The Environment and Land Court in Nyeri has ruled that it has a jurisdiction to hear and determine a petition challenging the move by the Kenya National Highways Authority (KeNHA) to build a 52 KM road traversing through Aberdare National Park.
In the case, East African Wildlife Society, Kenya Forest Working Group, African Centre For Peace and Human Rights and Lempaa Suyianka has sued KeNHA, NEMA among other respondents.
The petitioners are seeking orders among which a declaration that Kenya National Highway Authority’s plan to build the Mau Mau Lot 4:Ihithe Ndunyu Njeru Road, traversing the Aberdare National Park and the Aberdare Forest Reserve, violates Articles 10, 11, 42, and 69 of the Constitution, and is therefore invalid.
They also asked Court to issue a declaration that development in water towers is limited to eco-tourism and research, and that in parks and conservancies like the Aberdare National Park, change to any other use is not permitted except for conservation purposes; and a permanent injunctive order restraining KeNHA from building the planned Road.
Further, they asked Court to find that Norken International Limited’s conflict of interest in conducting the environmental social impact assessment(ESIA) with respect to the impugned project violates Articles 10 and 47 of the Constitution, and that the environmental impact assessments (EIA) must be conducted by a neutral and impartial experts.
The Petitioners pleaded with the Court to issue a structural interdict directing KeNHA to prepare and submit to the Court for scrutiny within 90 days of the order, alternative routes for the road passing outside the Aberdare National Park and the Aberdare Forest Reserve.
The Court was also asked to give an order directing the National Environment Management Authority (NEMA) Kenya Wildlife Service (KWS), Kenya Water Towers Agency (KWTA), Kenya Forest Service (KFS), to within 90 days of the order, prepare and present to the Court for scrutiny and thereafter post and update yearly on their website, a joint inventory of biological diversity of Kenya, indicating threatened, endangered, or rare species in Kenya.
It is the petitioners’ case that in order for KeNHA to achieve that goal, it must destroy 25 km of closed canopy forest, thereby destroying the Park and the Reserve, and ruining its unique biodiversity.
The petitioners assert that the proposed road would alter and destroy the Aberdare eco-system forever.
They aver that the proposed road would create deleterious environmental results, cause irreversible damage to a fragile and delicate ecosystem, adding that the project violates the Constitution.
KeNHA opposed the petition saying that Environment and Land Court (ELC) lacks the requisite jurisdiction to hear the matter as there are alternative mechanisms provided under Sections 129-130 of the Environmental Management Coordination Act(EMCA).
According to KeNHA, in line with the Government’s Vision 2030, it commenced construction of the project termed Mau Mau Road in line with the Country’s objective of attaining a sustainable safe road network.
The Court dismissed the preliminary objection saying it was not merited.
