https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8096

Kariuki & 2 others v The County Executive Committee Nyandarua & 2 others (Civil Case E001 of 2026) [2026] KEHC 8096 (KLR) (Civ) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 8096 (KLR) Republic of Kenya In the High Court at Nyandarua Civil Civil Case E001 of 2026 KW Kiarie, J June 10, 2026 Between James Gacheru Kariuki 1st Plaintiff Ahmed Chege Gikera 2nd Plaintiff Joshua Muhandi Kingori 3rd Plaintiff and The County Executive Committee Nyandarua 1st Defendant The Ocs, Ngano Police Station 2nd Defendant The Honourable Attorney General 3rd Defendant Ruling 1.The plaintiffs/applicants moved the court by way of an amended Notice of Motion dated the 9th day of March 2026. It was brought under sections 1A, 1B, 3A, and 63(e) of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya. The applicants are seeking the following orders:a.That the amended application herein be certified urgent and the same be heard ex parte in the first instance.b.The conservatory order do issue restraining the defendant/ respondents herein by themselves, their agents, servants, employees and/or any other person claiming from them from interfering in whatsoever manner with the plaintiffs ownership of property in the name of tree or tree products and/or machinery in any of the plaintiffs' parcel(s) of land unless and until there is in force in Kenya a valid law limiting ownership of property in the description of trees or tree products and/or timber works machinery away from the areas declared or gazette as forest pending the hearing and determination of the application herein, the suit herein and/or until further orders of the honourable court. or:c.A mandatory injunction is to issue compelling the 1st defendant /respondents to forthwith return the two full fifteen-ton timber lorry loads irregularly and unlawfully confiscated from the 2nd plaintiff/applicant’s land parcel No. Nyandarua/Oraimutia/1614 on 25th February, 2026 and 26th February, 2026.d.Declaration does issue that a County Government has no business whatsoever in the planting, growing, harvesting, transporting and/or sale of trees or tree products in or from private land that has not been declared or gazetted as a forest.e.The Cost of this application be provided for. 2.The application was premised on the following grounds:a.The functions of a County Government e.g., the 1st defendant/respondent herein in relation to the planting, growing, harvesting, transporting and sale of trees and/or trees products under section 10 of part 2 of the Fourth Schedule to the Constitution of Kenya 2010 is simply to implement specific National Government Policies on natural resources and Environmental Conservation including forestry in accordance with the Forest Conservation and Management Act Cap 385 laws of Kenya.b.The Forest Conservation and Management Act, Cap 385, laws of Kenya requires a County Government to manage all Forests on public land, and which public land is defined under Article 62(2) of the Constitution of Kenya 2010c.The enforcement and compliance with the provisions of the Forest Conservation and Management Act, Cap 385, laws of Kenya under sections 62 & 64 of the Act are within forests and not outside forests.d.The forest as defined in section 2 of the Forest Conservation and Management Act, Cap 385, laws of Kenya, does not include trees planted, grown and/or tree products in private land which has not been declared or gazetted as a forest.e.The 1st Defendant/Respondent has no constitutional or legal function of controlling the planting, growing and/or harvesting of trees in private land which has not been declared and/or Gazetted as a forest.f.The 1st & 2nd defendants have absolutely no business to do with tree planting, growing, harvesting, transportation and/or selling in private land that has not been declared or gazetted as a forest.g.The plaintiff/applicants, with their elementary constitutional and legal information aforesaid, overly restrained themselves during the impugned trespasses and confiscation of tools of trade, timber and machine parts by the defendant/respondents, which restraint can easily snap, leading to actions that border on crime.h.That, having had regard to the findings of the court of appeal aforesaid, the actions of the Defendant/ Respondents purporting to be checking on and/or enforcing the payment of logging permit/fees and/or business permit in private land are unlawful, unconstitutional, and hence null and void.i.That it is only just that the defendant/respondents herein by themselves, their agents, servants, employees and/or any other person claiming from them are restrained from interfering in whatsoever manner with the plaintiffs' ownership of property in the name of trees or tree products in any of the plaintiff(s) parcel(s) of land unless and until there is in force in Kenya a valid law limiting the ownership of property in the description of trees or tree products away from the areas declared or gazette as forest. or:j.That without a restraining order pending the hearing and determination of the application herein, the suit herein and/or until further orders of the honourable court, nothing will stop the defendant/respondents, their agents, servants, employees or any other person claiming from the respondent from repeating the impugned action, rendering the suit herein an academic exercise. and it is only just that the plaintiff/ applicants herein are ordered to use all reasonable force necessary to repulse the defendant/ respondents and/or their servants, agents, employees and/or any other person claiming from them in any future attempt to infringe on the plaintiff's right to privacy and/or property. 3.The 1st respondent opposed the application on the following grounds:a.There were no engagements and or agreements entered into by the 1st, 2nd, and 3rd plaintiffs, and further state that the 1st respondent was not a party to the said agreements.b.The County Government of Nyandarua is a public institution guided by the laws of Kenya and therefore, abides by the Constitution of Kenya, 2010, statutes, regulations and all instruments with the force of law within the Republic of Kenya.c.The County Government have absolute business in regulation and use of natural resources, and this control and management emanates from the Constitution, statutes and applicable principles.d.Additionally, Article 69 (2) of the Constitution imposes a duty on every person to cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. Further, the Environmental Management and Coordination Act (EMCA), 1999, emphasizes and/or recognizes the polluter pays principle, a tool in natural resources management that aims to prevent environmental harm through a liability mechanism.e.That further the Constitution under its Fourth Schedule Part 2(10) gives county governments the powers and functions to implement specific national government policies on natural resources and environmental conservation, including soil and water conservation and forestry.f.That based on Article 6(2) of the Constitution, which provides for consultation and cooperation within national and county governments, as read with the Environmental Management and Coordination (Amendment Act) 2015, establishes the county environmental committee 10 deal with environmental management and sustainable use of natural resources such as forests, trees, etc.g.The Forest Conservation and Management Act under its Section 21(1) (a & e) obligates county governments to implement national policies on forests.h.The 2nd plaintiff has not made applications for exemption from payment on charges and or levies in respect to the land or dealings on the land.i.The Nyandarua County Finance Act has been legally enacted, lawfully in place, fully operational, and the same has not been challenged by any individual or the applicants themselves; thus, the applicants cannot enjoy any conservatory orders on a fully operational law.j.For the court to grant an applicant conservatory orders, one has to have an arguable prima facie case, a real and imminent risk of prejudice or violation of rights, the application has a nugatory effect, and the order is consistent with public interest and constitutional values.k.Regarding public interest, non-payment of the levies directly impacts service delivery to Nyandarua residents. The revenue collected funds these services, and ongoing illegal logging harms the environment. Therefore, granting conservatory orders would unfairly benefit the Applicant and prejudice the 1st respondent and the people of Nyandarua. 4.To persuade this court to grant a temporary injunction pending the hearing and determination of this appeal, he must satisfy the principles enunciated in Giella v Cassman Brown & Company Limited [1973] EA 358. This is what the court stated: 5.First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant would otherwise suffer irreparable injury that an award of damages cannot adequately compensate. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience. 6.I have reviewed the application and submissions from both sides. In my opinion, the applicants have not shown that they will suffer irreparable loss that cannot be redressed by monetary compensation. Secondly, the issues raised in this application require evidence, and the best way to adduce it is through the hearing. 7.The applicants have not made a case to deserve the issuance of conservatory orders. 8.The application is therefore dismissed with costs. DELIVERED AND SIGNED AT NYANDARUA, THIS 10TH DAY OF JUNE 2026KIARIE WAWERU KIARIEJUDGE.