Awino v Attorney General & 8 others

Conservation and Management Act; and Sections 8 and 9 of the Fair Administrative Actions Act; and wherein the petitioner/applicant [hereinafter referred to as the applicant] has sought various reliefs. 2. The reliefs sought are: i. …………………………… Spent. ii. Pending the hearing of this application inter-partes, a conservatory order do issue restraining the Respondents, their servants, agents, assigns, ocers, licensees, contractors or any person acting under their authority from excising, alienating , licensing, granting easements or wayleaves over, issuing a special user license for , entering upon, clearing, fencing, surveying, beaconing, constructing on , or otherwise dealing with any part of Imenti Forest for an airstrip, golf course, state lodge, bypass, utilities, roads or any related development. iii. Pending the hearing and determination of the petition a conservatory do issue in terms of prayer 2 above. iv. Pending the hearing and determination of the petition, an order do issue directing the 2nd and 3rd respondents to place before court and preserve all correspondence, internal memoranda, requests, maps, survey records, special user licence applications, easements requests, cabinet or ministerial approvals, site reports, minutes, environmental assessments and all documents relating to the proposed developments within Imenti forest, including any communications referenced in the public statement issued by the Green Belt Movement on 04.06.2026. v. Pending the hearing and determination of the petition, an order do issue directing the 4th respondent and the 2nd interested party to preserve and produce all records touching on public land oversight , environmental licensing, environmental impact assessment, public participation and approvals relating to the Imenti Forest and the impugned projects. vi. Pending the hearing and determination of the petition, a mandatory conservatory orders do issue compelling the respondents to maintain the prevailing status quo in Imenti Forest and to refrain from any step capable of changing the physical, legal or ecological character of the forest. vii. Costs of this application be provided for. viii. Such other or further orders do issue as this Honourable court may deem t and just. 3. The instant application is premised on the grounds contained in the body thereof. The grounds are: Imenti Forest constitutes public land; Imenti forest is one of the key components of the larger Mount Kenya ecosystem; the forest constitutes biodiversity habitat; the forest also constitutes a key water catchment area/tower; the actions complained of are intended to annihilate the forest; the consequences of the impugned actions shall be irreversible; and the actions/omissions complained of constitute violation of the right to clean and healthy environment. 4. The instant application is supported by the adavit of Francis Awino sworn on even date. The deponent of the supporting adavit has reiterated the grounds contained in the body of the application. In addition, the deponent has annexed four sets of documents including: Copy of the excerpt relating to the amendments of Section 256 [2] of the Forest Conservation and management Act; copy of newspaper publication by Wanjira Mathai; and copy of publications showing plans to curve out portions of Imenti Forest. 5. Furthermore, it has been averred that the actions complained of shall subject the forest to destruction and destroy biodiversity habitat. To this end, the court has been invited to nd and hold that the application is meritorious. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 2

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6. The 1st, 2nd and 3rd respondents led a replying adavit in opposition to the application. The replying adavit contends inter alia, that the application before the court is premature and misconceived; the actions complained have not accrued; the subject application is speculative in nature and same does not disclose a reasonable cause of action. 7. The 5th respondent led grounds of opposition dated the 29.06.2026. The 5th respondents have raised various issues. The issues include: The petition that underpins the application is decient and fatally defective; the applicant has not established/met the threshold for granting the conservatory orders; the issues raised vide the petition and the application are speculative; the application is premised in admissible newspaper cuttings; and the application is bereft of merits. 8. The 6th respondent also led grounds of opposition and wherein same has highlighted the same sets of grounds as the ones canvassed by the 5th respondent. 9. The 1st interested party led grounds of opposition dated the 26.06.2026. The 1st interested party has contended thus: The petition before the court is decient and defective; the petition does not disclose any reasonable course of action against the interested party; the applicant has not met the threshold for the grant of the orders sought and the petition and the application violate the doctrine ripeness. 10. The application came up for directions on the 30.06.2026, whereupon the advocates for the parties agreed to canvass the application by way of written submissions. Thereafter, the court issued directions pertaining to the ling and exchange of the written submissions. In particular, the court set the timelines for the exchange of submissions. 11. The petitioner applicant led written submissions dated the 20.07.2026 and wherein same has highlighted six [6] issues. The issues are: Whether the petition and the application satisfy the constitutional threshold of precision; whether the material placed before the court discloses a real and imminent threats to Imenti Forest; whether the alleged public participation and environmental material disclosed by the respondent meet constitutional and statutory standards; whether the petition is premature and defeated by the doctrine of exhaustion; whether the petitioner has met/satised the threshold for the grant of conservatory orders; and whether public interest favours the preservation of the forest pending the hearing and determination of the petition. 12. In a nutshell, the applicant herein has submitted that the actions complained of shall destroy the forest, and aect biodiversity habitat. In addition, it has been submitted that the impugned actions are being undertaken without due regard to the provisions of the constitution and various Acts of Parliament. Moreover, the applicant has impugned the public participation that is alleged to have been undertaken by the respondent. 13. The applicant has thereafter cited various decisions. The decisions include: Annarita Karimi Njeru versus Republic [1979] eKLR; Mumo Matemu versus Trusted Society of Human Rights Alliance and another [2013] eKLR; and Save Lamu and 5 others versus National Environmental Management Authority and another [2019] eKLR. 14. The 1st , 2nd and 3rd Respondents have led written submissions dated the 15.07.2026. The named of respondents have canvassed four [4] key issues. The issues are: The applicant has not met the threshold for the grant of the conservatory orders; the proposed projects are still at the preliminary stages of evaluation; the application by the applicant is premature; and the public interest militates against the grant of the conservatory orders. 15. Learned counsel for the 1st, 2nd and 3rd respondents [the named respondents], has thereafter cited and referenced assorted decisions to buttress the submissions. The decisions include: The Board of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 3

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Management of Uhuru Secondary School versus The City County Director of Education and 2 others [2015] eKLR; Center for Rights Education and Awareness [CREAW] versus the Speaker of the National Assembly and 2 others [2017] eKLR; Gatirau Peter Munya versus Dickson Mwenda Kithinji and 2 others [2014] eKLR; Martin Nyaga Wambora versus the Speaker of the County Assembly of Embu and 3 others [2104] eKLR and IEBC versus National Super Alliance – Kenya [NASA] and 6 others [2017] eKLR. 16. In a nutshell, learned counsel for the 1st, 2nd and 3rd Respondents has submitted that the subject application is not only premature but same is devoid of merits and legally untenable. The court has been invited to dismiss the application. 17. The 5th respondent led written submissions dated the 20.07.2026 and wherein same has canvassed three issues. The issues are: Whether the petitioner has established a prima facie case or otherwise; whether that failure to grant the orders sought shall render the petition nugatory; and whether the public interests favors the issuance of the conservatory orders or otherwise. 18. Learned counsel for the 5th respondent has contended that the applicant has neither demonstrated nor established any prima facie or arguable case, which is a pre-condition to the grant of conservatory orders. It has been contended that the petition and the subject application are premised on news paper cuttings and which are legally inadmissible. Absent credible evidence it has been submitted that the orders sought cannot issue. 19. Secondly, learned counsel for the 5th respondent has submitted that the failure to grant the orders sought shall not defeat or render the petition nugatory. In addition, it has been contended that the amendments of section 56 [2] of the Forest Conservation and Management Act, was intended to facilitate economic growth while safeguarding environmental concerns. 20. Additionally, it has been submitted that the petition by the applicant is speculative in nature and hypothetical. It has been contended that the applicant shall not be disposed to suer any loss or at all. 21. Thirdly, it has been submitted that the implementation of the impugned projects is intended to provide public goods to the people of Meru and that the public benets, far outweigh the environmental concerns [considerations] raised by the applicant. In particular, it has been posited that public interest supersedes the hypothetical assertions by the applicant. 22. Learned counsel for the 5th respondent has thereafter cited assorted decisions. The decisions are: Munya versus Kithinji and 2 others [2014] KESC 30; Board of Management of Uhuru Secondary School versus City County Director of Education and 2 others [2015] KEHC 2174; Wanjiru Gikonyo and 2 others versus National Assembly of Kenya and 4 others [2016] KEHC 5536; Mwakaneno versus Registrar of Titles – Mombasa and 7 others [2026] KECA 296; IEBC versus Al Ghurair Printing and Publishing LLC and 5 others; National Super Alliance [2017] KEHC 4663; and IEBC versus Al Ghurair Printing and Publishing LLC and 5 others; National Super Alliance [2017] KECA 436, respectively. 23. The 1st interested party led written submissions dated the 14.07.2026. The 1st interested party has raised four key issues. The issues are: Whether the application discloses an arguable prima facie case as against the 1st interested party whether the petition will be rendered nugatory if the orders sought do not issue; whether the public interest favors the grant of the orders sought; and whether application is, in any event, premature. 24. Thereafter learned counsel for the 1st interested party has cited assorted decisions to underpin the submissions. The decisions cited are: Munya versus Kithinji and 2 others [2014] KESC 30; Gitau and 635 others versus Principal Secretary Ministry of Lands, Public Works , Housing and Urban https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 4

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Development and 5 others [2023] KEELC; Adeba and 17 others versus National Land Commission and 4 others; Nairobi City County [interested party] [2024] KEELC; Nkatha and 76 others versus the District Surveyor – Isiolo County and 7 Others; Kaindio and 565 others [2025] KEELC; and Kassam and 12 others versus Exotic Real Estates Limited and 12 others [2026] KEELC, respectively. 25. Simply put, learned counsel for the 1st interested party has contended that the petition does not raise any reasonable cause of action as against the 1st interested party insofar as the Upper Imenti forest does not fall under the mandate of the County Government of Meru. In addition, it has been posited that the actions complained of, are yet to commence and hence both the petition and the application, are premature and thus legally untenable. 26. Having reviewed the notice of motion application, the supporting adavits thereto; the responses on behalf of designated respondents; and upon consideration of the written submissions by /on behalf of the respective parties, three [3] key issues emerge for determination. The issues are: Whether the petition discloses a reasonable cause of action as against the 1st respondent or otherwise; whether the petition by the applicant discloses /exhibits a prima facie case; and whether the failure to grant the conservatory orders shall defeat the petition or otherwise. 27. Regarding the rst issue, learned counsel for the 1st 2nd,3rd and 5th respondents have submitted that the petition beforehand does not disclose any reasonable cause of action. In particular, it has been contended that the Upper Imenti Forest [the forest] constitute public land under the National Government. To this end, learned counsel for the named respondents have referenced the Provisions of Articles 62 and 63 of the Constitution, 2010. 28. Furthermore, learned counsel has submitted that the alteration of the boundaries of the forest and the excision of portions thereof, if any, are functions of the National Government and the various states agencies. It has been contended that the county Government of Meru has no role in respect of the activities complained of. In this regard, learned counsel has submitted that the petition, is premature and misconceived. 29. The applicant has relied on the contents of the supporting adavit and posited that the county government of meru is actively involved in the oensive projects. In particular, the applicant has referenced the various correspondence generated by the Governor- Meru County Government; the publications in the newspapers; and has thereafter contended that the threats to the forest is real. 30. The applicant has equally referenced the various engagements that were undertaken between the Governor – Meru County and the Principal Secretary in the Ministry of Environment Climate Change and Forestry. It has been posited that the County Government has been properly impleaded and that a cause of action has been duly established. 31. I have examined the petition; the adavit in support of the petition; the supplementary adavit thereto; the annextures that have been referenced; the various engagements between the Governor – County Government of Meru and the P S – Ministry of Environment, Climate Change and Forest; and I wish to point out that the totality of the evidence, shows some level of involvement of the County Government of Meru in the oensive Activities. 32. The bottom line is that the petition indeed discloses a reasonable cause of action as against the respondents, including the 1st interested party. Moreover, it is not lost on me that Upper Imenti Forest fall within the jurisdiction of the County Government of Meru and by dint of Sections 34 and 37 of the Wildlife Conservation and Management Act, 2016, no action can taken as pertains to the forest and the national reserve, without its involvement. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 5

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33. Other than the foregoing it is also worthy to point out that the utilization and exploitation of the environment and the natural resources, including the Upper Imenti Forest, is supposed to be undertaken sustainably, and for the benets of the people of Kenya. I dare add that the people of Meru County who are represented by the 1st interested party, do have a say in the exploitation of the resources in terms of Article 69 of the Constitution, 2010. 34. I have said enough to demonstrate that the petition clearly establishes a reasonable cause of action as against all the respondent and the 1st interested party. In any event, there is no gain saying that the petition can still be redeemed by way of amendments. Furthermore, there is no gainsaying that where a petition raises some semblance of issues, which ought to be interrogated, then the court must be guided by the provisions of Article 159 [2] [d] of the Constitution, 2010. 35. Before concluding on this issue, it is apposite to reference the holding of the court in the case of Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR), where the court highlighted the meaning of a cause of action. 36. The court stated thus: “ A cause of action is a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. See Letang vs Cooper[1964] 2 All ER 929 at 934, per Lord Diplock. Lord Esher, M. R. in the case of Read vs Brown (1888), 22 QBD 128, dened a cause of action as:-“Every fact which it would be necessary for the plainti to prove, if traversed, in order to support his right to the judgment of the court”. 37. Simply put, it is my nding that there is a cause of action that has been established against the respondents and the 1st interested party. As to whether the petition shall eventually succeed against the respondents and the 1st interested party, is a dierent matter. Same can only be engaged with during the plenary hearing. 38. Next is the issue as to whether the petition raises a prima facie case? It is imperative to reiterate that any applicant, the current applicants not excepted, who seek to procure a conservatory order, are obligated to demonstrate/establish the existence of an arguable case, popularly, referenced as a prima facie case. The requirements pertaining to proof of a prima facie case, or an arguable case, has been underscored in a plethora of decisions. 39. In the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR), the court [Per J. L Onguto – Judge as he then was] [may his soul rest in peace] stated as here under: Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]: “[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suer prejudice as a result of the violation or threatened violation of the Constitution”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 6

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It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others – v- The Attorney General (Supra) stated as follows:“I would agree with my brother that an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success” (emphasis). 40. Furthermore, the necessity to demonstrate an arguable case, which was baptized/characterized as the inherent merits of the case, was underscored in the case of Munya v Kithinji & 2 others [2014] KESC 30 (KLR). The supreme court highlighted the principles in the following terms: 7. Conservatory orders bare a more decided public-law connotation: for they are orders that facilitate orderly functioning within public agencies, as well as uphold the adjudicatory authority of the Court in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues like “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay. 8. Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes. 41. Has the applicant established an arguable case on the basis of the petition or otherwise? To start with, the applicant has contended that the impugned projects has been commenced prior to and before compliance with the mandatory provisions of Sections 18, 34 and 37 of the Wildlife Conservation and Management Act, 2016. The provisions of Sections 34 and 37 of the Act [supra] are couched in mandatory terms. In addition, the said provisions provide an elaborate process that must be complied with the boundaries of a gazzetted forest can be altered and or adjusted. 42. Additionally, there is the contention that the project, or better still the proposed project, as the 2nd and 3rd respondents would want to call it, is bound to culminate to excision of the forest and thus lead to deforestation. The legal implications of such actions, may lead to several consequences, including violation of the principles espoused vide Article 69 of the Constitution, 2010. There is also a likelihood of the impugned actions violating the state obligations under the convention of biodiversity [CBD]; the UNFCCC; the Paris Agreement; and the various conventions on the protection of the endangered species. 43. On the other hand, there is also the weighty arguments, touching on and concerning the quality of public participation, if any, was undertaken. The applicant posits that the impugned project is being undertaken, without public participation and involvement of the key stake holders. It has been contended that in the absence of the public participation, the oensive project is unconstitutional. 44. The 1st, 2nd and 3rd respondents, have maintained that same undertook public participation and to this end, same [the named respondents have exhibited minutes alluding to public participation. 45. The question that does arise and which the court will have to interrogate, touches on the quality of the public participation; whether there was prior public awareness; and whether the key stake holders https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 7

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including the applicant was involved. This issue cannot be determined at the interlocutory stage. It will require examination of the evidence during a plenary hearing. 46. Be that as it may, I wish to point out that the question of public participation, or its adequacy, is yet another critical ingredient that works in favor of the applicant. In the absence of public participation, unless the contrary is proven, in the manner contended by the applicant, then a prima facie case does arise. 47. The importance of public participation and the parameters [guidelines] to be deployed in ascertaining whether the scope of public participation, met the constitutional threshold, was highlighted by the supreme court in the case British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Aected Party) [2019] KESC 15 (KLR). The court highlighted the following: From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to nd their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation: Guiding Principles for public participation (i) a constitutional principle under article 10(2) of the Constitution, public participation Applies to all aspects of governance. (ii) The public ocer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. (iii) The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give eect to this constitutional principle using reasonable means. (iv) Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulll’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation. (v) Public participation is not an abstract notion; it must be purposive and meaningful. (vi) Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis. (vii) Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. (viii) Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 8

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(ix) Components of meaningful public participation include the following: a. clarity of the subject matter for the public to understand; b. structures and processes (medium of engagement) of participation that are clear and simple; c. opportunity for balanced inuence from the public in general; d. commitment to the process; e. inclusive and eective representation; f. integrity and transparency of the process; g. capacity to engage on the part of the public, including that the public must be rst sensitized on the subject matter. 48. On the basis of lack of public participation, in the manner posited by the applicant, I nd and hold that there is an arguable case. Simply put, the applicant has exhibited what ex facie [on the face of it] is arguable. In addition, the petition has inherent merits, which would require investigations, during the plenary hearing. 49. Before concluding on this issue, it suces to reference Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), where the court highlighted the meaning of a prima facie case. It was stated thus: Prima facie” is a Latin phrase for “at rst sight”, whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried”, “a question which is not vexatious or frivolous”, “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332. 31. 50. Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a denition for “prima facie case” in civil cases in the following words:“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sucient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” The next issue relates to whether the failure to grant conservatory orders, will defeat the substratum of the petition. To begin with, the crux of the petition is the preservation and conservation of the Upper Imenti forest, which constitute part of the wider Mount Kenya ecosystem. In addition, it is also not lost on me that the substratum of the petition also entails the conservation of the environment in accordance with the provisions of Article 42 of the Constitution, 2010. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 9

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51. Then there is the contention that the intended excision of the Upper Imenti forest and the construction of the state lodge; the air strip; and the golf course, will culminate into deforestation. A question has been raised as pertains to the provisions of Article 69 [a] and [c] of the Constitution, 2010. The constitution commanded that the state ensures and takes positive measures towards a forestation. Constitutionally, the acreage comprising of forest should be equal to 10% of the land mass. 52. We are yet to reach there, despite the constitution having lived with us for more than 16 years. However, the apprehension at the foot of the current petition, is to the eect that instead of taking positive steps forward, there appears to be backward steps. The question that shall be addressed is whether the impugned projects may [I say may] impact on the Article 69 Principles. 53. Other than the foregoing, there is the principle of sustainable development. The principle herein postulates that developments, like the one in question, ought to take into account Environmental consideration. There is the need to utilize and exploit the environment in such a manner that would take care of the future generations. The court will be called upon to interrogate whether the principle of ecological sustainable development; and inter and intra generation equity, have been considered. 54. Additionally, the petition raises the impact of the projects on the water catchment and the general eects, including remission of GHC gases, into the atmosphere. These are issues that will be interrogated. 55. The bottom line is to the eect that the project in question, will have ripple eects, on the environment and thus the continuation thereof, before the subject petition is heard and determined, will no doubt defeat same. There shall also be the need to interrogate the utility of the impugned projects, including value addition; and existing alternatives available [if any]. 56. Crucially, I hold the view that a failure to grant the conservatory orders, would be tantamount to driving the petitioner/applicant away from the seat of justice, albeit prematurely. Such an endeavor would be contrary to the tenor of Articles 42, 48, 69, 70 and 258 of the Constitution, 2010. 57. Finally, I am alive to the precautionary principle. The principle herein has been dened vide Section 3 [5] of the Environment Management and Coordination Act, 1999 [2015]. The section states thus: In exercising the jurisdiction conferred upon it under subsection (3), the Environment and Land Court shall be guided by the following principles of sustainable development— (a) the principle of public participation in the development of policies, plans and processes for the management of the environment; (b) the cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law; (c) the principle of international co-operation in the management of environmental resources shared by two or more states; (d) the principles of intergenerational and intragenerational equity; (e) the polluter-pays principle; and (f) the pre-cautionary principle. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 10

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58. In a nutshell, I nd and hold that the grant of the conservatory orders, will operate to preserve the substratum of the petition. It will also vindicate the rights of the petitioners in terms of Article 48 and 50 [1] of the Constitution, 2010. In addition, it shall ensure equality of arms, as espoused in Article 27 [1] and [2] of the Constitution, 2010. Conclusion 59. The applicant herein approached the court seeking conservatory orders to prohibit the commencement and undertaking of the oensive projects. It was incumbent upon the applicant to demonstrate inter alia, that the petition has inherent merits and thus worthy of investigations during the plenary hearing. Pertinently, proof of the inherent merits [arguable petition] is a critical precondition, to the granting of a conservatory order. 60. I beg to state that the applicant has indeed espoused cardinal issues, which would warrant due interrogations and investigations. The issues include: lack of public participation; threat to the ecological sustainability of the wider Mount Kenya Ecosystem, threat to the water catchment area; threat to the clean and health environment and non-compliance with EMCA Act, 1999 [2015]. 61. In short, the applicant has met the threshold. In any event, there is no gainsaying that a failure to grant the conservatory orders, may [and I say may] lead to permanent destruction of the forest; destruction of the wild ora and fauna; interference with the biodiversity habitat; and thus culminate into irreversible consequences. Environmental issues, and concerns are far reaching; and even when the scientic loss is neither foreseeable nor quantiable, the precautionary principle commands due intervention. Final orders: 62. Consequently, and in the premises, the nal orders that commend themselves to the court are: a. 63. The Application dated 08.06.2026 be and is hereby allowed as hereunder. i. There be and is hereby issued a conservatory order restraining the Respondents, their servants, agents, assigns, ocers, licensees, contractors or any person acting under their authority from excising, alienating , licensing, granting easements or wayleaves over, issuing a special user license for , entering upon, clearing, fencing, surveying, beaconing, constructing on , or otherwise dealing with any part of Imenti Forest for an airstrip, golf course, state lodge, bypass, utilities, roads or any related development pending the hearing and determination of the petition. ii. There be and is hereby issued and order directing the 2nd and 3rd respondents to preserve all correspondence, internal memoranda, requests, maps, survey records, special user licence applications, easements requests, cabinet or ministerial approvals, site reports, minutes, environmental assessments and all documents relating to the proposed developments within Imenti forest, including any communications referenced in the public statement issued by the Green Belt Movement on 04.06.2026. iii. There be and is hereby issued an order directing the 4th respondent and the 2nd interested party to preserve and produce all records touching on public land oversight, environmental licensing, environmental impact assessment, public participation and approvals relating to the Imenti Forest and the impugned projects iv. Costs of the application shall abide the outcome of the petition. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 11

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DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF JULY, 2026 OGUTTU MBOYA, FCIArb; CPM [MTI]. JUDGE In the presence of: Court Assistant: Zakayo Francis Awino – The petitioner/applicant present in person. Mr. Obura [Principal State Counsel] for the 1st, 2nd and 3rd respondents. Ms. Otieno for the 5th Respondents Ms. Jara for the 6th Respondent Mr. Mwereru for the 1st Interested Party. N/ A for the 2nd Interested Party. N/A for the 3rd Interested Party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5981/eng@2026-07-30 12

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