Legal Advice Centre T/a Kituo Cha Sheria v Cabinet Secretary, Ministry of Environment and Natural Resources & 5 others

THE KENYA FOREST SERVICES ……………..… 6TH RESPONDENT JUDGEMENT 1. The Petitioner commenced this case vide its Petition dated 24th November 2023. It contends that sometime in 2018, a ban on logging was declared in the Republic of Kenya, following recommendations by a taskforce created by the 1 st Defendant, whose scope was to review the scale of illegal logging, destruction, degradation and encroachment on forests, water towers and catchment areas, among other things. It is its case that the said taskforce recommended action to be undertaken by the Respondents to mitigate consequences of lifting the ban. However, without undertaking any such action, on 2 nd July 2023, the President of the Republic of Kenya announced that the logging ban had been lifted. 2. It contends that the said decision will decimate Kenya’s forests and cause citizens to suffer from living in an ELC PETITION NO. E024 OF 2023 Page 2 of 18 Judgement

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environment that is not safe and healthy, contrary to Article 42 of the Constitution. Further, that it will result to less tree cover as commercial and illegal logging driven by profit takes shape. It accuses the 1st, 2nd and 5th Respondents of failing to take steps to protect forests of the Republic of Kenya thereby increasing the risk of global warming by acting in a manner contrary to Articles 10(2), (a) and 73 (1) (a) (i& iv) and 2 (d) of the Constitution. The Petitioner therefore prays for: a) A declaration announcement lifting that the presidential the logging ban was unconstitutional, without any legal basis. b) A declaration that the presidential announcement lifting the logging ban and the subsequent illegal logging is an act that has /will cause an increase in the climate change affecting the Republic. c) A declaration that by their respective nonfeasance the Respondents have failed in their respective ELC PETITION NO. E024 OF 2023 Page 3 of 18 duties to uphold Judgement the

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Constitution and the laws of the Republic by failing to declare that the Presidential announcement lifting the logging ban was unconstitutional. d) A declaration that by their respective nonfeasance the Respondents have failed in their respective duties to uphold the Constitution and the Laws of the Republic by knowingly knowing that the presidential announcement lifting the logging ban was unconstitutional the Respondents failed in their duties to protect the environment of the Republic. e) A declaration that by their respective nonfeasance, the Respondents have contributed to the increased risk of climate change in the Republic. f) A declaration that the 1st,2nd and 5th Respondents by their nonfeasance in failing to protect the environment as demanded by the Constitution and statute have no legal or moral legitimacy to hold their respective offices. ELC PETITION NO. E024 OF 2023 Page 4 of 18 Judgement

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g) A declaration that as a result of the acts and omissions by the Respondents the Petitioner is deserving of damages to be ascertained by this court; and h)That the Petitioner is deserving of costs. 3. The Petition is supported by the affidavit of Annete Mbogoh, the Petitioner’s Chief Executive Officer. She avers that on 28th February 2018, the 1st Respondent publicized a Gazette Notice constituting a task force with the duty of among other things, determining the scale of illegal logging, destruction, degradation and encroachment of public and community forests, water towers, catchment areas and associated impacts. After conducting its work, the said task force published a report. She points out that the said report indicates that Kenya’s forest cover is estimated to be about 7.4% of the total land area, which is below the recommended global minimum of 10% and that its closed canopy forest cover then stood at 2% of the total land area, compared to the African average of 9.3% and a world average of 21.4 %. ELC PETITION NO. E024 OF 2023 Page 5 of 18 Judgement

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4. She avers that in the said report, the 6th Respondent was indicted for among other things, overseeing wanton destruction of Kenya’s forests and the plunder of its water towers due to rampant corruption, lack of accountability, unethical behavior, contravening the law by failing to issue timber licenses in accordance with the Forest Conservation and Management Act, and abuse of office. 5. She explains that it was also a finding in the said report that illegal logging of indigenous trees was a major threat to forests, cedar being the most targeted tree species. Further, that destruction of indigenous forest was also observed and attributed to unclear forest zoning, large scale public infrastructure developments, illegal squatters, the changing lifestyle of forest dwelling communities, among others. She avers that failure to sign and operationalize the Transition Implementations Plans (TIPs) to facilitate transfer of forest functions to County governments was also cited for lack of a ELC PETITION NO. E024 OF 2023 Page 6 of 18 Judgement

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clear framework for coordination between the National and County Governments in the management of forests. 6. She points out that the taskforce made recommendations, including constitution of an independent management team to manage operations of the 6th Respondent as its officers are vetted to determine their suitability and culpability to serve, including investigations and prosecution of those implicated in malpractices. Further, it was also recommended that the use of cedar products be banned, establishment of core conservation zones in forests and their conversion into indigenous forest, removal of illegal squatters from forests, overhaul of management of commercial forest plantations, establishment by the 6th Respondent, of a framework and procedure to monitor, to verify and audit compliance with licensing conditions of the saw millers. 7. She claims that it was also the taskforce’s recommendation that the 6th Respondent engages with private land owners and state corporations with vast acreage to increase ELC PETITION NO. E024 OF 2023 Page 7 of 18 Judgement

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investment in private forest plantations to complement public plantations. County governments were also advised, in collaboration with the Ministry of Environment and Natural Resources, to fast track the signing and operationalization of Transition Implementation Plans (TIPs), for the efficient transfer and implementation of the devolved function and a clear framework for collaboration in forestry functions between the national government and county governments. 8. She states that as a result of the report, a ban on all logging was imposed within the Republic of Kenya but on 2 nd July 2023, it was announced by the President of the Republic of Kenya that the said ban had been lifted as a measure to create jobs for the youth. Further, that however, immediately thereafter, loggers invaded the forests and started indiscriminately cutting down trees. She reaffirms that none of the Respondents took any steps to countermand the presidential announcement of lifting the ban. She reiterates that the ELC PETITION NO. E024 OF 2023 Page 8 of 18 Judgement

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inaction of the 1st, 2nd, 3rd, 5th and 6th Respondents is an act of negligence as they owe a Constitutional duty under Article 69 (1) (b), to ensure that the Republic of Kenya maintains a tree cover of at least 10%. Responses 9. In response, the 1st, 4th, 5th and 6th Respondents filed a Preliminary Objection. However, the same is not available/legible in the online filing system (CTS) and they did not file a physical copy in the court file either. This position was noted by the Petitioner who on 18 th March 2025 informed the Court that while the 4th Respondent had filed a Preliminary Objection, it was not available to the parties. 10. On their part, the 2nd and 3rd Respondents also filed a Preliminary Objection which they later withdrew in open court on 16th October 2024 and chose to rely on their replying affidavit sworn on 29th April 2024 by the 3rd Respondent’s representative one, Dr. Mamo B. Mamo, EBS. He avers that the subject matter in this Petition and in ELC PETITION NO. E024 OF 2023 Page 9 of 18 Judgement

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Nairobi ELC Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties) (Environment & Land Petition E001 of 2023 are the same and that on 12th October 2023, this Court (Hon Justice Angote) determined the matter therefore it is imprudent and an abuse of court process for this Court to hear the instant petition. 11. The Petition and the Hon. Attorney General’s Preliminary Objection, which as aforementioned was not availed to the Court, were canvassed by way of written submissions. Submissions 12. On 3rd July 2026, the 1st and 2nd Respondents confirmed that they would not be filing submissions. On their part, the Petitioner, the 1st and 4th to 6th Respondents did not file submissions despite this Court’s directions to do so. Analysis and Determination ELC PETITION NO. E024 OF 2023 Page 10 of 18 Judgement

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13. I have considered the instant Petition, respective affidavits including the Notice of Preliminary Objection and the following are the issues for determination: a) Whether the Petition is res judicata ELC Petition No. E001 of 2023-Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties) b) Whether the lifting of the logging ban violated Articles 10, 42, 69, 70 and 1st, 2nd and 5th 73 of the Constitution. c) Whether the Respondents’ nonfeasance is a violation of their constitutional and statutory obligation to protect forests in the Republic of Kenya. 14. The Petitioner alleges that in 2018, logging was banned in the Republic of Kenya, following recommendations by a Taskforce appointed by the 1st Respondent to investigate illegal logging, forest degradation, among others. It contends that the Taskforce made a raft of recommendations ELC PETITION NO. E024 OF 2023 Page 11 of 18 Judgement

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intended to mitigate the adverse environmental consequences of logging and to address the systemic challenges affecting forest conservation before any lifting of the ban could be considered. However, on 2 nd July 2023, the President of the Republic of Kenya announced the lifting of the logging ban before the implementation of the safeguards proposed by the 2018 Taskforce. 15. The Petitioner contends that the President’s decision is likely to increase the effects of climate change, and infringe the constitutional rights of Kenyan citizens to a clean and healthy environment guaranteed under Articles 42 and 70 of the Constitution. It further contends that the decision was made in disregard of the national values and principles of governance under Article 10 and the State's obligations under Article 69 of the Constitution. It also argues that the Respondents’ nonfeasance is a failure to discharge their constitutional and statutory duties to protect the forests. ELC PETITION NO. E024 OF 2023 Page 12 of 18 Judgement

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16. In response, the 2nd and 3rd Respondents contend that the Petition is an abuse of court process owing to this Court’s decision (Angote J) in ELC Petition No. E001 of 2023-Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties), where the subject matter herein was also the subject of the said case. 17. On the first issue, the law bars a Court from determining a matter that has already been heard and determined to conclusion by a Court with competent jurisdiction. This bar is referred to as ‘res -judicata’ and has its footing at Section 7 of the Civil Procedure Act which provides that: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit ELC PETITION NO. E024 OF 2023 Page 13 of 18 Judgement

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in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 18. Further, the Supreme Court of Kenya in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), held that: “Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is ELC PETITION NO. E024 OF 2023 Page 14 of 18 Judgement

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identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 19. This Court has taken judicial notice of the judgment in Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties) [2023] KEELC 20583 (KLR). In the said matter, Justice Angote declared the blanket lifting of the logging moratorium without executing reforms recommended by the 2018 Taskforce unconstitutional. He ordered for a full implementation of the 2018 Taskforce report vide a structural interdict at Paragraph 257 of the said judgment in which he stated that: “d) An order of mandamus be and is hereby issued compelling the Respondents to implement the recommendations of the Taskforce and a comprehensive implementation matrix of the same to be filed in Court not later than three months after the date of the judgement of the Court. (e) An order be and is hereby issued that ELC PETITION NO. E024 OF 2023 Page 15 of 18 Judgement

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the implementation framework shall include a program for information proactive and public dissemination participation in of the management of forest resources, including but not limited to the 3rd Respondent’s Strategic Plan, Forest Management Plan and Felling Plan.” 20. Further, in the said matter, the Petitioner was the Law Society of Kenya, while the 1 st to 4th Respondents were the Hon. Attorney General, Cabinet Secretary, Ministry of Environment Climate Change and Forestry, Kenya Forest Service and the National Environment Management Authority respectively. I note all the said four Respondents are parties in the instant suit. 21. The principal issues which were before the Court in the former Petition related to the constitutionality of lifting the logging ban, and were finally determined by a Court of competent jurisdiction. These are the same questions sought in this Petition, which the Court notes was also filed in 2023. By dint of the provisions of section 7 of the Civil Procedure ELC PETITION NO. E024 OF 2023 Page 16 of 18 Judgement

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Act, this Court is barred from determining the second and third issues which were in issue in the former Petition. 22. Based on the facts as presented while associating myself with the decisions cited and relying on section 7 of the Civil Procedure Act, I find that the instant Petition is res judicata ELC Petition No. E001 of 2023-Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties) and will proceed to strike it out and not deal with the other issues raised. 23. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Muyai for Gitonga for 2nd and 3rd Defendants Court Assistant: Joan ELC PETITION NO. E024 OF 2023 Page 17 of 18 Judgement

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