Omariba (Acting for and in Public Interest) v CS, Ministry of Environment and Forestry & 6 others (Environment and Land Petition E007 of 2022) [2025] KEELC 8391 (KLR)
The bottom line
#Kenya's Environment and Land Court has restricted where eucalyptus trees can be planted nationwide, ruling uncontrolled cultivation violates the constitutional right to a clean environment.
What this practically means
#Executive summary
#Key legal issues
#Violation of the right to a clean and healthy environment
The respondents' failure to control and supervise eucalyptus cultivation violated article 42 rights
The court accepted the evidence, including the respondents' own multi-agency technical advisory, that eucalyptus trees are harmful to wetlands, springs and river banks and deplete water tables. Article 42 obliges the state to protect the environment for present and future generations, and article 69 requires elimination of processes likely to endanger the environment. The failure to implement existing guidelines and to legislate constituted a breach.
Separation of powers and judicial law-making
The court cannot itself enact comprehensive legislation on eucalyptus; Parliament must do so, but the court may impose interim limitations
The judge considered whether to pronounce the scientists' recommendations as binding law. Relying on articles 94, 95 and 109 vesting legislative authority in Parliament, and on Doctors for Life and authorities on judicial law-making, he held that Parliament must be given the chance to legislate, while the court, invoking the precautionary principle under section 18 of the Environment and Land Court Act and EMCA, imposed minimum planting limitations.
Application of the precautionary principle
Lack of full scientific certainty does not justify postponing measures against environmental degradation by eucalyptus
EMCA and principle 15 of the Rio Declaration enshrine the precautionary principle. Dr Otuoma conceded residual scientific uncertainty, yet the hazards of eucalyptus are documented. The court held that tough and bold decisions were required in the face of uncertainty to protect present and future generations.
Strict liability for dangerous land uses
The Rylands v Fletcher principle offers remedies to persons harmed by neighbours' hazardous tree planting
The court reviewed Rylands v Fletcher, where a landowner keeping dangerous things on land is strictly liable for their escape, and held that through this common law precedent offended parties, including those whose neighbours plant trees disregarding their right to a clean environment, are not without remedy.
Legal principles established
#- Unplanned, uncontrolled and unsupervised cultivation of eucalyptus trees breaches the constitutional right to a clean and healthy environment
- Pending legislation, courts may impose interim environmental limitations guided by the precautionary principle
- Separation of powers bars courts from legislating comprehensively; that role belongs to Parliament
Court orders
#- 1.Declarations that unplanned, uncontrolled and unsupervised cultivation of eucalyptus trees amounts to a breach of the right to a clean and healthy environment (article 42) and of the right to sustainable development under the Constitution and EMCA
- 2.Declaration that the petitioner's fundamental right to a clean and healthy environment under article 42 has been violated
- 3.Declarations that uncontrolled cultivation has adversely affected surface and ground water and depleted soil nutrients, affecting food security
- 4.Order directing the 1st, 3rd, 4th, 6th and 7th respondents within 30 days to avail a copy of the judgment with recommendations to the Speaker of the National Assembly and Leaders of Majority and Minority to enable enactment of comprehensive policies and laws on eucalyptus cultivation within 12 months
- 5.Order that the Government declare eucalyptus a 'high-impact species' requiring regulated planting zones and develop a legal framework
- 6.Interim countrywide limitations: eucalyptus shall not be planted (and if planted shall be uprooted) less than 30 metres from wetlands, riparian zones, water catchment areas, rivers, streams, ponds and other standing water; in marshy areas without written authority of the Cabinet Secretary; where the water table is less than 20 metres in depth; on irrigated farmlands; in areas receiving less than 400mm average annual rainfall; less than 10 metres from common boundaries and infrastructure utilities; less than 30 metres from public roads; or on land smaller than a quarter acre
- 7.No orders as to costs, this being a public interest litigation
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; sections 13(1) and 18 of the Environment and Land Court Act; articles 42, 69 and 70 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omariba (Acting for and in Public Interest) v CS, Ministry of Environment and Forestry & 6 others (Environment and Land Petition E007 of 2022) [2025] KEELC 8391 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8391/eng@2025-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.