ministry, county, department, agency, institution or private entity shall apply to the Authority for approval of the policy, plan or programme. (5)The application made under sub-regulation (4) shall be accompanied by the fee prescribed in the Fourth Schedule.” 166.It is clear from both the pre-2025 and the post-2025 legal frameworks that a strategic environmental assessment is a statutory assessment that is undertaken for the purpose of informing policies, plans and programmes that the government/public institutions/private entities intend to implement. Secondly, under the law that prevailed in 2024, a strategic environmental assessment study was not a mandatory requirement for the granting of an EIA Licence for a road project such as the one in the present dispute. 167.Even if it were the case that a strategic environmental assessment study was required for the general implementation of policies, plans and programmes such as the Vision 2030 which informed the conceptualization of the contested project, the Cabinet Secretaries responsible for relevant policies, programmes and plans were not sued in this Petition. They have not been heard in the Petition. Under Kenya’s legal system, they cannot be condemned unheard. 168.The totality of the foregoing is that, under the law that existed in 2024, the 1st Respondent was not obligated to procure a strategic environmental assessment study report for the purpose of the EIA Licence. That is our finding on the issue. 169.It follows that we did not find any merit in the Petition. Accordingly, we hereby dismiss it entirely. 170.This was a public interest litigation. Consequently we award no costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2026.....................................L. N. GACHERUPRESIDING JUDGE......................................B. M. EBOSOJUDGE....................................J. O. OLOLAJUDGEIn the Presence of:Mr. Okoth holding brief for Ms Gitari for the 1st PetitionerMr. Ochiel Dudley for the 2nd to 4th PetitionersMr. Agwara for the 1st Respondent and holding brief for Eredi for the 2nd and 4th Respondents and 2nd and 4th Interested PartiesCourt Assistants: Julie, Valentine and Boniface