Nairobi, March 20 (Swara) – Kenya’s Environment and Land Court (ELC) has ruled that it has jurisdiction to hear a petition challenging a government decision to build a road through Aberdare National Park and Aberdare Forest. This is another triumph for a consortium of conservation groups opposed to the project’s implementation.
The Kenya National Highways Authority (KeNHA) had argued that the ELC lacks jurisdiction over the matter, saying that the petition should first be heard by the National Environment Tribunal (NET). However, on March 13, the ELC ruled that the petition raised significant constitutional issues beyond the jurisdiction of NET.
The petitioners, including the East African Wild Life Society (EAWLS), argued that the proposed road project posed environmental threats, including deforestation and biodiversity loss, and raised constitutional issues such as the right to a clean and healthy environment. They opined that the ELC had the authority to hear the case under constitutional and environmental law provisions.
In its preliminary objection, KeNHA argued that the petition should be dismissed because the petitioners had not first taken the matter to the NET, which is designated under Section 129 of the Environmental Management and Coordination Act (EMCA) to handle disagreements over environmental licences.
In its ruling, the Court found that while the NET has jurisdiction over disputes related to Environmental Impact Assessment (EIA) licences, the controversy over the construction of the Ihithe-Ndunyu NjerU Road through the protected Aberdare ecosystem raised broader constitutional issues, which fell within the jurisdiction of the ELC, the part of the judiciary empowered to address constitutional and environmental rights violations.
The Court issued a conservatory order on April 15, 2024, halting the construction of the Ihithe-Ndunyu Njeru Road, which traverses the Aberdare National Park and Aberdare Forest. This order remains in effect pending the inter-partes hearing of the lawsuit.
Publicly available information suggests the existence of an alternative route, the Kariamu-Ndaragwa Road. Petitioners expressed concern over KeNHA’s failure to consider this substitute path. Public records indicate that the alternative thoroughfare offers efficient connectivity between Nyeri and Nyandarua counties and promises to mitigate adverse environmental, economic, and cultural effects on the protected ecosystem.
The Aberdare National Park, a potential UNESCO World Heritage site, hosts numerous rare and critically endangered wildlife species, including the mountain bongo antelope. The proposed road not only threatens these rare species but also endangers the vital water tower function of the Aberdare, which supplies 80 per cent of the water used by farmers, communities, and Nairobi through Ndakaini and Sasumua dams.
KeNHA’s previous proposal in 2009 was to upgrade the Ihithe-Ndunyu Njeru Murram road, which operates within daylight hours. However, concerns about its potential environmental impact led to the National Environment Management Authority (NEMA) denial of a licence. Despite this, NEMA later issued a licence for KeNHA to construct a bitumen highway through the park, prompting legal action from a coalition of conservation organisations and lawyer Lempaa Suyanka in 2024.
The latest decision clarifies the role of the Environment and Land Court in addressing constitutional environmental disputes, ensuring that issues related to fundamental rights and environmental protection are given due consideration in judicial proceedings.
