Forum & another v Cabinet Secretary, Ministry of Lands, Public Works, Housing & Urban Development & 4 others (Environment and Land Petition E011 of 2026) [2026] KEELC 5226 (KLR)
The bottom line
#Kenya's Environment and Land Court halted construction of a state lodge, airstrip and golf course in Nkunga Forest until an environmental court case is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case warranting conservatory orders
The applicants established an arguable case with inherent merits, founded on alleged non-compliance with EMCA sections 57A and 58, the Wildlife Conservation and Management Act, and the absence of proven public participation
The court applied the Munya v Kithinji and Uhuru Secondary School thresholds. The respondents could not demonstrate compliance with sections 57A and 58 EMCA before commencing the projects. The quality of public participation exhibited in the respondents' minutes required plenary interrogation, but its absence as alleged raised an arguable case ex facie. Arguability, not ultimate success, is the measure at this stage.
Whether failure to grant conservatory orders would defeat the substratum of the petition
Continuation of the projects before determination of the petition would defeat it; conservatory orders preserve the substratum and vindicate Articles 48, 50(1) and 27 rights
The petition's crux is preservation of Nkunga/Upper Imenti Forest and the Article 42 right to a clean and healthy environment, engaging Article 69 forest-cover obligations, sustainable development, water catchment and GHG emissions concerns. Allowing the projects to proceed would render the petition nugatory and drive the petitioners from the seat of justice prematurely.
Application of the precautionary principle
The precautionary principle, codified in section 3(5) EMCA, favours preservation pending full interrogation
The court invoked the principles of sustainable development in section 3(5) EMCA, including the precautionary principle, intergenerational equity and public participation, to hold that preservation of the forest pending trial was the appropriate course.
Misjoinder objection by the 5th respondent
The court did not determine the misjoinder objection; the 5th respondent remained bound by the conservatory order
The 5th respondent argued it had no mandate over Upper Imenti Forest and that the petition disclosed no cause of action against it. The court framed only two issues for determination and did not pronounce on joinder; the conservatory order issued against all respondents.
Legal principles established
#- A party seeking a conservatory order in a constitutional case must demonstrate a prima facie case with a likelihood of success and real danger of prejudice if the order is not granted
- Conservatory orders are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes
- Absence of the requisite NEMA environmental impact assessment licence renders a commenced project apparently contrary to the law and supports a prima facie case
Court orders
#- 1.The Application dated the 24.06.2026 be and is hereby allowed
- 2.A conservatory order restraining the Respondents from undertaking any works relating to the construction of the proposed state lodge, airstrip, golf course or any related development within Nkunga Forest, pending the hearing and determination of the petition
- 3.The rest of the prayers, in particular prayer [4] (production of feasibility studies, environmental assessments, cabinet approvals, county resolutions, survey plans and public participation reports), is declined
- 4.Costs of the application shall abide the outcome of the Petition
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution, 2010 read with the Environment Management and Coordination Act, 1999 (2015) and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Forum & another v Cabinet Secretary, Ministry of Lands, Public Works, Housing & Urban Development & 4 others (Environment and Land Petition E011 of 2026) [2026] KEELC 5226 (KLR)", Case Analysis (2026). (Not stated in the judgment extract; petition accompanied by Notice of Motion dated 24.06.2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5226/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.