Chega (Suing on their Own Behalf and as the Registered Official of Active Environment Team) v Kenya Forest Service & another; Kiambu Sawmillers & 10 others (Interested Parties)
The bottom line
#Kenya's Environment and Land Court stopped Kenya Forest Service timber tenders because no environmental assessment or genuine public participation happened first.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC vis-à-vis the Public Procurement Administrative Review Board
The ELC alone has jurisdiction; the Board cannot enforce constitutional environmental rights
The gravamen of the petition was the extension of the logging moratorium and alleged constitutional and statutory violations. The Board's mandate under section 27(1) of the Public Procurement and Asset Disposal Act covers tendering disputes only and it cannot grant constitutional reliefs. Article 162(2)(b) and section 13 of the ELC Act confer jurisdiction over environmental disputes, and articles 42, 69 and 70 clothe the ELC with power to redress environmental rights violations.
Whether an EIA was required before the impugned tenders
Yes; no EIA was conducted and one ought to have preceded the tenders
Section 58(1) and (2) of EMCA, the second schedule to EMCA (as amended by Legal Notice No 31 of 2019 listing timber harvesting in plantation forest) and regulation 17 of the EMCA Regulations require an EIA before such activities. The respondents' claim that an existing EIA sufficed failed because an EIA licence is valid for only 24 months. The court found no EIA was conducted prior to commencement of the tenders.
Whether there was adequate public participation
No; the participation notice appeared the same day as the tender invitation, which did not constitute prior participation
Articles 10(1) and (2), 69(1)(d) and 232(1)(d) of the Constitution and section 4(b) of the FCM Act impose an obligation of public participation. The notice calling for public participation appeared in the press on the same day the invitation to tender was published, which did not justify a finding that participation preceded the invitation. The respondents therefore contravened the Constitution and statute laws.
Whether the petitioner's right to a clean and healthy environment was violated or threatened
The right was under threat and at risk of violation
Article 42 guarantees the right to a clean and healthy environment and article 70 confers standing. Commencement of the impugned tenders without an EIA and without adequate public participation was contrary to the Constitution and applicable statutes, placing the petitioner's environmental right under threat. Courts have a solemn duty to enforce this right in the context of environmental harms.
Legal principles established
#- Timber harvesting in plantation forests requires an Environmental Impact Assessment prior to commencement, and an EIA licence is valid for only 24 months
- The exhaustion doctrine applies only where the alternative forum is accessible, affordable, timely and effective; the PPARB cannot grant constitutional reliefs or enforce environmental rights
- Public participation must precede the invitation of tenders for disposal of forest materials; simultaneous publication of a participation notice does not suffice
Court orders
#- 1.Declaration that the 1st and 2nd respondents acted in contravention of sections 6(1), 55, 59, 61, 72(5), 73(2) of the Forest Conservation and Management Act, 2016 in purporting to set aside, lift or replace the November 2018 Logging Moratorium, thereby violating articles 1(3)(a), 2(1) and (2), 3(1), 10, 21(1),(2) and (3), 24(4) and (5), 42, 47(1) and (2), 69, 71, 73 and 232 of the Constitution
- 2.Declaration that the 1st and 2nd respondents cannot overhaul, set aside, lift or replace the November 2018 Logging Moratorium and allow logging and sale of forest material without undertaking an environmental impact assessment as envisioned under sections 36, 44(2)(a) and (d), 46(1)(c) and 75(3) of the FCM Act, 2016
- 3.Conservatory order staying further implementation of the impugned tender notices (Tender Ref Nos KFS/DISP/02/2021-2022 to KFS/DISP/05/2021-2022) and the Public Inquiry Notice published on November 30, 2021 in the Standard Newspapers
- 4.Each party to bear own costs of the Petition
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and sections 4 and 13 of the Environment and Land Court Act, 2011; articles 22, 23, 42, 69 and 70
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chega (Suing on their Own Behalf and as the Registered Official of Active Environment Team) v Kenya Forest Service & another; Kiambu Sawmillers & 10 others (Interested Parties)", Case Analysis (2022). Constitutional Petition E053 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13738/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.