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ELCDismissedPetition dated 22nd March, 2024· [2026] KEELC 4670 (KLR)

East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 9 others (Environment and Land Petition E001 of 2024) [2026] KEELC 4670 (KLR)

Environment and Land Court of Kenya
17 July 2026
17,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~68 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a petition challenging the Aberdare road project, clearing the way for construction to proceed.

What this practically means

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Executive summary

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The Petitioners, three conservation and human rights organisations, challenged the planned Mau Mau Lot 4: Ihithe-Ndunyu Njeru Road (52km), which traverses the Aberdare National Park and Aberdare Forest Reserve, and the EIA Licence No. NEMA/EIA/SR/29911 issued to KENHA on 5th January 2024. They sought declarations of violation of Articles 10, 11, 42, 47 and 69 of the Constitution, a permanent injunction against construction, declarations on conflict of interest against Norken International Ltd (the ESIA consultant and road designer), structural interdicts for alternative routes and a biodiversity inventory, and personal responsibility of officials. The three-judge bench of the Environment and Land Court, having earlier confirmed its own jurisdiction on 13th March 2025, heard three expert witnesses for the Petitioners, visited the site on 18th July 2025, and considered extensive written submissions. The court dismissed the petition on all issues. It held there was no conflict of interest: Section 58 EMCA permits the proponent to undertake the EIA study, and the 2025 Regulations requiring a conflict-of-interest declaration were not retrospective. It found the 2024 licence was based on a new ESIA Study Report on new terms of reference, not the report rejected in 2009, and that public participation was adequate, satisfying Article 10(2). Alleged violations of Articles 11, 42 and 69 were not proved on the evidence; the mitigation measures in the ESIA Study Report and EIA Licence conditions were found exhaustive. A Strategic Environmental Assessment was not a legal precondition for a road project under the law prevailing in 2024. The petition was dismissed entirely with no costs, the court noting it was public interest litigation.

Key legal issues

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01

Conflict of interest in the ESIA study

Holding

No conflict of interest established; the applicable 2003 Regulations did not require a conflict declaration and Section 58 EMCA permits the proponent to undertake the EIA study

Reasoning

The court examined Section 58 EMCA and Regulation 13 of the 2003 Regulations, and relied on R (on the application of) vs Derbyshire County Council to explain that the proponent's assessment may be flawed but the safeguard is NEMA's independent evaluation and public consultation. PW1 conceded the Code of Ethics does not bar the designer from doing the ESIA. The 2025 Regulations requiring a conflict-of-interest declaration were not retrospective.

p. 16
02

Violation of Article 10(2) (transparency, accountability, public participation)

Holding

No violation; the 2024 licence was based on a new ESIA Study Report on new terms of reference, and public participation was adequate

Reasoning

The court found the 4th Respondent issued the licence on a new ESIA Study Report of 2023 that addressed the concerns in its 2009 rejection letter. Public participation included a newspaper notice on 18/4/2023, stakeholder meetings, workshops and written submissions; the 1st Petitioner itself submitted a memorandum. Following the Supreme Court's principles in British American Tobacco, participation must be real and meaningful, which the court found was satisfied.

p. 23
03

Violation of Articles 11, 42 and 69 of the Constitution

Holding

Not proved; mitigation measures in the ESIA Study Report and EIA Licence conditions are exhaustive and safeguard the environment if implemented

Reasoning

The court independently evaluated the ESIA Study Report, the EIA Licence conditions (including the offset and compensation plan) and its site visit, which confirmed the project is an upgrade of an existing motorable murram road. The Petitioners failed to tender evidence showing the mitigation measures were insufficient, and reliance on Gwer placed the burden of proof on them. Sustainable development principles guided the finding that the State did not abdicate its Article 69 obligations.

p. 27
04

Requirement of a Strategic Environmental Assessment (SEA)

Holding

A SEA was not a legal precondition to the EIA licence under the law in force in 2024

Reasoning

Section 57A EMCA and Regulation 42 of the 2003 Regulations apply SEA to policies, plans and programmes, not to individual projects. The Environmental Management and Co-ordination (Strategic and Integrated Environmental Impact Assessments and Environmental Audits) Regulations 2025 were not in force when the licence was issued and cannot apply retrospectively. Additionally, the Cabinet Secretaries responsible for Vision 2030 policies were not sued and cannot be condemned unheard.

p. 31

Legal principles established

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  • Section 58 of EMCA allows any person including the project proponent to undertake the EIA study, and there is no legal bar to the designer of a road conducting its ESIA; the safeguard lies in NEMA's independent assessment
  • Legislation cannot apply retrospectively unless it expressly states so; the EMCA (Impact Assessment and Audit) Regulations 2025 do not apply to an ESIA done in 2022-23
  • Under the law prevailing in 2024, a Strategic Environmental Assessment was not a mandatory precondition to the issuance of an EIA licence for a road project; SEA applies to policies, plans and programmes
  • Article 42 of the Constitution is not a veto on development; where an EIA licence identifies impacts and provides adequate mitigation measures, the project should be allowed to proceed
  • A petitioner alleging violation of a constitutional right bears the burden of tendering evidence proving the alleged violation

Court orders

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  1. 1.The Petition dated 22nd March, 2024 is dismissed entirely
  2. 2.No costs awarded, the litigation being public interest litigation
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court under Articles 42 and 70 of the Constitution; jurisdiction previously confirmed in a Ruling delivered 13th March 2025

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 9 others (Environment and Land Petition E001 of 2024) [2026] KEELC 4670 (KLR)", Case Analysis (2026). Petition dated 22nd March, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4670/eng@2026-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.