The Environment and Land Court has dismissed a petition challenging the upgrade of the Ihithe–Ndunyu Njeru Road, handing the Kenya National Highways Authority (KeNHA) a major legal victory and paving the way for the project to proceed through the Aberdare Forest Reserve and Aberdare National Park.
In a judgment delivered on July 17, a three-judge bench comprising Justices Samuel Gacheru, Oscar Eboso and Anthony Olola ruled that the project could proceed after finding that adequate environmental safeguards had been put in place to protect the ecologically sensitive area.
The judges found that KeNHA’s Environmental and Social Impact Assessment (ESIA) Study Report, together with the conditions contained in the Environmental Impact Assessment (EIA) license issued by the National Environment Management Authority (NEMA), provides sufficient measures to minimize environmental impacts if fully implemented.
The decision ends a court battle that began after the East Africa Wildlife Society and three other petitioners challenged the planned upgrade of the road from murram to bitumen standard.
The petitioners argued that the project, which passes through the Aberdare National Park, would violate Articles 10, 11, 42 and 69 of the Constitution, particularly the right to a clean and healthy environment. They also sought a permanent injunction to stop the project.
Also Read: Court Blocks Plan to Place IPOA Under Interior Ministry
Court Finds KeNHA Met Environmental Requirements
In its judgment, the court found that the petitioners had failed to demonstrate that the environmental approvals issued for the KeNHA project were inadequate.
Instead, the judges held that the ESIA report prepared for the project comprehensively addressed potential environmental risks and proposed mitigation measures to protect wildlife, forests, water catchments, and other sensitive ecological features within the Aberdare ecosystem.
The court further observed that NEMA strengthened those protections by attaching elaborate conditions to the EIA license before approving the project.
According to the judges, the environmental safeguards contained in both the ESIA report and the EIA license can protect the environment, provided they are strictly implemented during construction and operation of the road.
The ruling means KeNHA can proceed with the upgrade, but only while complying with the environmental obligations set out by NEMA.
Constitution Supports Sustainable Development
A key issue before the court was whether the constitutional right to a clean and healthy environment automatically precludes the undertaking of infrastructure projects in environmentally sensitive areas.
Also Read: Ex-KDF Soldier Peter Mugure Addresses Court After Being Sentenced for Killing Wife, Two Children
The judges rejected that argument, saying the Constitution requires a balance between environmental conservation and national development.
“Article 42 of the Constitution is not a veto to infrastructure development…What the Constitution demands is environmentally sustainable development,” read part of the ruling.
Consequently, the court declined to issue the permanent injunction sought by the petitioners, finding no legal basis to halt the project.
Existing Road, Not a New Highway
The judges also addressed concerns that the KeNHA project would open a completely new transport corridor through the protected area.
They noted that the works involve upgrading an already existing motorable murram road into a bitumen-standard highway rather than constructing a new road through the forest.
During the hearing, the bench visited the project site and travelled on the existing road to better understand the nature of the proposed works.
Following the visit, the judges confirmed that the project entails improving an existing route linking Ihithe in Nyeri County and Ndunyu Njeru in Nyandarua County, which passes through the Aberdare Forest Reserve and Aberdare National Park.
Follow our WhatsApp Channel and X Account for real-time news updates.
