https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5077

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ENVIRONMENT & LAND CASE NO. E010 OF 2026** MUGAMBI IMANYARA………………….…1ST PETITIONER/APPLICANT CHARLES MUTUMA MBOGORI………..…2ND PETITIONER/APPLICANT MWENDA KIRERA …………………………3RD PETITIONER/APPLICANT MICHAEL KOOME………………………….4TH PETITIONER/APPLICANT DOUGLAS MWITI………………………….5TH PETITIONER/APPLICANT VERSUS THE COUNTY GOVERNMENT OF MERU………….…1ST RESPONDENT KENYA FOREST SERVICE………………………………2ND RESPONDENT THE CABINET SECRETARY ENVIRONMENT, CLIMATE CHANGE AND FORESTRY……………...…..3RD RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ………………………….4TH RESPONDENT THE HONOURABLE ATTORNEY GENERAL .……...…5TH RESPONDENT **RULING** 1. Before me is the Notice of Motion application dated the 16.06.2026 brought pursuant to various provisions of the law. The provisions include: **Articles 22, 23, 35, 42, 69, 70 and 258 of the Constitution, 2010; Section 3, 108 and 111 of the Environment Management and Coordination Act [EMCA] ; Sections 44, 46, 47 48, 49,50, 51, 52 , 53 and 58 of the Forest Conservation and Management Act, 2016; and Rules 23 and 24 of the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules.** 2. The reliefs sought *vide* the application are: 3. ***………...……………………………………………………...Spent.*** 4. ***Pending the inter-partes hearing and determination of this application, a temporary conservatory order and injunction be issued restraining the respondents, whether by themselves, their servants, agents, employees, contractors or any person acting under their authority, from excising allocating, alienating, surveying, leasing, clearing, constructing upon, developing or facilitating and airstrip, state lodge, gold course or related facility.*** 5. ***Pending the inter-partes hearing and determination of this application, a temporary conservatory order be issued restraining the respondents, whether by themselves, their servants, agents, employees, contractors or any person acting under their authority, from excising allocating, alienating, surveying, leasing, clearing, constructing upon, developing or otherwise interfering with any portion of Imenti Forest.*** 6. ***Pending the inter-partes hearing and determination of this Petition, this Honourable court be pleased to suspend and/or stay the implementation of any decision, resolution, approval, lecence, permit, agreement, development plan, procurement process or administrative action relating to the proposed excision and development of Imenti Forest.*** 7. ***Pending the inter-partes hearing and determination of this Petition, an order of status quo be issued directing that the character, ecological condition and legal status of Imenti Forest be preserved and maintained.*** 8. ***The respondents be directed to disclose the file in Court within fourteen [14] days, all approvals, environmental impact assessments reports, licenses, permits, maps, acreage surveys, feasibility studies, public participation records, agreements and all documents relating to the proposed budgets.*** 9. ***This Honourable court be pleased to authorize inspection of affected portions of Imenti Forest by the parties and any experts appointed by the court for purposes of preparing a status report.*** 10. ***Cost of this application be provided for.*** 11. The subject application is predicated on various grounds. The grounds are: The Imenti Forest is a duly gazetted public forest; the forest is duly protected *vide* the **Forest Conservation and Management Act, 2016**; the Forest is equally protected *vide* the **Constitution, 2010**; the boundaries of the forest cannot be altered without compliance with the provisions of the **Forest Conservation and Management Act**; however, the Respondents have since commenced illegal activities within the forest; the activities complained of are bound to interfere with the forest; the threatened developments are bound to affect the water catchment tower; the actions shall also impact on the ecological sustainability of the forest and the biodiversity. 1. Additionally, the applicant has posited that the impugned actions have equally been undertaken without public participation and involvement of the people of the county of Meru. Moreover, it has been contended that the threatened actions are being undertaken without due regard to the principle of sustainable development; and without the requisite environmental social impact assessment license [ESIA]. 1. The application is supported by two affidavits. The Affidavits have been sworn by Mugambi Imanyara, the First Petitioner/ Applicant. The 1st affidavit is sworn on the 16.06.2026. The deponent of the supporting affidavit has reiterated the grounds contained in the body of the application. In particular, the deponent has averred that the impugned projects are bound to impact upon and affect the ecological sustainability of the Mount Kenya Ecosystem. 1. The second affidavit is sworn on the 21.07.2026. The said supplementary affidavit has responded to the replying affidavit sworn by the County Secretary- County Government of Meru. Pertinently, the deponent of the supplementary affidavit has averred that the county government of Meru, is actively involved in the activities relating to the impugned projects. In addition, the deponent has averred that the Governor of Meru Generated a letter to the Principal Secretary Ministry of Environment, Climate Change and Forestry, seeking excision of a further 100 acres out of the forest for purposes of a golf course. 2. Moreover, it has been posited that the Governor of Meru has also purported to appoint members of join the presidential implementation team, in an endeavor to facilitate the actualization of the project. Besides, it has been averred that the impugned projects are being undertaken without public participation or at all. 3. The application has been opposed by the 2nd, 3rd and 5th respondents. The named respondents have relied on the replying affidavit sworn by Alex Lemarkoko sworn on the 30.06.2026. The deponent of the replying affidavit has averred that Upper Imenti forest constitutes part of the forest reserve; the Upper Imenti forest falls within the mandate of the 1st and 2nd respondents; the government is desirous to undertake the proposed construction of an air strip; state lodge; golf course ; and extension of the Meru by pass road; the proposed infrastructural development are still at the preliminary stages of evaluation; the government shall comply with all the statutory and constitutional safeguards; the activities complained of have not commenced; the complaints by the petitioner are premature; the petitioner has not met the requisite threshold for the grant of the conservatory orders; and the proposed projects are in the interests of public. 4. Furthermore, the deponent has also averred thus: The proposed Air strip would be essential to tame forest fire out brake at Upper Imentiforest; that the forest is prone/vulnerable to wild fires; the proposed air strip would offer logistical support during rescue and evacuation operations; and the proposed airstrip would also facilitate the rehabilitation efforts in the degraded forest areas. 5. Other than the foregoing, the deponent of the replying affidavit has also posited thus: The government has undertaken public participation; the public participation involves various stakeholders; the public participation was in favor of the intended projects; and the government shall continue to undertake public participation prior to the execution/implementation of the proposed projects. 1. Finally, the deponent of the replying affidavits has averred thus: The proposed projects has far- reaching economic and social value [significance] to the people of Meru; the proposed project shall enhance infrastructural communication and the economic benefit far outweigh the environmental concerns /consideration being raised by the petitioner. 2. The 1st respondent has opposed the application *vide* a replying affidavit sworn by one David Baariu. The affidavit is sworn on the 03.7.2026. The deponent has averred that: The Upper Imenti forest constitute[s] part of public land; the public land falls within the auspices of the national government; the County Government of Meru has no role in the proposed projects; that the County Government of Meru has been mis-joined in the matter; the petition does not disclose any reasonable cause of action against the 1st respondent; the petitioner has not met the threshold for the grant of the conservatory orders; and the orders sought are discretionary in nature. 3. Additionally, it has been averred thus: the proposed projects are still at the preliminary stages of evaluation; the proposed projects have not been commenced; that the requisite statutory and constitutional safeguards shall be complied with; and that the application and the petition are premature. 4. The subject application came up for directions on the 30.06.2026, whereupon the court issued directions pertaining to and concerning the expedited hearing of the application. The directions of the court were: The application shall be canvassed by way of written submission; the applicants shall file and serve written submissions within 7 date of the directions; the respondents shall file and serve written submissions from the date of service; and the applicants shall be at liberty to file and serve rejoinder submissions [if any] within 3 days of service. 5. The applicants’ filed written submissions dated the 21.07.2026. The applicant haves raised four [4] key issues. The issues are: Whether the applicants have established and demonstrated an arguable/pre facie case against the Respondents; whether the petition shall be rendered nugatory unless the orders sought are granted; whether the public interests favour[s] the grant of the conservatory orders; and whether the petition discloses a reasonable cause of action as against the 1st Respondent. 6. The 1st Respondent filed written submissions dated the 14.07.2026. The 1st respondent has raised four key issues. The issues are: Whether the application discloses an arguable prima facie case as against the 1st respondent; whether the petition will be rendered nugatory if the orders sought do not issue; whether the public interest favors the grant of the orders sought; and whether application is, in any event, premature. 7. Thereafter learned counsel for the 1st Respondent has cited assorted decisions to underpin the submissions. The decisions cited are: **Munya versus Kithinji and 2 others [2014] KESC 30; Gitau and 635 others versus Principal Secretary Ministry of Lands, Public Works , Housing and Urban Development and 5 others [2023] KEELC; Adeba and 17 others versus National Land Commission and 4 others; Nairobi City County [interested party] [2024] KEELC; Nkatha and 76 others versus the District Surveyor – Isiolo County and 7 Others; Kaindio and 565 others [2025] KEELC; and Kassam and 12 others versus Exotic Real Estates Limited and 12 others [2026] KEELC,** respectively. 8. Simply put, learned counsel for the 1st respondent has contended that the petition does not raise any reasonable cause of action as against the 1st Respondent, insofar as the Upper Imenti forest does not fall under the mandate of the County Government of Meru. In addition, it has been posited that the actions complained of, are yet to commence and hence both the petition and the application, are premature and thus legally untenable. 9. The 2nd , 3rd and 5th Respondents have filed written submissions dated the 15.07.2026. The named of respondents have canvassed four [4] key issues. The issues are: The applicant has not met the threshold for the grant of the conservatory orders; the proposed projects are still at the preliminary stages of evaluation; the application by the applicant is premature; and the public interest militates against the grant of the conservatory orders. 10. Learned counsel for the 2nd, 3rd and 5th respondents [the named respondents], has thereafter cited and referenced assorted decisions to buttress the submissions. The decisions include: **The Board of Management of Uhuru Secondary School versus The City County Director of Education and 2 others [2015] eKLR; Center for Rights Education and Awareness [CREAW] versus the Speaker of the National Assembly and 2 others [2017] eKLR; Gatirau Peter Munya versus Dickson Mwenda Kithinji and 2 others [2014] eKLR; Martin Nyaga Wambora versus the Speaker of the County Assembly of Embu and 3 others [2104] eKLR and IEBC versus National Super Alliance – Kenya [NASA] and 6 others [2017] eKLR.** 11. *In a nutshell*, learned counsel for the 2nd, 3rd and 5th Respondents has submitted that the subject application is not only premature but same is devoid of merits and legally untenable. The court has been invited to dismiss the application. 12. Having reviewed the Notice of Motion Application [The Application], the supporting affidavits thereto; the responses on behalf of designated respondents; and upon consideration of the written submissions by /on behalf of the respective parties, three [3] key issues emerge for determination. The issues are: Whether the petition discloses a reasonable cause of action as against the 1st respondent or otherwise; whether the petition by the applicant discloses /exhibits a prima facie case; and whether the failure to grant the conservatory orders shall defeat the petition or otherwise. 13. Regarding the first issue, learned counsel for the 1st respondent has submitted that the petition beforehand does not disclose any reasonable cause of action as against the 1st respondent. In particular, it has been contended that the Upper Imenti Forest [the forest] constitute public land under the National Government. To this end, learned counsel for the 1st respondent had referenced the Provisions of **Articles 62 and 63 of the Constitution, 2010.** 14. Furthermore, learned counsel has submitted that the alteration of the boundaries of the forest and the excision of portions thereof, if any, are functions of the National Government and the various states agencies. It has been contended that the county Government of Meru has no role in respect of the activities complained of. In this regard, learned counsel has submitted that the petition as against the 1st respondent is premature and misconceived. 15. Learned counsel for the applicants’ has relied on the contents of the supplementary affidavit and posited that the county government of Meru is actively involved in the offensive projects. In particular, learned counsel has referenced the various correspondence generated by the Governor- Meru County Government and wherein the same was inter alia seeking for excision of a further 100 acres out of the forest, for purposes of the golf course. 16. Learned counsel for the applicants’ has equally referenced the various engagements that were undertaken between the Governor – Meru County and the Principal Secretary in the Ministry of Environment Climate Change and Forestry. It has been posited that the County Government has been properly impleaded and that a cause of action has been duly established. 17. I have examined the petition; the affidavit in support of the petition; the supplementary affidavit thereto; the annextures that have been referenced; the various engagements between the Governor – County Government of Meru and the P S – Ministry of Environment, Climate Change and Forest; and I wish to point out that the totality of the evidence, shows some level of involvement of the County Government of Meru in the offensive Activities. 18. Additionally, it is also important to highlight that shortly after the filing of the subject petition, the County Government of Meru purported to commission the undertaking of the public participation, as pertains to the impugned projects. I am aware that this court proceeded to and issued orders restraining the public participation, that was intended to sanitize [sic] the activities that that has previously been commenced. 19. The bottom line is that the petition indeed discloses a reasonable cause of action as against the respondents, including the 1st respondent. Moreover, it is not lost on me that Upper Imenti Forest fall within the jurisdiction of the County Government of Meru and by dint of **Sections 34 and 37 of the Wildlife Conservation and Management Act, 2016**, no action can be taken as pertains to the forest and the national reserve, without its involvement. 20. Other than the foregoing, it is also worthy to point out that the utilization and exploitation of the environment and the natural resources, including the Upper Imenti Forest, is supposed to be undertaken sustainably, and for the benefits of the people of Kenya. I dare add that the people of Meru County who are represented by the 1st respondent, do have a say in the exploitation of the resources in terms of **Article 69 of the Constitution, 2010.** 21. Considering the foregoing, I think I have said enough to demonstrate that the petition clearly establishes a reasonable cause of action as against the 1st respondent. In any event, there is no gain saying that the petition can still be redeemed by way of amendments, to cure any deficiencies that may inflict same. 22. Before concluding on this issue, it is apposite to reference the holding of the court in the case of **Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR),** where the court of Appeal highlighted the meaning of a cause of action. The court stated thus: **“*A cause of action is a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. See Letang vs Cooper[1964] 2 All ER 929 at 934, per Lord Diplock. Lord Esher, M. R. in the case of Read vs Brown (1888), 22 QBD 128, defined a cause of action as:-“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court”.*** 1. Simply put, it is my finding that there is a cause of action that has been established against the 1st respondent. As to whether the petition shall eventually succeed against the 1st respondent, is a different matter. Same can only be engaged with during the plenary hearing. Moreover, learned counsel for the 1st respondent shall still be at liberty to pursue the issue vide the requisite application, subject to advise, if at all. 2. Next is the issue as to whether the petition raises a prima facie case? It is imperative to reiterate that any applicant, the current applicants not excepted, who seek to procure a conservatory order, are obligated to demonstrate/establish the existence of an arguable case, popularly, referenced as a prima facie case. The requirements pertaining to proof of a prima facie case, or an arguable case, has been underscored in a plethora of decisions. 1. In the case of **Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR)**, the court [Per J. L Onguto – Judge as he then was] [may his soul rest in peace] stated as here under: **Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]:** ***“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.*** ***It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others –v- The Attorney General (Supra) stated as follows:-*** ***“I would agree with my brother that an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success” (emphasis).*** 1. Furthermore, the necessity to demonstrate an arguable case, which was baptized/characterized as the inherent merits of the case, was underscored in the case of **Munya v Kithinji & 2 others [2014] KESC 30 (KLR).** The supreme court highlighted the principles in the following terms: **7. Conservatory orders bare a more decided public-law connotation: for they are orders that facilitate orderly functioning within public agencies, as well as uphold the adjudicatory authority of the Court in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues like “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay.** **8. Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.** 1. Have the applicants’ established an arguable case on the basis of the petition or otherwise? To start with, the applicants have contended that the impugned projects has been commenced prior to and before compliance with the mandatory provisions of **Sections 18, 34 and 37 of the Wildlife Conservation and Management Act, 2016**; and **Sections 44,45 and 46 of the Forest Conservation and Management Act, 2016.** The provisions of **Sections 34 and 37 of the Act** [*supra*] are couched in mandatory terms. In addition, the said provisions provide an elaborate process that must be complied with the boundaries of a gazzetted forest/ National reserve can be altered and or adjusted. 2. Additionally, the petitioner has also highlighted the issue that the implementation of the project has been commenced without obtaining the requisite approval from the national environment management authority [NEMA]. In particular, it is important to highlight the provisions of **Section 58 of the EMCA Act, 1999 [2015].** 3. For brevity, the sections under reference stipulate thus: ***57A. Strategic Environmental Assessment*** ***(1)All Policies, Plans and Programmes for implementation shall be subject to Strategic Environmental Assessment.(2)For the avoidance of doubt, the plans, programmes and policies are those that are—(a)subject to preparation or adoption by an authority at regional, national, county or local level, or which are prepared by an authority for adoption through a legislative procedure by Parliament, Government or if regional, by agreements between the governments or regional authorities, as the case may be;(b)determined by the Authority as likely to have significant effects on the environment.(3)All entities shall undertake or cause to be undertaken the preparation of strategic environmental assessments at their own expense and shall submit such assessments to the Authority for approval.(4)The Authority shall, in consultation with lead agencies and relevant stakeholders, prescribe rules and guidelines in respect of Strategic Environmental Assessments.[Act***[***No. 5 of 2015***](https://kenyalaw.org/akn/ke/act/2015/5)***, s. 42.]*** ***58. Application for an Environmental Impact Assessment Licence*** ***(1)Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before for an financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.*** ***(2)The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.*** ***(3)The environmental impact assessment study report prepare under this subsection shall be submitted to the Authority in the prescribed form, giving the prescribed information and shall be accompanied by the prescribed fee.*** ***(4)The Cabinet Secretary may, on the advice of the Authority given after consultation with the relevant lead agencies, amend the Second Schedule to this Act by notice in the Gazette.*** ***(5)Environmental impact assessment studies and reports required under this Act shall be conducted or prepared respectively by individual experts or a firm of experts authorised in that behalf by the Authority. The Authority shall maintain a register of all individual experts or firms of all experts duly authorized by it to conduct or prepare environmental impact assessment studies and reports respectively. The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee*** ***.(6)The Director-General may, approve any application by an expert wishing to be authorised to undertake environmental impact assessment. Such application shall be made in the prescribed manner and accompanied by any fees that may be required.*** ***(6A)The Cabinet Secretary in consultation with the Authority shall make regulations and formulate guidelines for the practice of Integrated Environmental Impact Assessments and Environmental Audits.*** ***(6B)The Cabinet Secretary shall make regulations for the accreditation of experts on environmental impact assessments.*** ***(7)Environmental impact assessment shall be conducted in accordance with the environmental impact assessment regulations, guidelines and procedures issued under this Act.*** ***(8)The Director-General shall respond to the applications for environmental impact assessment license within three months.*** ***(9)Any person who upon submitting his application does not receive any communication from the Director-General within the period stipulated under subsection (8) may start his undertaking.*** ***(10)A person who knowingly submits a report which contains information that is false or misleading commits an offence and is liable on conviction, to a term of imprisonment of not more than three years, or to a fine of not more than five million shillings, or to both such fine and imprisonment and in addition, his licence shall be revoked.*** 1. The 2nd 3rd and 5th respondents, who are essentially the proponents of the project, have not demonstrated that same have complied with or adhered to the requirements of the provisions of **Sections 57A and 58 of the EMCA Act 1999 [2015].** In the absence of the requisite approval, the project which has since been commenced appears [and I say, appears] to be contrary to the prescription of the law. 2. Additionally, there is the contention that the project, or better still the proposed project, as the 2nd, 3rd and 5th respondents would want to call it, is bound to culminate to excision of the forest and thus lead to deforestation. The legal implications of such actions, may lead to several consequences, including violation of the principles espoused vide **Article 69 of the Constitution, 2010.** 3. On the other hand, there is also the weighty arguments, touching on and concerning the quality of public participation, if any, was undertaken. The applicants’ posit that the impugned project is being undertaken, without public participation and involvement of the key stake holders. It has been contended that in the absence of the public participation, the offensive project is unconstitutional. 4. The 2nd, 3rd and 5th respondents, have maintained that same undertook public participation and to this end, same [the named respondents] have exhibited minutes alluding to public participation. 5. The question that does arise and which the court will have to interrogate, touches on the quality of the public participation; whether there was prior public awareness; and whether the key stake holders including the applicant was involved. This issue cannot be determined at the interlocutory stage. It will require examination of the evidence during a plenary hearing. 6. Be that as it may, I wish to point out that the question of public participation, is yet another critical ingredient that works in favor of the applicants. In the absence of public participation, in the manner contended by the applicants, then a prima facie case does arise. 7. The importance of public participation and the parameters [guidelines] to be deployed in ascertaining whether the scope of public participation, met the constitutional threshold, was highlighted by the supreme court in the case **British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR).** The court highlighted the following: ***From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under section 3 of the***[***Supreme Court Act***](https://new.kenyalaw.org/akn/ke/act/2011/7/eng%402022-12-31)***, we would like to delimit the following framework for public participation:*** ***Guiding Principles for public participation*** ***(i)a constitutional principle under article 10(2) of the***[***Constitution***](https://kenyalaw.org/akn/ke/judgment/kehc/2015/5590)***, public participation Applies to all aspects of governance.*** ***(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.*** ***(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.*** ***(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.*** ***(v)Public participation is not an abstract notion; it must be purposive and meaningful.*** ***(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.*** ***(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.*** ***(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.*** ***(ix)Components of meaningful public participation include the following:*** ***a. clarity of the subject matter for the public to understand;*** ***b. structures and processes (medium of engagement) of participation that are clear and simple;*** ***c. opportunity for balanced influence from the public in general;*** ***d. commitment to the process;*** ***e. inclusive and effective representation;*** ***f. integrity and transparency of the process;*** ***g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.*** 1. On the basis of lack of public participation, in the manner posited by the applicants, I find and hold that there is an arguable case. Simply put, the applicants have exhibited what ex facie [on the face of it] is arguable. In addition, the petition has inherent merits, which would require investigations, during the plenary hearing. 2. Before concluding on this issue, it suffices to reference **Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR),** where the court of Appeal highlighted the meaning of a prima facie case. 3. It was stated thus: ***Prima facie” is a Latin phrase for “at first sight”, whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried”, “a question which is not vexatious or frivolous”, “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332.*** ***31.Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words:“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”*** 1. The next issue relates to whether the failure to grant conservatory orders, will defeat the substratum of the petition. To begin with, the crux of the petition is the preservation and conservation of the Upper Imenti forest, which constitute[s] part of the wider Mount Kenya ecosystem. In addition, it is also not lost on me that the substratum of the petition also entails the conservation of the environment in accordance with the provisions of **Article 42 of the Constitution, 2010.** 2. Then there is the contention that the intended excision of the Upper Imenti forest and the construction of the state lodge; the air strip; and the golf course, will culminate into deforestation. A question has been raised as pertains to the provisions of **Article 69 [a] and [c] of the Constitution, 2010.** The constitution commanded that the state ensures and takes positive measures towards a forestation. Constitutionally, the acreage comprising of forest should be equal to 10% of the land mass. 1. We are yet to reach there, despite the constitution having lived with us for more than 16 years. However, the apprehension at the foot of the current petition, is to the effect that instead of taking positive steps forward, there appears to be backward steps. The question that shall be addressed is whether the impugned projects may [I say may] impact on the **Article 69 Principles.** 2. Other than the foregoing, there is the principle of sustainable development. The principle herein postulates that developments, like the one in question, ought to take into account Environmental consideration. There is the need to utilize and exploit the environment in such a manner that would take care of the future generations. The court will be called upon to interrogate whether the principle of ecological sustainable development has been considered. 3. Additionally, the petition raises the impact of the projects on the water catchment and the general effects, including Climate resilience; and remission of GHC gases, into the atmosphere. These are issues that will be interrogated. 1. The bottom line is to the effect that the project in question, will have ripple effects, on the environment and thus the continuation thereof, before the subject petition is heard and determined, will no doubt defeat same. I hold the view that a failure to grant the conservatory orders, would be tantamount to driving the petitioners away from the seat of justice, albeit prematurely. 2. Finally, I am alive to the precautionary principle. The principle herein has been defined *vide* **Section 3 [5] of the Environment Management and Coordination Act, 1999 [2015].** The section states thus: **In exercising the jurisdiction conferred upon it under subsection (3), the Environment and Land Court shall be guided by the following principles of sustainable development—** **(a)the principle of public participation in the development of policies, plans and processes for the management of the environment;** **(b)the cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law;** **(c)the principle of international co-operation in the management of environmental resources shared by two or more states;** **(d)the principles of intergenerational and intragenerational equity;** **(e)the polluter-pays principle; and** **(f)the pre-cautionary principle.** 1. *In a nutshell*, I find and hold that the grant of the conservatory orders, will operate to preserve the substratum of the petition. It will also vindicate the rights of the petitioners in terms of **Article 48 and 50 [1] of the Constitution, 2010.** In addition, it shall ensure equality of arms, as espoused in **Article 27 [1] and [2] of the Constitution, 2010.** **Conclusion** 1. The applicants herein approached the court seeking conservatory orders to prohibit the commencement and undertaking of the offensive projects. It was incumbent upon the applicants to demonstrate inter alia, that the petition has inherent merits and thus worthy of investigations during the plenary hearing. Pertinently, proof of the inherent merits [arguable petition] is a critical precondition, to the granting of a conservatory order. 2. I beg to state that the applicants have indeed espoused cardinal issues, which would warrant due interrogations and investigations. The issues include: lack of public participation; threat to the ecological sustainability of the wider Mount Kenya Ecosystem, threat to the water catchment area; threat to the clean and health environment; and non-compliance with **EMCA Act, 1999 [2015].** 3. In short, the applicants have met the threshold. In any event, there is no gainsaying that a failure to grant the conservatory orders, may [and I say may] lead to irreversible consequences. Environmental issues, and concerns are far reaching; and even when the scientific loss is not foreseeable, the precautionary principle commands due intervention. **Final orders:** 1. Consequently, and in the premises, the final orders that commend themselves to the court are: 2. ***The Application dated 16.06.2026 be and is hereby allowed as hereunder.*** 3. ***There be and is hereby issued a conservatory order, barring the respondents jointly and or severally from undertaking the implementation of any decision, resolution, approval, license, permit, agreement, development plan, procurement process or administrative action relating to the proposed excision and development of Imenti Forest, pending the hearing and determination of the petition.*** 4. ***There be and is hereby issued an order of status quo directing that the character, ecological condition and legal status of Imenti Forest be preserved, conserved and maintained, pending the hearing and determination of the Petition.*** 5. ***Prayers [6] and [7] of the Application dated 16.06.2026 are declined.*** 6. ***Costs of the Application shall abide the outcome of the Petition.*** 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo Mr. Omariba holding brief for Mr. Maranya for the Petitioners/Applicants. Mr. Boniface Mwereru for the 1st Respondent Mr. Erick Obura for the 2nd, 3rd and 5th Respondents. N/A for the 4th Respondent