https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5332

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELC JUDICIAL REVIEW MISC. APPLICATION NO. E001 OF 2025** **IRIAINI TEA FACTORY COMPANY LIMITED….......….…. APPLICANT** **AND** **THE COUNTY ASSEMBLY OF NYERI….….…...……........RESPONDENT** **AND** **HON. EUNICE WAGAKI WANDERI** **MCA KARIMA WARD…………………………...1ST INTERESTED PARTY** **THE COUNTY GOVERNMENT OF NYERI.....2ND INTERESTED PARTY** **INSPECTOR GENERAL OF POLICE……….….3RD INTERESTED PARTY** **RULING** 1. The Applicant herein filed an application under Chamber Summons dated 1st December 2025, seeking the following orders: 2. **Spent** 3. **That this Honourable Court be pleased to grant leave to the Applicant to initiate proceedings for an Order of prohibition through judicial review, thereby prohibiting the Respondents, their agents, and/or themselves from interfering with the harvesting of Eucalyptus Trees cultivated within an 80-acre area of the Karima Hill Forest. The Othaya Town Council leased this forest to the Applicant on 31st December, 1998.** 4. **That this Honourable Court do grant leave to the Applicant to file proceedings for an Order of certiorari by way of judicial review, to remove and place before this Honourable Court the findings, recommendations and decision of the 1st Respondent’s Committee on Environment and Natural Resources dated 11th June 2025, for the purpose of quashing the said decision.** 5. **That this Honourable Court do grant leave to the Applicant to file proceedings for an Order of Mandamus by way of judicial review to compel the Inspector General of Police to provide security and ensure peace during the Applicant's harvesting of Eucalyptus trees grown within 80 acres of the Karima Hill Forest leased to the Applicant by the Othaya Town Council.** 6. **The leave so granted does apply as a stay of the decision made by the 1st Respondent on 11th June 2025.** 7. **That the costs of this Application be in the cause.** 8. The Applicant also filed a Statement of Facts and a Verifying Affidavit in support of their application for leave to file Judicial Review Orders. Boniface Kariuki, Factory Manager at the Applicant herein, swore a Verifying Affidavit. 9. He deposed that, before 1998, the records in his possession show that the Applicant and the Othaya Town Council had a good working relationship, under which the Council allowed the Applicant to harvest trees for wood fuel for use in its factory. 10. This relationship culminated in a meeting of all stakeholders of Karima Hill and the Othaya Town Council on 11th September, 1998, at which it was decided that a formal agreement was needed to regulate the engagement between the parties. 11. Consequently, on 7th January, 1999, the Applicant entered into a lease agreement dated 31st December, 1998 with the Othaya Town Council (now defunct) to lease 80 acres within the Karima Hill forest for the purpose of establishing its own fuel-wood plantation for use by the Applicant’s factory. 12. The lease agreement was for 30 years; the Applicant was to pay the council an annual rent of Kshs. 50,000/= for the use of the land, and in return it was to use the 80 acres of land on the Hill to plant such seedlings as, in its own opinion, were best suited for fuel, and to mature the tree plantation with due care and prudence as required to maintain the forest environment. 13. The Applicant and the Council also agreed that, after harvesting trees for fuel, the Applicant shall ensure that the forest is maintained. Either party may terminate the agreement by giving the other 3 years' written notice. 14. After the promulgation of the new Constitution in 2010, all the assets, liabilities and agreements of Othaya Town Council were vested in the 2nd Respondent, with the 1st Respondent having oversight authority under the provisions of the Intergovernmental Relations Act, 2012, and an accompanying Gazette Notice No. 2701 of March 24, 2017. 15. It is deposed that the Applicant took over the 80 acres of Karima Hill forest on 1st January, 1999, planted Eucalyptus seedlings, nurtured them with due care and prudence, and maintained the forest environment until the trees were ready for harvesting. Further, during the term of the lease, the Applicant has paid all rent due under the Lease Agreement to the 2nd Respondent. 16. However, in early 2025, when the Applicant began harvesting the trees for fuel, the Interested Party, unaware of the agreement between the Othaya Town Council and the Applicant, petitioned the 1st Respondent to halt the harvesting, ostensibly to safeguard the environment of Karima Hill Forest. The Respondent and the 1st Interested Party have also incited the public against the Applicant, thereby preventing the Applicant from harvesting its trees. 17. On 11th June 2025, the Respondent's Committee on Environment and Natural Resources made recommendations which, among other things, halted further deforestation, thereby preventing the Applicant from harvesting trees it had planted and nurtured, and was harvesting to fuel its plant pursuant to the terms of the Lease Agreement of 31st December, 1998. 18. The Applicant argues that the 1st Respondent’s decision is illegal, as it was made without any legal basis and without considering the terms of the Lease Agreement. Further, the 1st Respondent is acting in excess of its mandate, as it has no jurisdiction over any dispute between the Applicant, the 2nd Respondent, or any Third Party, since this is clearly a matter reserved for a Single Arbitrator pursuant to Clause 7 of the Lease Agreement. 19. That the Interested Party, being a member of the 1st Applicant, cannot take the issue fairly between the residents of Karima Hill, whom she represents before the 1st Respondent and the Applicant to the County Assembly of Nyeri. Thus the Applicant could not obtain justice. 20. Further, that the Respondent acted as both prosecutor and judge in a matter that was contrary to the principles of natural justice and to Article 47 of the Constitution on fair administrative action. That their decision was unreasonable, irrational, and biased, as it failed to appreciate that the trees being cut down were also being maintained. 21. The Applicant argues that the impugned decision disregards the agreement between the parties, interferes with the Applicant's operations, and should therefore be stopped by this Honourable Court and set aside and/or quashed. **The Respondent’s replying affidavit** 1. The Respondent filed a replying affidavit in the instant application, sworn by Wambui Ngunjiri, Senior Legal Officer of the Respondent herein. She deposed that the Respondent herein is the Legislative Arm of the County Government of Nyeri, established under Article 176(1) of the Constitution of Kenya, 2010. Pursuant to Article 185 of the Constitution, the Respondent is vested with legislative authority and oversight responsibility for County resources and their utilisation. 2. Further, the 1st Interested Party is a duly elected Member of the County Assembly representing Karima Ward, within Nyeri County. 3. Regarding the facts of the case, she deposed that on or about 24 February 2025, the 1st Interested Party presented a Petition to the Respondent, on behalf of residents of Karima Ward, concerning alleged deforestation and environmental degradation at Karima Hill Forest, pursuant to Section 4(1)(b) of the Petition to the County Assembly of Nyeri (Procedure) Act, 2014, and Standing Order 201(1)(b) of the County Assembly of Nyeri Standing Orders. 4. Upon receipt of the Petition, the Respondent lawfully commenced investigations pursuant to Articles 37 and 119 of the 2010 Constitution by referring the Petition to the Committee on Environment and Natural Resources, a sectoral committee duly established under Standing Order 197 of the County Assembly of Nyeri. 5. As part of the investigations, on 4th March 2025, Members of the said Committee conducted a site visit to Karima Hill Forest to assess the environmental condition of the area and verify the concerns raised by the residents. During the site visit, it was observed that significant portions of the forest had been cleared without evidence of adequate reforestation, and that residents had not been sufficiently engaged in the ongoing activities within the forest. The site visit findings were duly communicated to the Applicant. 6. Subsequently, on or about 25 March 2025, the 2nd Interested Party and the Applicant held a consultative meeting, during which concerns arising from the site visit were conveyed and conditions for any proposed harvesting activities were issued to the Applicant. Among the conditions imposed upon the Applicant were the requirements to: a) Conduct an Environmental Impact Assessment (EIA) and obtain approval for it; b) Undertake a survey and boundary demarcation of the designated forest area proposed for harvesting; and c) Submit an operational and harvesting plan detailing the proposed activities. 1. It is deposed that the Applicant has, to date, failed, neglected, and/or refused to comply with the said conditions. That the Lease Agreement with the defunct County Council of Othaya, entered into in or about 1998 for a period of thirty (30) years, must be interpreted and implemented in conformity with current environmental laws, policies, and regulations, e.g., the Environmental Management and Coordination Act (EMCA) 2015, the Climate Change Act, 2016, and the Forest Conservation and Management Act, 2016. 2. Pursuant to Clause 4 of the Lease Agreement, the Applicant was obliged to replace any trees harvested for fuel to ensure the forest's restoration, an obligation the Applicant has failed to fulfil. The Deponent accused the Applicant of neither demonstrating compliance with the applicable environmental regulatory framework nor regularising the lease arrangement in line with emerging legal requirements. 3. Further, the Applicant has not annexed any evidence of a valid permit issued by the Kenya Forest Service (KFS) authorising tree harvesting within Karima Hill Forest. 4. Owing to the Applicant's non-compliance, the Committee on Environment and Natural Resources recommended that harvesting activities be halted pending full compliance with the stipulated conditions. According to the Deponent, the Respondent made this decision under its constitutional and statutory mandate, solely to protect and conserve the environment and natural resources from further degradation. 5. That upon full compliance with the lawful conditions imposed and upon obtaining the requisite approvals and permits from the relevant authorities, including the Kenya Forest Service, the Applicant shall be at liberty to proceed with harvesting. 6. Further, the Deponent added that the Applicant has approached this Honourable Court with unclean hands and without exhausting lawful and reasonable compliance mechanisms, and is therefore undeserving of the discretionary orders sought. She described the instant application as an abuse of the court process and therefore should be dismissed with costs. **The Applicant’s supplementary affidavit** 1. The Applicant, through the Deponent Boniface Kariuki, once again filed a supplementary affidavit in response to the Respondent’s affidavit sworn on the 13th of April 2026. He deposed that the Environmental Impact Assessment was conducted pursuant to the Respondent’s recommendations and set out the scope of the effects of the tree-harvesting process on Karima Hill, including the mitigation and restoration measures attached. 2. He added that, therefore, the Respondent's decision is interfering with the operations of the Applicant and should, in the interests of justice, be stopped by this Honourable Court and set aside and/or quashed. 3. Parties filed written submissions, which the Court has duly read and considered. **Analysis and Determination** 1. The Applicant herein seeks leave to file orders of prohibition, certiorari and mandamus against the decision of the Respondent herein, the County Assembly of Nyeri, contained in the findings, recommendations and decision of the 1st Respondent’s Committee on Environment and Natural Resources dated 11th June 2025, ordering the Applicant to stop harvesting Eucalyptus trees grown within 80 acres of the Karima Hill Forest. The Applicant argues that the harvesting of the said trees was done pursuant to an agreement with the defunct Othaya Town Council dated 31st December, 1998, which leased 80 acres within the Karima Hill Forest for the purpose of establishing its own fuel-wood plantation for use by the Applicant’s factory, and that the Applicant maintained those trees. 2. Counsel for the Applicant relied on Article 47 of the 2010 Constitution of Kenya, which provides that: ***“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair…..”*** 1. Further reliance was placed on Section 4 of the Fair Administrative Action Act, 2015, which states: ***“Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair…..”*** 1. Order 53(1) of the Civil Procedure Rules (2010) provides for leave of court to file an application for judicial review, such as the instant application, and states that: ***“Applications for mandamus, prohibition and certiorari to be made only with leave.*** ***(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.*** ***(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.”*** 1. The High Court (Nyamweya J., as she then was), in the case of **Republic v Registrar of Companies & another Ex parte Prakla East Africa Limited; Prakla Bohrtecknic GMBH (Interested Party) [2021] eKLR**, set out the reasons for an application for leave and a stay pending the substantive Judicial Review Application. ***“I have considered the arguments made by the parties herein, and the applicable law for leave to commence judicial review proceedings, namely*Order 53 Rule 1*of the Civil Procedure Rules. The main reason for the leave, as explained by Waki J. (as he then was), in******Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996, is to ensure that an applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.*** 1. Leave is therefore a preliminary screening exercise of the court’s discretion before a judicial review application is filed. In the case of **Uwe Meixner & another v Attorney General [2005] eKLR**, the Court of Appeal held that: ***“The leave of the court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion.”*** 1. The High Court (Mativo J, as he then was) reiterated this in the case of **Republic v Kenya Revenue Authority, Commissioner Ex parte Keycorp Real Advisory Limited [2019] eKLR**, which held as follows regarding the leave stage in judicial review applications: ***“The leave stage is used to identify and filter out, at an early stage, claims which may be trivial or without merit. At the leave stage an applicant must show that:-*** ***(i) sufficient interest' in the matter, otherwise known as locus standi;*** ***(ii) that he/she is affected in some way by the decision being challenged;*** ***(iii) that he/she has an arguable case and that the case has a reasonable chance of success;*** ***(iv) the application must be concerned with a public law matter, i.e. the action must be based on some rule of public law;*** ***(iv) the decision complained of must have been taken by a public body, that is, a body established by statute or otherwise exercising a public function. All these tests are important and must be demonstrated.*** 1. Without going into the substantive merits of the Applicant’s case, I am of the view that the Applicant has demonstrated sufficient interest in the matter by producing the Lease Agreement dated 31st December 1998 between the Applicant and the then (now defunct) Othaya Town Council, which leased the suit property to the Applicant for a period of 30 years. The Applicant is directly affected by the Respondent’s decision and recommendations, as they use the felled trees in their daily operations and have been conducting operations on the suit property for a number of years. Because a public body made the decision, it qualifies for judicial review scrutiny. 2. In conclusion, the Applicant has met the conditions necessary to grant leave to file judicial review orders. I therefore grant leave for the Applicant to file the orders within 21 days of the date of this ruling. However, in view of the environmental concerns raised, the leave does not operate as a stay of the Respondent’s decision dated 11th June 2025 by the Respondent’s Committee on Environment and Natural Resources. Instead, the main JR will be fast-tracked to address the issues raised herein. 3. No order as to costs. **Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr Macharia for the Applicant** **Ms Swaka for the Respondent & 1st Interested Party** **Ms Nyawira for the 2nd Interested Party** **Denis - Court Assistant** **In the Absence of:** **The Respondent (in person)**