East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 9 others (Environment and Land Petition E001 of 2024) [2026] KEELC 4670 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a petition challenging the Aberdare road project, clearing the way for construction to proceed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the 3rd Respondent had acted in conflict of interest in preparing the Environmental Impact Social Assessment Report (EIA) and if so, the consequences thereof
- 2.Whether or not the intended construction of the proposed Mau Mau Lot 4: Ihithe-Ndunyu Njeru Road violates Articles 10, 11, 42 and 69 of the Constitution of Kenya, 2010
- 3.Whether the Proposed Road Project Requires a Strategic Environmental Assessment
- 4.Whether in the circumstances herein, the Petitioners are entitled to the Prayers sought in this Petition
Key legal issues
#Conflict of interest in the ESIA study
No conflict of interest established; the applicable 2003 Regulations did not require a conflict declaration and Section 58 EMCA permits the proponent to undertake the EIA study
The court examined Section 58 EMCA and Regulation 13 of the 2003 Regulations, and relied on R (on the application of) vs Derbyshire County Council to explain that the proponent's assessment may be flawed but the safeguard is NEMA's independent evaluation and public consultation. PW1 conceded the Code of Ethics does not bar the designer from doing the ESIA. The 2025 Regulations requiring a conflict-of-interest declaration were not retrospective.
Violation of Article 10(2) (transparency, accountability, public participation)
No violation; the 2024 licence was based on a new ESIA Study Report on new terms of reference, and public participation was adequate
The court found the 4th Respondent issued the licence on a new ESIA Study Report of 2023 that addressed the concerns in its 2009 rejection letter. Public participation included a newspaper notice on 18/4/2023, stakeholder meetings, workshops and written submissions; the 1st Petitioner itself submitted a memorandum. Following the Supreme Court's principles in British American Tobacco, participation must be real and meaningful, which the court found was satisfied.
Violation of Articles 11, 42 and 69 of the Constitution
Not proved; mitigation measures in the ESIA Study Report and EIA Licence conditions are exhaustive and safeguard the environment if implemented
The court independently evaluated the ESIA Study Report, the EIA Licence conditions (including the offset and compensation plan) and its site visit, which confirmed the project is an upgrade of an existing motorable murram road. The Petitioners failed to tender evidence showing the mitigation measures were insufficient, and reliance on Gwer placed the burden of proof on them. Sustainable development principles guided the finding that the State did not abdicate its Article 69 obligations.
Requirement of a Strategic Environmental Assessment (SEA)
A SEA was not a legal precondition to the EIA licence under the law in force in 2024
Section 57A EMCA and Regulation 42 of the 2003 Regulations apply SEA to policies, plans and programmes, not to individual projects. The Environmental Management and Co-ordination (Strategic and Integrated Environmental Impact Assessments and Environmental Audits) Regulations 2025 were not in force when the licence was issued and cannot apply retrospectively. Additionally, the Cabinet Secretaries responsible for Vision 2030 policies were not sued and cannot be condemned unheard.
Legal principles established
#- Section 58 of EMCA allows any person including the project proponent to undertake the EIA study, and there is no legal bar to the designer of a road conducting its ESIA; the safeguard lies in NEMA's independent assessment
- Legislation cannot apply retrospectively unless it expressly states so; the EMCA (Impact Assessment and Audit) Regulations 2025 do not apply to an ESIA done in 2022-23
- Under the law prevailing in 2024, a Strategic Environmental Assessment was not a mandatory precondition to the issuance of an EIA licence for a road project; SEA applies to policies, plans and programmes
- Article 42 of the Constitution is not a veto on development; where an EIA licence identifies impacts and provides adequate mitigation measures, the project should be allowed to proceed
- A petitioner alleging violation of a constitutional right bears the burden of tendering evidence proving the alleged violation
Court orders
#- 1.The Petition dated 22nd March, 2024 is dismissed entirely
- 2.No costs awarded, the litigation being public interest litigation
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- Jurisdiction invoked
- Original constitutional petition jurisdiction of the Environment and Land Court under Articles 42 and 70 of the Constitution; jurisdiction previously confirmed in a Ruling delivered 13th March 2025
Relief refused
#Declaration that KENHA's plan to build the Mau Mau Lot 4 road violates Articles 10, 11, 42 and 69 of the Constitution
Petitioners did not prove violation; the 4th Respondent based the 2024 licence on a new ESIA Study Report and adequate mitigation measures were in place
Declaration that development in water towers is limited to eco-tourism and research
Not established on the evidence
Permanent injunction forbidding the Respondents from building the road
Petition dismissed entirely
Declaration of conflict of interest against Norken International Ltd
No law bars an EIA expert from conducting an ESIA study for a project in which it has a pecuniary interest; the assessment is done by NEMA as an independent statutory body
Structural interdicts directing preparation of alternative routes and a joint biodiversity inventory
Petition dismissed entirely
Personal responsibility of KENHA, KWTA and NEMA Director Generals/CEOs and bearing of litigation costs
No violation proved; additionally the court awarded no costs as public interest litigation
Costs
No costs awarded - "This was a public interest litigation. Consequently we award no costs." (effectively each party to bear their own costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It follows that we did not find any merit in the Petition. Accordingly, we hereby dismiss it entirely.
This was a public interest litigation. Consequently we award no costs.
we were unable to find any law that bars an EIA expert from conducting an ESIA study for a project even where it had a direct pecuniary interest therein.
It is trite law that legislation cannot apply retrospectively unless it expressly states so.
under the law that existed in 2024, the 1st Respondent was not obligated to procure a strategic environmental assessment study report for the purpose of the EIA Licence.
" Article 42 is not a veto; the right to a clean and healthy environment does not mean that development must stop. It means that development must be sustainable."
If all the mitigation measures are implemented as outlined in the ESIA Study Report and in the EIA Licence, the affected environment will be safeguarded and will be clean and healthy.
The project will entail an upgrade of an existing motorable murram road to bitumen standard.
Issues in the judgment
#Inconsistent paragraph numbering/jump at paragraph 85-86 where quoted petition paragraphs 58-65 appear and the narrative resumes mid-numbering
Paragraph 109 refers to the '5th Respondent' where the 5th Interested Party is evidently meant
The 1st Respondent is stated to have received approval of new terms of reference vide a letter dated 21/11/2011, which appears to be a typographical error given the 2009-2024 chronology
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 9 others (Environment and Land Petition E001 of 2024) [2026] KEELC 4670 (KLR)", Case Analysis (2026). Petition dated 22nd March, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4670/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.