The Greenbelt Movement v The Nairobi City County Government & 9 Others

IN THE MATTER OF PUBLIC PRIVATE PARTNERSHIPS ACT, 2021 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACR, NO 4 OF 2015 AND IN THE MATTER OF THE VIOLATION OF THE RIGHT TO A CLEAN AND HEALTHY ENVIRONMENT THE GREENBELT MOVEMENT………………. ………….....PETITIONER VERSUS THE NAIROBI CITY COUNTY GOVERNMENT….….1st RESPONDENT COUNTY EXECUTIVE COMMITTEE MEMBER, BUILT ENVIRONMENT AND URBAN PLANNING ..……………………………………… 2nd RESPONDENT COUNTY EXECUTIVE COMMITTEE MEMBER, ENVIRONMENT, WATER, FOOD AND AGRICULTURE …………..……………….. 3rd RESPONDENT NAIROBI COUNTY DIRECTOR OF PHYSICAL AND LAND USE PLANNING………….….4th RESPONDENT ELC EP PET. NO. E033 OF 2024 JUDGMENT 2

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THE COUNTY GOVERNOR, NAIROBI COUNTY.….5 th RESPONDENT AND THE LAW SOCIETY OF KENYA………..…..….1st INTERESTED PARTY MATHARE SOCIAL JUSTICE CENTRE….….2nd INTERESTED PARTY KAMUKUNJI HUMAN RIGHTS DEFENDERS ……………..…….…...... 3rd INTERESTED PARTY KIAMAIKO SOCIAL JUSTICE CENTRE …… 4th INTERESTED PARTY MAKADARA SOCIAL JUSTICE CENTRE.…..5th INTERESTED PARTY KIBERA COMMUNITY JUSTICE CENTRE...6th INTERESTED PARTY KARIOBANGI SOCIAL JUSTICE CENTRE...7th INTERESTED PARTY KASARANI SOCIAL JUSTICE CENTRE….…8th INTERESTED PARTY NGONG SOCIAL JUSTICE CENTRE…..…..…9th INTERESTED PARTY UTALII YOUTH GROUP………………………...10th INTERESTED PARTY JUDGMENT Background ELC EP PET. NO. E033 OF 2024 JUDGMENT 3

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1. The present Petition has been instituted by the Green Belt Movement against the Nairobi City County Government and its executive committees concerning the management, closure, protection and proposed commercial use of public green spaces within Nairobi County, principally Uhuru Park and Central Park. 2. At the heart of the dispute is the Petitioner’s contention that the prolonged and intermittent closure of the parks, the alleged failure to disclose the basis for those closures, and the proposed leasing or commercialization of portions of the parks have been undertaken without sufficient public information, participation or adherence to the applicable constitutional and statutory framework. 3. The Petition consequently raises questions concerning the right of access to information, the right to a clean and healthy environment, public participation and the obligations of the County Government in the management and protection of public green spaces. 4. Vide an Amended Petition dated 10th September, 2025, the Petitioner seeks the following reliefs: i. A declaration that the right to a clean and healthy environment guaranteed under Article 42 includes the right of Kenyans to freely access public, open green spaces, including Uhuru Park and Central Park in Nairobi. ELC EP PET. NO. E033 OF 2024 JUDGMENT 4

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ii. A declaration that the prolonged closure of Central Park without any notice, explanation or justification by the Respondents infringes the rights of Kenyans secured under Articles 42 and 69 of the Constitution. iii. A declaration that the Respondents have infringed and violated constitutional rights of Kenyans by failing to provide information within the province of Article 35, relied upon and the basis of which there has been prolonged closure of Central Park since 2021. iv. A permanent injunction does and is hereby issued to the Respondent from implementing resolution no 3 of the memo published on the 3rd December, 2024 and from in any way implementing any commercial leasing of Uhuru Park and Central Park until the same has under gone public participation and the same adheres to attendant laws. v. An order does and is hereby issued that the County Government of Nairobi ought to comply with Sections 54 to 61 of the Public Private Partnerships Act before implementing any PPPS for the running/leasing or commercialization of any parts of Uhuru and Central Park. ELC EP PET. NO. E033 OF 2024 JUDGMENT 5

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vi. An order of mandamus be and is hereby issued for the opening of Uhuru Park and Central Park unconditionally to members of the public and for any such further closure to be sanctioned by the Honourable Court in the absence of any legislation, notice done with public participation and approval by the County Assembly. vii. A declaration that the failure to provide any legislation, policy, guidelines and the development plans to govern management of the public operationalization open green and spaces including conditions of entry and exit, time of operation, requirements to access within Nairobi County, leaving the same to word of mouth instructions from the Respondents, is unlawful and unconstitutional. viii. A permanent Respondents, injunction restraining the either by themselves or through their agents, servants, employees, proxies or any other person from denying access to Uhuru Park, Central Park, City Park and any other public green space maintained by the County until such time as there shall be laid, enacted and legislated laws, regulations or guidelines, duly passed and with the force of the law for purposes of governing and ELC EP PET. NO. E033 OF 2024 JUDGMENT 6

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regulating recreational facilities such as these by the Respondents. ix. An order of mandamus be and is hereby issued compelling the Respondents jointly and severally immediately implement the legal provisions on green spaces and urban planning specifically to provide for the establishment of at least one extensive green, open spaces within each subcounty in Nairobi, whose size shall be based on the population of the area and a report of the same be filed in court not later than a year after the date of the judgment of the court. 5. The Petition is supported by the affidavit of Ms. Nyaguthie Chege, the Petitioner’s chairperson of an even date. The Petitioner describes itself as a value-driven society whose members consciously work towards improving their livelihoods and securing a greener and cleaner world. Its principal objectives include tree planting, water harvesting, climatechange mitigation and advocacy, gender mainstreaming and the improvement of livelihoods. 6. It avers that Uhuru Park and Central Park are historically, environmentally, socially and culturally significant public spaces; that Uhuru Park was gazetted and opened to the public on 23rd May 1969 by the late President Mzee Jomo Kenyatta; that it t occupies approximately 12.9 hectares adjacent to ELC EP PET. NO. E033 OF 2024 JUDGMENT 7

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Nairobi’s central business district and is one of the city’s most popular and accessible recreational spaces and that it contains an artificial lake, national monuments, a skating area and an assembly ground used for religious, political and other public events. 7. It is the Petitioner’s case that the parks bear considerable historical significance, being a site of the Nyayo Monument and the Mau Mau freedom fighters’ memorial. It is also associated with the environmental and democratic struggles led by the late Professor Wangari Maathai, the renowned Kenyan environmentalist, Nobel Peace Prize laureate and founder of the Green Belt Movement. 8. From an environmental perspective, the Petitioner contends that the parks protect more than four million Nairobi residents from, among other things, air pollution; reduce ambient urban temperatures, mitigate various forms of pollution and absorb greenhouse gases. The Petitioner explains that urban green spaces encompass parks, open spaces, residential gardens, street trees and other forms of vegetation within the urban environment and that such spaces support urban ecosystems and human well-being by providing opportunities for relaxation, recreation and leisure and allowing residents to escape the pressures of city life and reconnect with the natural environment. ELC EP PET. NO. E033 OF 2024 JUDGMENT 8

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9. According to the Petitioner, Uhuru Park continues to be opened and closed intermittently without notice, while Central Park remains closed and is undergoing concretization, with no indication of when it will be reopened to the public. It contends that the Governor of Nairobi has made numerous commitments concerning the reopening of Central Park but failed to honour them and that the reasons for the extended delay and the Respondents’ ultimate intentions regarding the park remain unclear. 10. The Petitioner further states that, on 3rd December 2024, the 1st Respondent’s Cabinet, through the Governor, issued a statement announcing that it had approved the leasing and renting of spaces within Uhuru Park and Central Park; that the objective was attracting to promote private-sector public-private investment to partnerships improve by park infrastructure. 11. The Petitioner contends that Article 35 of the Constitution, read with Sections 5 and 6 of the Access to Information Act, 2016, guarantees its right to obtain information concerning the proposed project. It maintains that the right of access to information includes Respondents to a corresponding proactively disclose duty upon information in the their possession because they exercise public authority and hold that information in trust for the public. ELC EP PET. NO. E033 OF 2024 JUDGMENT 9

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12. The Petitioner is consequently aggrieved that the Respondents have not publicly disclosed how the Cabinet of the 1 st Respondent arrived at the decision to lease portions of Uhuru Park and Central Park, the particular portions intended to be leased, the proposed lessees, or the basis upon which the Cabinet resolved to pursue public-private partnerships. It asserts that there is no evidence that the public participated in or was consulted on the decision. 13. The Petitioner states that, across Nairobi County, residents clamor for the few available private and public open green spaces, including unsafe areas such as vegetated road intersections. In its view, this situation is degrading to the human person and demonstrates the Respondents’ neglect of their duty to provide safe, accessible and properly maintained green spaces throughout the County. 14. The Petitioner is also concerned by the Respondents’ collective failure to enact legislation governing green spaces and recreational parks or to develop the County Physical and Land Use Policy, requirements. despite It clear constitutional contends that and statutory this failure has exposed residents to violations of their rights, including the denial of access to parks for failure to produce identification documents, intermittent and unexplained closures, and the concretization of available open spaces. ELC EP PET. NO. E033 OF 2024 JUDGMENT 10

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15. It was averred that in an attempt to address these concerns, the Petitioner, through its advocates, wrote to the County Governor on 18th April 2024, following which a meeting was held on 20th April 2024; that the demands made and the commitments arising from that engagement were subsequently recorded in a public communiqué of even date and that when the issues remained unresolved, the Petitioner again wrote to the Governor on 7th June 2024 but received no satisfactory response. 16. Through a further letter dated 19th September 2024, which was received on the same date, the Petitioner sought information concerning the intermittent opening and closure of Uhuru Park, the prolonged closure of Central Park, the policy or law authorizing those practices and the County Government’s plans to provide open green spaces for residents throughout Nairobi. The Respondents allegedly declined to respond or provide the requested information. 17. The Petitioner acknowledges that Uhuru Park may have been open to the public when the Petition was filed but contends that its temporary opening does not amount to a binding commitment that the Respondents will not close it again. It maintains that the operation and management of parks and public green spaces in Nairobi remain unregulated by any known legislation, policy or guidelines. ELC EP PET. NO. E033 OF 2024 JUDGMENT 11

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18. It is asserted that the resolution adopted by the County Executive Committee to lease portions of Uhuru Park and Central Park to private service providers contravenes Section 58(1)(c) of the Public Private Partnerships Act, which requires the contracting authority to undertake stakeholder consultations in accordance with the Constitution and other written laws; that no evidence has been provided to demonstrate that Nairobi residents, civil-society organizations or environmental experts were consulted before the decision was made and that this omission violated the principle of participatory environmental governance under Article 10 of the Constitution. 19. Further, it was contended, there is no evidence that the proposed project has been evaluated and approved by the County Public Private Partnerships Committee as required under Sections 59(1) and (2) of the Public Private Partnerships Act; that it has not seen any record of deliberations or approval by that Committee before the Cabinet adopted the impugned resolution and that the Cabinet’s decision to lease sections of the parks for private management without complying with the Public Private Partnerships Act and the applicable constitutional safeguards amounts to a multilayered breach of the law. 20. It was stated that despite the Petitioner’s written requests and the obligation of proactive disclosure under the Access to Information Act, the Respondents have not provided adequate ELC EP PET. NO. E033 OF 2024 JUDGMENT 12

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information demonstrating that the renovations are necessary, comprehensive, beneficial or consistent with international standards governing urban green spaces. 21. According to the Petitioner, the Respondents have kept undisclosed the circumstances under which the parks were opened or closed, the nature of the works being undertaken, the structures intended to be added or removed and the timelines for completing the renovations. It averred that the secrecy surrounding those matters compounds the infringement of rights that ought to be enjoyed by all persons within Nairobi County. 22. The Petitioner asserted that responsibility for the urban green sector is assigned to county governments under the Fourth Schedule to the Constitution and that the Respondents are therefore responsible not only for managing Nairobi’s green spaces, but also for developing the legislation and policies necessary to govern the sector in accordance with the Constitution and the relevant statutory framework. 23. Further, it was deposed, urban planning requires a proper balance between development and the preservation of nature, including through the integration of green spaces into urban landscapes and that sustainability has consequently become a central consideration in urban planning and policy formulation because of its direct effect on the environment and the wellbeing of urban residents. In support of that position, the ELC EP PET. NO. E033 OF 2024 JUDGMENT 13

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Petitioner produced the study entitled An Analysis of Urban Green Spaces, Policies, Laws and Institutional Frameworks in Dandora Estates, Nairobi County. 24. The Petitioner ultimately contended that the Respondents had failed to consider the environmental, social and legal implications of the renovation works; enact the necessary legislation; or make adequate provision for green spaces within every sub-county. In doing so, they had failed to discharge their mandate and uphold sound urban-planning practices. 25. The Respondents did not file responses to the Petition. 26. The 1st Interested Party filed a replying affidavit sworn on 10 th December 2024 by Florence Muturi, its Chief Executive Officer. She stated that the Law Society of Kenya is a statutory body governed by the Law Society of Kenya Act, 2014, whose mandate includes assisting the courts in matters relating to legislation and legal practice, upholding the Constitution and the rule of law, and protecting members of the public in matters relating to the environment. 27. Ms. Muturi explained that the Law Society had been joined to the proceedings constitutional to safeguard rights, the particularly public’s those legal and relating to environmental conservation and access to public green spaces. She maintained that Section 4 of the Law Society of Kenya Act empowers the Society to assist the public and the Government in legal ELC EP PET. NO. E033 OF 2024 and justice matters, including JUDGMENT 14

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environmental governance, and to ensure compliance with the constitutional and statutory provisions protecting the environment and the public’s right to access and enjoy green spaces. 28. She contended that the continued closure of Central Park and the intermittent closure of Uhuru Park violate Articles 42, 69 and 70 of the Constitution. She further relied on Sections 3, 58 and 72 of the Environmental Management and Coordination Act, 1999. She also cited Section 36(3)(c) of the Urban Areas and Cities Act, 2011, which obligates county governments to provide adequate recreational areas and public spaces in urban planning. 29. According to Ms. Muturi, public green spaces are held by the State and county governments in trust for the benefit of the public, and their arbitrary or unjustified closure violates the public trust doctrine. She added that Sustainable Development Goal 11 underscores the need to make cities inclusive, safe and sustainable, including by ensuring access to green spaces. She asserted that green spaces play an essential role in maintaining urban ecological balance, mitigating pollution and providing recreational facilities. 30. Consequently, it was deposed, restricting public access to such spaces, concretizing them or converting them to commercial use undermines environmental sustainability and the public good. She further contended that the closure of Central Park ELC EP PET. NO. E033 OF 2024 JUDGMENT 15

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and the intermittent opening of Uhuru Park had been undertaken without adequate public participation, contrary to Articles 10 and 69(1)(d) of the Constitution and Section 3 of the Environmental Management and Co-ordination Act. 31. On that basis, the 1st Interested Party supported the Petition and urged the court to grant the reliefs sought, together with any other orders necessary to protect the public interest and the environment and to uphold justice. Submissions 32. The Petitioner filed submissions dated 19 th March 2026. Counsel submitted that the prolonged closure of Central Park and the intermittent closure of Uhuru Park violated the Constitution; that Central Park has remained closed since November 2021, disclosed ostensibly for timeline, completion renovations, date, without any notice or public explanation and that although Uhuru Park was reopened on 30 th March 2024, it had thereafter been opened and closed intermittently without notice. 33. Counsel argued that those actions violated Articles 42 and 47 of the Constitution as well as the Fair Administrative Action Act, 2015, having been done without notice, lawful justification or public participation; that no published legislation, policy or guidelines governed the closure or management of the parks, which were instead being administered through verbal instructions and that the Cabinet ELC EP PET. NO. E033 OF 2024 JUDGMENT 16

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resolution of 3rd December 2024, resolving to lease and rent spaces within Uhuru Park and Central Park to private service providers through constitutionally and public-private statutorily partnerships, defective because was it was adopted without public participation, a feasibility study, an environmental impact assessment or County Assembly approval 34. On public participation, counsel relied on Article 10 of the Constitution and the Public Private Partnerships Act, contending that stakeholder consultation was required before approval of a PPP project and that the statutory safeguards governing PPP projects had not been complied with. Counsel further relied on the statutory requirement for County Assembly approval before execution of a county PPP project agreement. 35. The resolution was additionally challenged under the public trust doctrine, counsel contending that public parks and similar resources are held by government in trust for present and future generations and cannot be transferred to private commercial interests without public oversight and environmental safeguards. 36. Reliance was placed on M.C. Mehta vs Kamal Nath (1997) AIR 1997 SC 3885, Anami & 2 Others (Suing as Officials of Rhapta Road Residents Association) vs County Executive Committee Member (CECM) Built Environment and Urban Planning, Nairobi City County & 20 Others ELC EP PET. NO. E033 OF 2024 JUDGMENT 17

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[2025] KEELC 128 (KLR), and Orange Democratic Movement Party & 4 Others vs Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR). 37. As regards the alleged failure by the Respondents to enact legislation, policies or guidelines governing the management, access to and protection of public green spaces in Nairobi County, counsel characterized that failure as a sustained abdication of constitutional responsibility since the advent of devolution. 38. Reliance was placed on Civil Appeal No. E160 of 2025 – Claire Kubochi Anami & Others suing as Officials of Raphta Road Residents Association vs Environment & Urban Planning, Nairobi City County and 19 Others in which the Court of Appeal directed Nairobi City County to finalise, adopt through the County Assembly and gazette lawful zoning and development plans. Counsel argued that the same principle applied to public green spaces, which ought not to be managed in the absence of an ascertainable legal and policy framework. 39. Counsel anchored the positive obligation to act in Articles 42, 69 and 70 of the Constitution. Reliance was placed on Adrian Kamotho Njenga vs Council of Governors & 3 Others [2020] eKLR for the proposition that the right to a clean and healthy environment is ELC EP PET. NO. E033 OF 2024 enjoyed by present and JUDGMENT future 18

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generations and imposes corresponding obligations upon the State to conserve and protect the environment. 40. The Petitioner’s Counsel further relied on Mitu-Bell Welfare Society & 2 Others vs Attorney General & 2 Others; Haki Na Sheria Initiative (Interested Party) [2021] KESC 9 (KLR), submitting that courts possess jurisdiction to grant supervisory and structural relief requiring public bodies to take affirmative measures where constitutional obligations have remained unfulfilled. 41. On reliefs, counsel relied on Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR and submitted that the Petitioner had identified the constitutional rights allegedly infringed, demonstrated their connection to the constitutional provisions invoked and established the manner of their violation. 42. In particular, counsel relied on Articles 10, 35, 42, 47, 69 and 70, pointing to the prolonged and intermittent park closures, alleged concretization, failure to disclose information concerning park operations and the Cabinet resolution of 3 rd December 2024. It was submitted that the court is empowered under Articles 23 and 70 of the Constitution to grant appropriate relief, including those sought. 43. The 1st to 5th Respondents filed submissions dated 15 th May 2026. Counsel first challenged the competence of the Petition. ELC EP PET. NO. E033 OF 2024 JUDGMENT 19

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It was submitted that as explained in Anarita Karimi Njeru vs Republic (No. 1) [1979] eKLR and Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR, a party seeking the enforcement of fundamental rights and freedoms under Article 22 of the Constitution must plead with reasonable precision the specific rights alleged to have been violated, the constitutional provisions relied upon and the manner in which the Respondents’ conduct occasioned the alleged violations. 44. It was further submitted that, notwithstanding the absence of a replying affidavit, the Petitioner bears the burden of proving its case; that in the present Petition, the Petitioner is said to have made broad constitutional allegations without demonstrating how the specific acts or omissions of each Respondent constitute violations of the constitutional provisions invoked. Counsel submitted Constitution that broadly whereas confers Article 22 of standing to institute the constitutional proceedings, an organization purporting to act on behalf of a particular constituency has to demonstrate its authority to do so. 45. It was urged that the Petitioner has not exhibited its constitution, certificate of registration or any mandate authorizing it to represent more than four million Nairobi residents; that its asserted representational capacity is therefore unverified and merely conclusory, and that the court ELC EP PET. NO. E033 OF 2024 JUDGMENT 20

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ought not to assume that it has the authority to act for the stated constituency. 46. On the alleged violation of Article 42, counsel submitted that the Petitioner had misconstrued the scope of the right to a clean and healthy environment, which protects against environmental degradation but does not guarantee unrestricted access to a particular public space at all times. Reliance was placed on Moffat Kamau & 9 Others vs Greenbelt Movement & 11 Others [2015] eKLR for the proposition that constitutional rights, though interpreted purposively, should not be extended beyond their constitutional foundations. 47. Counsel maintained that the closure of Central Park for renovations did not, without more, amount to environmental degradation, particularly as no scientific data, environmental assessment or expert evidence had been produced to demonstrate actual or likely environmental harm. Adrian Kamotho Njenga vs Council of Governors & 3 Others [2020] eKLR was distinguished on the basis that it concerned the State's affirmative obligation to provide sanitation infrastructure, which was directly connected to environmental health. 48. It was further argued that the Petitioner had not identified any statutory provision requiring advance public notice before renovation of public infrastructure and that the procedural protections under the Fair Administrative Action Act, 2015 ELC EP PET. NO. E033 OF 2024 JUDGMENT 21

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were only engaged where administrative action affected a legally cognizable right or fundamental freedom. 49. Reliance was placed on Kenya Revenue Authority & Another vs Majanja & Another [2019] eKLR. Counsel added that the Petitioner having acknowledged that Uhuru Park had reopened on 30th March 2024, the reliefs relating to its reopening were moot. Cited in support was Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others [2014] eKLR. 50. On public participation in relation to the Cabinet Resolution of 3rd December 2024, counsel submitted that the complaint is premature and misconceived. It was argued that Article 10(2) (a) of the Constitution and the Public Private Partnerships Act, 2021 do not require public participation at every stage of internal governmental deliberation. 51. Counsel distinguished Orange Democratic Movement Party & 4 Others vs Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR) with the present circumstances noting that it concerned legislation with direct and binding legal consequences, while the KICC privatization dispute concerned a completed privatization of a national monument. In contrast, it was submitted that no PPP agreement had been executed, and none of the park had been transferred to a private entity. 52. Counsel for the Respondents further submitted that Sections 54-61 of the Public Private ELC EP PET. NO. E033 OF 2024 Partnerships Act, JUDGMENT 2021 22

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prescribed procedures applicable to the implementation of a PPP project and maintained that the Petitioner had prematurely invoked those requirements before the statutory process had been triggered or bypassed. 53. On the alleged failure to enact legislation and establish green spaces, counsel submitted that the prayers requiring the Respondents to enact legislation governing public green spaces and establish at least one extensive green space in each of Nairobi's seventeen sub-counties offended the doctrine of separation of powers under Articles 1(3), 94, 185 and 186 of the Constitution. 54. Although the court possesses remedial jurisdiction under Article 70(2), counsel argued that it cannot prescribe the content of legislation to be enacted by the County Assembly, whose legislative authority is constitutionally vested under Article 185. Reliance was placed on Speaker of the National Assembly vs Karume [2008] 1 KLR 425 for the proposition that where the Constitution prescribes a particular procedure for doing an act, that procedure must be followed. 55. Counsel similarly distinguished Mitu-Bell Welfare Society & 2 Others vs Attorney General & 2 Others [2021] KESC 9 (KLR), arguing that the structural relief granted there was tied to a specific and ascertainable constitutional obligation, whereas the order sought here would require the creation of green spaces across seventeen sub-counties, with substantial ELC EP PET. NO. E033 OF 2024 JUDGMENT 23

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fiscal, planning, land acquisition and engineering implications. Relying also on Government of the Republic of South Africa vs Grootboom 2001 (1) SA 46 (CC), counsel urged that decisions concerning allocation of public resources, use of public land and prioritization of infrastructure properly belong to the executive and legislative branches. 56. On the public trust doctrine, the Respondent’s counsel disputed the contention that it prohibited PPP arrangements involving public parks. While acknowledging that public resources must be managed for the benefit of the public, counsel submitted that the doctrine did not preclude regulated commercial arrangements intended to improve their management or accessibility. 57. It was submitted that the Public Private Partnerships Act, 2021 itself contemplated partnerships between public entities and private actors in the provision of public services and infrastructure. M.C. Mehta vs Kamal Nath (1997) AIR 1997 SC 3885 was distinguished as involving the alienation of public trust land for exclusive private commercial benefit and environmental degradation, unlike the proposed arrangements in the present case, which had not been shown to restrict public access or impair the ecological integrity of the parks. 58. On the alleged violation of Article 35, counsel submitted that the right of access to information is governed by the structured procedure under the Access to Information Act, 2016, including ELC EP PET. NO. E033 OF 2024 JUDGMENT 24

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the procedure contemplated by Section 8, applicable timelines and recourse to the Commission on Administrative Justice. It was submitted that the Petitioner had not demonstrated that it pursued that statutory process, was denied information through it and exhausted the prescribed remedies before approaching the Court. 59. Counsel further contended that Article 35(3) did not render all Cabinet deliberations and resolutions subject to automatic proactive disclosure, noting that executive processes may legitimately attract a measure of confidentiality necessary for effective government. 60. Finally, counsel submitted that the allegations concerning concretization and nightclubs unsupported is proposed by construction of evidence, there hotels and being no photographs, site inspection reports, architectural plans or official communications establishing the alleged developments. It was argued that ordinary renovation works, including paving footpaths, constructing ablution facilities, installing lighting or providing kiosks, did not in themselves amount to unlawful concretization and that the Petitioner had failed to establish the nature, extent or environmental impact of any construction undertaken within either park. 61. The 1st Interested Party filed submissions dated 11th May 2026. Counsel submitted that the prolonged and intermittent closure of Uhuru Park, together with the continued closure of Central ELC EP PET. NO. E033 OF 2024 JUDGMENT 25

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Park, violated the public’s right to a clean and healthy environment under Article 42, read together with Articles 69(1)(a), 69(1)(d) and 70 of the Constitution. 62. It was argued that public parks provide important environmental and social benefits, including urban cooling, carbon sequestration, biodiversity conservation, recreation and community well-being, and that prolonged denial of access consequently interfered with the enjoyment of those benefits. Reliance was placed on Peter K. Waweru vs Republic [2006] KEHC 3202 (KLR), which referred to Zia vs WAPDA PLD 1994 SC 693 on the relationship between life, dignity and a clean environment. 63. Counsel also Principle invoked 1 of the Stockholm Declaration on the Human Environment, 1972, Article 24 of the African Charter on Human and Peoples’ Rights, 1981, and Principle 1 of the Rio Declaration on Environment and Development, 1992, as recognizing the relationship between environmental quality, human dignity and sustainable development. 64. Counsel further submitted that the proposed leasing and commercialization of Uhuru Park and Central Park through a Public-Private Partnership offends the public trust doctrine. Reliance was placed on M’Rinjiru vs National Land Commission & 3 Others (Petition E005 of 2024) [2024] KEELC 13775 (KLR) for the proposition that sustainable ELC EP PET. NO. E033 OF 2024 JUDGMENT 26

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development, the precautionary principle, public trust doctrine, intergenerational equity and the polluter-pays principle form part of Kenyan environmental jurisprudence. 65. On public participation, counsel relied on Articles 10 and 69(1)(d) of the Constitution and Principle 10 of the Rio Declaration on Environment and Development, 1992, contending that the decision to lease and commercialise portions of Uhuru Park and Central Park could not lawfully be made without public involvement and access to relevant environmental information. Citing Mui Coal Basin Local Community & 15 Others vs Permanent Secretary, Ministry of Energy & 17 Others, Constitutional Petition No. 305 of 2012, and Republic vs Attorney General & Another ex parte Hon. Francis Chachu Ganya, JR Misc. Application No. 374 of 2012, counsel submitted that a public body must design a participatory process appropriate to the subject matter, provide accurate, timely and sufficient information, and afford the public a genuine opportunity to express its views. 66. On the proposed public-private partnership, counsel submitted that the intended leasing and commercialization of Uhuru Park was being pursued through an opaque process without adherence to the constitutional and statutory safeguards governing public land, transparency and public participation. ELC EP PET. NO. E033 OF 2024 JUDGMENT 27

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67. Ultimately, counsel submitted that the preservation and accessibility of Uhuru Park and Central Park are constitutional obligations rather than matters of administrative discretion. It was submitted that the prolonged closure of the parks infringes on Article 42, while the proposed leasing and commercialization without public participation offends Articles 10, 35 and 69 of the Constitution. Analysis and Determination 68. Having considered the Petition, responses and submissions, the issues that arise for determination are: i. Whether the Petition is competent? ii. Whether the right to a clean and healthy environment guaranteed under Article 42 includes the right of Kenyans to freely access public, open green spaces, including Uhuru Park and Central Park in Nairobi? iii. Whether closure of Central Park violated Articles 35, 42 and 69 of the Constitution? iv. Whether permanent injunctive orders should issue restraining implementation of Resolution No. 3 of 3 rd December 2024 pending public participation and compliance applicable laws? v. Whether the absence of legislation, policies or guidelines governing the operation and management of public green spaces is unconstitutional and warrants the orders of injunction and mandamus sought? vi. What are the appropriate reliefs to issue? ELC EP PET. NO. E033 OF 2024 JUDGMENT 28

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Whether the Petition is competent? 69. Vide the present Petition, the Petitioner seeks, inter alia, declarations that the prolonged closure of Central Park without notice, explanation or justification violates Articles 42 and 69 of the Constitution; that the failure to disclose the information upon which the closure has been maintained infringes Article 35; and that the right to a clean and healthy environment includes the right of Kenyans to access public open green spaces, including Uhuru Park and Central Park. 70. The Petitioner also challenges the decision to lease and commercialize portions of the parks without public participation and compliance with the applicable constitutional and statutory framework, and seeks orders compelling the Respondents to enact appropriate laws, policies and guidelines governing the management and operation of public green spaces within Nairobi County. 71. The Petitioner’s case is that Central Park has remained closed since 2021, while Uhuru Park has been subjected to intermittent closures without adequate notice or explanation. It further contends that the Respondents have neither disclosed the basis for those closures nor provided the information sought through its letters concerning the reopening of Central Park, the regulation of access to the parks and the proposed leasing or commercialisation of portions of the parks. ELC EP PET. NO. E033 OF 2024 JUDGMENT 29

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72. According to the Petitioner, the absence of an adequate legal and policy framework, coupled with the continued denial of access and the proposed commercial use of the parks, violates Articles 10, 35, 42 and 69 of the Constitution. 73. The Petition is supported by the 1st Interested Party, which similarly maintains that the prolonged closure of Central Park and the intermittent closure of Uhuru Park deny the public the environmental, recreational and social benefits associated with those spaces, and consequently infringes on their right to a clean and healthy environment. The 1st Interested Party further contends that the proposed leasing and commercialisation of portions of the parks, without prior disclosure of relevant information or meaningful public participation, violates Articles 10, 35, 42 and 69 of the Constitution and offends the public trust doctrine. 74. The Respondents did not file a replying affidavit or other evidential response to the factual allegations in the Petition and supporting affidavit. They opposed the Petition through written submissions, raising legal objections to its competence, including the Petitioner’s standing and authority to act on behalf of Nairobi residents and the alleged lack of precision in pleading the constitutional violations. They also challenged the availability of certain reliefs on grounds of prematurity and mootness. ELC EP PET. NO. E033 OF 2024 JUDGMENT 30

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75. To begin with, it is trite that pleadings define the nature and scope of the dispute, identify the issues requiring determination and give each party notice of the case it must meet. The parties are bound by their pleadings, as is the court, and no party may advance a new or different case from that set out in its pleadings. 76. This principle was aptly expressed by the Malawi Supreme Court of Appeal in Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, which quoted with approval Sir Jack Jacob’s article, The Present Importance of Pleadings, published in [1960] Current Legal Problems at page 174, as follows: “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, ELC EP PET. NO. E033 OF 2024 JUDGMENT 31

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the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him justice...In at the all and thus adversarial be a denial of system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.” 77. The significance of pleadings is particularly evident where, as here, the Respondents filed no replying affidavit or other response to the factual allegations made on oath. In Konchellah vs Sunkuli & 2 others (Civil Application 26 of 2018) [2018] KESC 58 (KLR) (7 September 2018) (Ruling), the Supreme Court observed: “A Replying Affidavit is the principal document wherein a respondent’s reply is set and the basis of ELC EP PET. NO. E033 OF 2024 JUDGMENT 32

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any submissions and/or List of Authorities that may be subsequently filed. Absence this foundational pleading, the Replying Affidavit, it follows that even the Written Submissions purportedly filed by the 1st Respondent on 17th August, 2018 are of no effect.” 78. Similarly, the Court of Appeal in Mutai & 9 others vs Attorney General (Civil Appeal 95 of 2016) [2019] KECA 125 (KLR) (28 November 2019) (Judgment) noted: “As stated earlier the Respondents did not file any Replying Affidavit to challenge and/or controvert the sworn averment by the Petitioners that they were victims of the post-election violence...Thus, in essence the averments made by the Petitioner are deemed as uncontroverted and unchallenged.” 79. The distinction between evidence and submissions was further explained by the Court of Appeal in Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & Another [2014] eKLR, as follows: “Submissions are generally parties’ ‘marketing language’, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without ELC EP PET. NO. E033 OF 2024 JUDGMENT 33

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hearing submissions but based only on evidence presented.” 80. It follows that the factual averments contained in the Petition and supporting affidavit remain uncontroverted. The Respondents cannot through written submissions, introduce factual matters that were neither pleaded nor supported by evidence. Accordingly, their submissions cannot constitute an evidential answer to the Petitioner’s case. 81. That position does not, however, preclude the court from considering questions of law properly arising from the pleadings. Beginning with whether the Petition meets the threshold applicable to constitutional litigation, in the wellknown case of Anarita Karimi Njeru vs Republic (No. 1) [1979] eKLR, the court stated that where a person seeks redress for an alleged constitutional violation, the complaint must be pleaded with a reasonable degree of precision, identifying the constitutional provision said to have been infringed, and the manner in which it has been infringed. 82. Indeed, constitutional litigation should not be conducted through vague allegations which leave a respondent to speculate as to the case it is required to answer. Precision serves both procedural fairness and adjudicative discipline. 83. The court has examined the Amended Petition against that standard and is satisfied that the Petitioner has pleaded its case with the requisite precision. It has clearly set out the impugned ELC EP PET. NO. E033 OF 2024 JUDGMENT 34

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acts and omissions, the constitutional provisions alleged to have been violated, the factual basis of each complaint and the reliefs sought. Whether the alleged violations are ultimately established is an evidentiary and substantive question. 84. Turning to locus standi, Article 22 of the Constitution permits proceedings for the enforcement of the Bill of Rights to be instituted not only by a person acting in his or her own interest, but also by a person acting on behalf of another who cannot act in his or her own name; as a member of, or in the interest of, a group or class of persons; in the public interest; or as an association acting in the interest of one or more of its members. Article 258 of the Constitution adopts a similarly expansive approach in proceedings alleging a contravention or threatened contravention of the Constitution. 85. Similarly, Article 70 of the Constitution permits any person alleging that the right to a clean and healthy environment guaranteed under Article 42 of the Constitution has been, is being or is likely to be denied, violated, infringed or threatened to apply to the court for redress. Article 70(3) of the Constitution expressly provides that an applicant need not demonstrate that any person has incurred loss or suffered injury. Section 3 of the Environmental Management and Co-ordination Act reflects the same public-interest approach. 86. The Petitioner does not, therefore, require authority from every resident of Nairobi before raising the matters pleaded in the ELC EP PET. NO. E033 OF 2024 JUDGMENT 35

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Petition. Further, the Respondents have placed no evidence before the court disputing the Petitioner’s pleaded status or legal capacity. The objection to the Petitioner’s locus standi therefore fails. 87. Moving next to the doctrine of mootness. In Dande & 3 Others vs. Inspector General, National Police Service & 5 0thers (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) the Supreme Court described it thus: “The doctrine of mootness requires that controversy must exist throughout judicial proceedings including at the appellate level. An appeal or an issue is moot when a decision will not have the effect of resolving a live controversy affecting or potentially affecting the rights of parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The doctrine of mootness is therefore based on the notion that judicial resources ought to be utilized efficiently and should not be dedicated to an abstract proposition of law and that courts should avoid deciding on matters that are abstract, academic, or hypothetical.” ELC EP PET. NO. E033 OF 2024 JUDGMENT 36

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88. The Respondents contend that the challenge to the proposed leasing of the parks is premature because no lease or publicprivate partnership agreement has been concluded and the plea as regards opening of Uhuru Park is moot considering the same has been opened. 89. The Amended Petition, however, challenges the County Executive Committee’s resolution of 3rd December 2024 and seeks to restrain its implementation pending public participation and compliance with the applicable law. As to the opening of Uhuru Park, the same does not, of itself dispose of the Petition. The Petitioner also challenges its intermittent closure and seeks relief concerning public access to green spaces, the proposed commercial leasing of the park and the framework governing its management. 90. Whether an order directing Uhuru Park’s opening remains necessary is a question concerning the appropriate relief, rather than the competence of the Petition. Ultimately, the court finds that the Petition has been properly been brought. Whether the right to a clean and healthy environment guaranteed under Article 42 includes the right of Kenyans to freely access public, open green spaces, including Uhuru Park and Central Park in Nairobi? 91. The court next turns to the constitutional protection attaching to public green spaces. The question that arises is whether the right to a clean and healthy environment under Article 42 of ELC EP PET. NO. E033 OF 2024 JUDGMENT 37

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the Constitution encompasses public access to urban green spaces. 92. Article 42 guarantees every person the right to a clean and healthy environment. That guarantee includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated under Article 69, and to have obligations relating to the environment fulfilled under Article 70. 93. Article 69 of the Constitution places affirmative obligations upon the State. Those obligations include ensuring the sustainable management and conservation of the environment and natural resources; encouraging public participation in environmental management, protection and conservation; establishing systems of environmental impact assessment, audit and monitoring; eliminating processes and activities likely to endanger the environment; and utilising the environment and natural resources for the benefit of the people of Kenya. 94. Article 70 of the Constitution provides an enforcement mechanism. Where the right under Article 42 has been, is being or is likely to be denied, violated, infringed or threatened, the court may prevent, stop or discontinue an act or omission harmful to the environment, compel a public officer to take appropriate measures or award compensation. ELC EP PET. NO. E033 OF 2024 JUDGMENT 38

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95. These provisions are reinforced by Section 3 of the Environmental Management and Co-ordination Act. EMCA defines the environment broadly to include physical factors such as land, water, atmosphere and climate; biological factors relating to animals and plants; social factors, including aesthetics; and both the natural and built environment. 96. In Adrian Kamotho Njenga vs Council of Governors & 3 others [2020] eKLR, the court recognised that Article 42 of the Constitution protects an entitlement belonging to present and future generations and carries corresponding obligations of conservation and environmental protection. Similarly, in Peter K. Waweru vs Republic [2006] eKLR, the court emphasised that environmental quality is inseparably connected to the conditions necessary for the meaningful enjoyment of life. 97. Before considering the environmental functions of urban green spaces, the court must identify the legal character of Uhuru Park and Central Park. Article 61(2) of the Constitution classifies land as public, community or private. Article 62 of the Constitution provides for public land. It is undisputed that the two parks are public recreational spaces managed by the Nairobi City County Government for public use. 98. Their character as public land follows from their designation and use as public amenities. This position is reinforced by the Physical and Land Use Planning Act, which defines “public purposes” to include public parks, playgrounds, gardens and ELC EP PET. NO. E033 OF 2024 JUDGMENT 39

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sports facilities. Part 2 of the Fourth Schedule to the Constitution also assigns county governments responsibility for cultural activities, public entertainment and public amenities, including county parks, beaches and recreation facilities. 99. It cannot be gainsaid that public urban spaces form part of a city’s environmental infrastructure and perform ecological, recreational, social, cultural and public-health functions. In “Urban Green Spaces in Rapidly Urbanizing Cities: A Socio-economic Valuation of Nairobi City, Kenya,” Cities, Vol. 155 (2024), Article 105430, the authors examined seven green spaces within Nairobi, including Uhuru Park. 100. The study identified urban green spaces as natural buffers against pollution which support biodiversity, absorb and filter storm water, reduce the risk of flooding and improve water quality. They also contribute to physical and mental well-being by providing places for walking, exercise, relaxation and social interaction. The spaces further provide venues for community engagement and cultural activities and thereby promote social cohesion. 101. The study also attractiveness, established security, that proximity, maintenance accessibility, and available infrastructure significantly influence how frequently the parks are used and how long users remain within them. The economic benefits are equally material. ELC EP PET. NO. E033 OF 2024 JUDGMENT 40

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102. The study found that green spaces provide cost-effective alternatives to commercial gyms, hotels and recreational establishments for persons seeking exercise, relaxation and relief from stress. Urban green spaces therefore possess a public value that is not adequately captured by ordinary market transactions. Their value lies not only in the land or vegetation, but also in the environmental and social services made available to the urban population through access. 103. Similar conclusions emerge from the article “Recreational Green Spaces as the Future for Sustainable Cities: Case of Karura Forest in Nairobi, Kenya,” Journal of Sustainability, Environment and Peace, Vol. 5(1) (2022) . That study identifies the benefits of urban green spaces as including air and water purification, temperature regulation, pollution and noise control, biodiversity protection, recreation, reduction of stress and improvement of physical and mental health. 104. International guidance too recognizes the importance of accessible green spaces. As a rule of the thumb, the World Health Organization advises that urban residents should be able to reach a public green space of at least 0.5–1 hectare within 300 metres’ linear distance of their homes. Sustainable Development Goal 11.7 calls for universal access to safe, inclusive and accessible green and public spaces, particularly for women, children, older persons and persons with disabilities. ELC EP PET. NO. E033 OF 2024 JUDGMENT 41

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105. Further, the New Urban Agenda similarly promotes quality public spaces, while Article 24 of the African Charter on Human and Peoples’ Rights recognizes the right of all peoples to an environment favorable to their development. 106. At the national policy level, Section 3.16 of the National Land Use Policy recognizes that population growth, industrialisation and urban development place increasing pressure on infrastructure, public health and the urban environment. It calls for the zoning and protection of open spaces and parks, alongside other environmentally significant areas, and for the provision of green spaces and recreational facilities in residential areas. The Policy also supports the restoration to public use of open spaces and parks that have been irregularly allocated. These measures reinforce the need to preserve urban parks for the public purposes they serve. 107. The foregoing discussion demonstrates that urban green spaces serve important environmental, recreational, social and publichealth functions, the benefits of which are realized through public access. Read together with Section 3(2) of EMCA, which expressly provides that the entitlement to a clean and healthy environment includes access to the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural purposes, the court finds that the right guaranteed under Article 42 of the ELC EP PET. NO. E033 OF 2024 JUDGMENT 42

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Constitution encompasses the right of the public to access and enjoy public parks, including Uhuru Park and Central Park. Whether the closure of Central Park has violated Articles 35, 42 and 69 of the Constitution 108. It is common ground that Central Park has remains closed since 2021. The Petitioner contends that the closure has been maintained without adequate information, justification or public participation. The court will first determine the claim under Article 35 before considering whether the continued closure violates Articles 42 and 69. 109. The right to access information is a fundamental and cornerstone principle in environmental law. It serves as a crucial mechanism for promoting transparency, and accountability in matters related to the environment and is necessary to meet the goals of environmental information and promote sustainable development. Principle 10 of the Rio Declaration on Environment and Development, 1992, provides as follows: “Environmental issues participation all of are best concerned handled citizens, at with the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and ELC EP PET. NO. E033 OF 2024 JUDGMENT 43

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the opportunity to participate in decision – making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” 110. Article 9(1) of the Africa Charter on Human and Peoples Rights states that every individual has the right to receive information. The drafters of our Constitution recognized the paramount significance of this right and conscientiously incorporated Article 35 which guarantees the right of every citizen to: access information held by the state; and information held by another person and required for the exercise or protection of any right or fundamental freedom. 111. Pursuant to Article 35(3), the state is obligated to publish and publicise any important information affecting the nation. These constitutional provisions are buttressed by the Access to Information Act, 2016 which provides a framework for disclosure of information by public and private entities to the public based accountability, on constitutional transparency and principles public relating to participation and access to information. 112. Section 3A of the Environmental Management and Coordination Act, 2015 (EMCA) equally provides that every person has a right to access any information that relates to the ELC EP PET. NO. E033 OF 2024 JUDGMENT 44

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implementation of the Act that is in the possession of the Authority, lead agencies or any other person. Section 3A(2) states that a person desiring information should apply to the National Environmental Management Authority (NEMA) or the relevant lead agency and may be granted access on payment of a prescribed fee. 113. By its letter dated 18th April 2024, the Petitioner raised concerns regarding, among other matters, the reopening of Central Park. The 1st Respondent has conceded that on 20th April 2024, the 1st Respondent’s Governor is said to have undertaken that the park would reopen within thirty days. When that commitment was not fulfilled, the Petitioner sent further letters dated 7th June 2024 and 19th September 2024 seeking information concerning the closure, public participation, the governing policies and the management of public green spaces. 114. Contrary to the assertion that the Respondents declined to respond, the 1st Respondent replied by its letter dated 7 th October 2024. It stated that Central Park had not been formally handed back to the County and remained under the supervision of the Ministry of Defence. It further explained that reopening of the park would be considered upon completion of the rehabilitation works and formal handover of the park. 115. The County also identified the outstanding works, including water and sewer connections to the ablution blocks, connection ELC EP PET. NO. E033 OF 2024 JUDGMENT 45

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of the irrigation system, construction of drainage channels, electrical works, repairs to walkways, works relating to the podium stage, installation of pumps and plumbing and electrical works at the skating rink. 116. The letter therefore disclosed the County’s stated basis for maintaining the closure, to wit, the rehabilitation works remained incomplete, the park had not been formally handed over and specified works were still outstanding. Whether that explanation was sufficient to justify a closure lasting more than three years is a separate question. 117. Article 35 concerns disclosure. It does not determine the legality, reasonableness or proportionality of the decision disclosed. Consequently, it is the finding of the court that the Petitioner has not established the violation of Article 35 of the Constitution as pleaded. 118. Moving next to the alleged violation of Articles 42 and 69 of the Constitution, the court has already found under the preceding issue that access to public urban green spaces implicates the right to a clean and healthy environment. In the present case, it is undisputed that Central Park has remained closed to the public since 2021. The question is whether that prolonged closure was reasonably justified and consistent with the Respondents’ constitutional obligation to manage the park for the benefit of the public. ELC EP PET. NO. E033 OF 2024 JUDGMENT 46

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119. The County’s letter of 7th October 2024 explained that Central Park had not been formally handed back by the Ministry of Defence and that rehabilitation works remained incomplete. However, its letter did not explain the original project period, the progress made, the cause of the delay or when the outstanding works were expected to end. Nor was evidence placed before the court to show why those works required the entire park to remain closed. Given Central Park’s purpose as a public recreational space, its prolonged closure denied the public the opportunity to enjoy its recreational, health and social benefits. 120. Under Articles 69 of the Constitution, the State is required to protect and sustainably manage the environment and to utilise natural resources for the benefit of the people. Those obligations permit the temporary closure of a public park for genuine rehabilitation or safety purposes. They do not permit a public authority to withdraw the park from public use indefinitely on the general assertion that rehabilitation works are continuing. 121. The prolonged closure must also be considered against Article 69(1)(d), which requires the State to encourage public participation in the management, protection and conservation of the environment. This does not mean that every routine, emergency or short-term closure of a public park must be preceded by public participation. However, where a temporary closure develops into the complete exclusion of the public for ELC EP PET. NO. E033 OF 2024 JUDGMENT 47

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several years, its continuation environmental-management becomes decision a substantial requiring meaningful public engagement. No such participation was demonstrated. 122. The court consequently finds that the prolonged closure of Central Park infringes the rights of Kenyans secured under Articles 42 and 69 of the Constitution. Whether permanent injunctive orders should issue restraining implementation of Resolution No. 3 of 3 rd December 2024 pending public participation 123. The Petitioner seeks a permanent injunction restraining the 1 st Respondent from implementing resolution number 3 of the communiqué published on 3rd December 2024, until meaningful public participation has been undertaken and the applicable law complied with, including Sections 54 to 61 of the Public Private Partnerships Act. 124. The impugned resolution reads as follows: “Approval for leasing and renting space at Uhuru and Central Parks: Uhuru and Central Parks are iconic green spaces central to environmental demands, Nairobi’s assets. identity With serving increasing innovative approaches as urban are needed to enhance their infrastructure, attract investment and ensure public access. The cabinet has approved the leasing and renting of designated spaces and ELC EP PET. NO. E033 OF 2024 JUDGMENT 48

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units within these parks paving the way for a phased implementation that aligns with legal environmental and urban development goals. It sets out key objectives and expected benefits.” 125. The Petitioner has not demonstrated that any lease or publicprivate partnership agreement has been executed. The communiqué nevertheless records the County’s approval to lease or rent designated spaces within the parks to generate revenue, with implementation to follow. The issue is whether that decision may lawfully be implemented without the requisite public participation and compliance with the applicable law. 126. Article 10 of the Constitution binds State organs to public participation, transparency, accountability and sustainable development when or public-policy making implementing decisions. Article 69(1)(d) of the Constitution requires the State to encourage public participation in the management, protection and conservation of the environment. At county level, Article 174(c) of the Constitution and Sections 87 and 115 of the County Governments Act reinforce public involvement in governance and planning. 127. Other than the Constitution and the EMCA, Principle 10 of the Rio Declaration on Environment and Development, which is applicable by dint of Article 2(5) and 2(6) of the Constitution, provides that: ELC EP PET. NO. E033 OF 2024 JUDGMENT 49

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“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” 128. The nature of the impugned decision plainly attracts those obligations. Uhuru Park and Central Park are public recreational and environmental spaces. Leasing portions of them to private operators will affect their use, accessibility, physical character and environmental functions. While commercial activities or private-sector participation are not per se unlawful, a decision of that nature cannot be implemented without affording the public a meaningful opportunity to participate. No such public participation has been demonstrated. 129. The Petitioner also seeks an order requiring compliance with Sections 54 to 61 of the Public Private Partnerships Act, ELC EP PET. NO. E033 OF 2024 JUDGMENT 50

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2021 before any arrangement for the running, leasing or commercialization of the parks is implemented. The Act governs qualifying arrangements under which a private party performs a public function or provides a service on behalf of a contracting authority. Resolution No. 3 describes the proposed leasing or renting of spaces, but does not disclose the terms of any arrangement. 130. Sections 54 to 61 of the Act govern the successive steps to be taken from bid evaluation and negotiation through project and risk assessment, approval and execution of a project agreement. If the arrangement ultimately falls within the Act, the County must follow that process. the County Cabinet resolution cannot stand in place of the required approvals. If it takes another form, the County must comply with the laws applicable to that form of arrangement, together with any required planning and environmental approvals. 131. In either case, the Cabinet resolution cannot dispense with the obligation to undertake meaningful public participation and comply with the applicable legal framework. The Petitioner's plea for an injunction restraining implementation of the resolution pending such compliance is, therefore, merited. Whether the absence of legislation, policies or guidelines governing the operation and management of public green spaces is unconstitutional and warrants the orders of injunction and mandamus sought ELC EP PET. NO. E033 OF 2024 JUDGMENT 51

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132. The Petitioner contends that access to Nairobi’s public parks is regulated through verbal instructions rather than published rules on opening hours, conditions of entry and closure. It seeks a declaration that the absence of a governing framework is unconstitutional, and an injunction against further restrictions until legislation or guidelines are adopted. It also seeks mandamus requiring the County to establish at least one extensive green open space in every sub-county and report compliance within one year. 133. County parks and recreation facilities fall within the County’s functions under Part 2 of the Fourth Schedule. Their management is already subject to the Constitution, and other legislation including EMCA, the Physical and Land Use Planning Act, the County Governments Act and other applicable law. Article 185(2) of the Constitution empowers the County Assembly to enact laws for the effective performance of county functions. 134. In its letter dated 7th October 2024, the County indicated that an Urban Greenery Bill and Park Management Plan were under preparation and that stakeholder engagement was being planned. The correspondence demonstrates the County's own recognition of the need for a comprehensive framework to govern the management of public parks. However, no evidence has been placed before the court of any subsequent steps taken towards the finalization or adoption of those instruments. ELC EP PET. NO. E033 OF 2024 JUDGMENT 52

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135. More importantly, the County has not identified any published rules governing the conditions of entry, operating hours or circumstances in which public access to the parks may be restricted. The Petitioner's evidence that access has, at times, been regulated through verbal directions remains uncontroverted. 136. The exercise of public power affecting access to public recreational spaces must have an ascertainable legal basis and be subject to transparent and accountable decision-making. Such access cannot be regulated solely through unpublished or arbitrary directions. The court therefore finds that, although the absence of park-specific legislation does not, of itself, constitute a constitutional violation, the regulation of public access in that manner is inconsistent with Article 10 and undermines the enjoyment of the right guaranteed under Article 42 of the Constitution. 137. The court therefore considers it appropriate to direct the 1 st Respondent to initiate and progress the formulation of the necessary legislative and policy framework, including public participation, and submit the proposed legislation to the County Assembly for consideration within a specified period. 138. The Petitioner further seeks injunctive and mandamus orders compelling the County to keep the parks open until the enactment of the requisite legislation and prohibiting their closure without prior judicial approval. The court considers ELC EP PET. NO. E033 OF 2024 JUDGMENT 53

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these prayers, as framed, to be unduly broad. While the public is entitled to access and enjoy public parks, that right does not preclude the County from exercising its statutory mandate to manage and regulate their use. 139. The County must retain the discretion to prescribe reasonable conditions of entry and to restrict access where necessary for maintenance, rehabilitation, environmental conservation, public safety or other lawful purposes. Such discretion must, however, be exercised lawfully, reasonably and in a manner consistent with the constitutional obligations of transparency and accountability. 140. To grant the orders sought would effectively require the parks to remain open irrespective of circumstances that may legitimately warrant their temporary closure. It would also subject the County's ordinary management decisions to prior judicial approval, thereby placing the court in a supervisory role over functions constitutionally assigned to the County. That is neither necessary nor justified. 141. As regards the prayer for mandamus requiring the county to enact legislation requiring one extensive green open space in each sub-county, the same cannot lie. The Petitioner has identified no law imposing the particular duty pleaded. Furthermore, the location, size and provision of additional parks require planning decisions concerning available land, competing uses, infrastructure and public resources. ELC EP PET. NO. E033 OF 2024 JUDGMENT 54

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142. Those choices rest in the first instance with the County’s planning, executive and legislative authorities. The court accordingly declines the invitation to issue mandamus orders. The County remains bound by Articles 42 and 69 of the Constitution to protect existing public green spaces and to address their provision and accessibility through lawful urban planning. What are the appropriate reliefs? 143. In the end, and for the reasons I have given above, the Petition partly succeeds in the following manner; a) A declaration does hereby issue that the right to a clean and healthy environment guaranteed under Article 42 includes the right of Kenyans to freely access public, open green spaces, including Uhuru Park and Central Park in Nairobi. b) A declaration is hereby issued that the Respondents’ prolonged closure of Central Park violates Kenyans’ right to a clean and healthy environment under Article 42, read together with Article 69 of the Constitution. c) A permanent restraining injunction the is Respondents, hereby issued whether by themselves, their agents, servants or any person acting under their authority, from implementing Resolution No. ELC EP PET. NO. E033 OF 2024 3 of the County Executive JUDGMENT 55

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Committee communiqué published on 3rd December 2024, concerning the leasing and renting of designated spaces within Uhuru Park and Central Park, until meaningful public participation has been undertaken and the applicable constitutional and statutory requirements, including the provisions of the Public Private Partnerships Act, 2021, where applicable, have been complied with. d) A declaration is hereby issued that the regulation of public access to Uhuru Park and Central Park solely through unpublished or arbitrary directions, without an ascertainable legal basis, is inconsistent with Article 10 of the Constitution and undermines the enjoyment of the right guaranteed under Article 42 of the Constitution. e) An order is hereby issued directing the 1st Respondent to take the necessary steps towards the formulation of appropriate legislation, policies or guidelines governing the management, protection and operation of public parks and open green spaces within Nairobi County, and to submit the proposed legislative framework to the County Assembly for consideration within twelve (12) months from the date of this Judgment. ELC EP PET. NO. E033 OF 2024 JUDGMENT 56

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f) An order does hereby issue directing the immediate opening of Central Park to the public. g) Each party shall bear its own costs. Dated, signed and delivered virtually in Nairobi this 8 th day of October, 2026. O. A. Angote Judge In the presence of: Ms Mwinzi holding brief for Waweru for Petitioner Mr. Kipkorir for Kiplagat for 1st – 5th Respondent Ms Kwaga for 1st Interested party Court Assistant: Tracy. ELC EP PET. NO. E033 OF 2024 JUDGMENT 57

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