Environment court greenlights case against Mau Mau road project, cites constitutional rights

The court dismissed the Kenya National Highways Authority's (KeNHA) preliminary objection, which sought to block the case on jurisdictional grounds.

The East Africa Wildlife Society, Kenya Forest Working Group, Africa Centre for Peace and Human Rights, and Lempaa Suvianka have filed a petition, claiming that the proposed 52-kilometer road project violates several constitutional rights, including the right to a clean and healthy environment, biodiversity protection, and cultural heritage preservation. 

The petitioners also argue that the project will irreversibly harm the Aberdare ecosystem, causing deforestation, biodiversity loss, and worsening climate change effects.

The three-judge bench, which included Justices L.N. Gacheru, B.M. Eboso, and J.O. Olola, ruled that the court has the authority to hear the case because the issues raised in the petition are fundamental constitutional rights, not just environmental concerns. 

The court emphasized that the National Environment Tribunal (NET), which KeNHA claimed should handle the dispute, lacks the authority to hear cases involving alleged constitutional violations.

"The petition raises serious constitutional issues, including the right to a clean and healthy environment, concerns about climate change, and threats to biodiversity. These issues cannot be adjudicated by the NET. It is the Environment and Land Court that is vested with the jurisdiction to deal with such matters," the court stated in its ruling.

The court also noted that the petitioners' claims are more than just a challenge to KeNHA's Environmental Impact Assessment (EIA) license; they also raise broader constitutional issues. 

These include allegations of conflict of interest in the EIA process, violations of the principles of public participation, and the possibility of irreversible environmental damage.

KeNHA argued that the petitioners should have exhausted all alternative remedies available under the Environmental Management and Coordination Act (EMCA), including an appeal to the NET, before approaching the court. 

However, the judges rejected this argument, citing recent Supreme Court precedents that allow individuals to seek constitutional relief directly when other remedies are insufficient.

"The right to access the court for redress of alleged constitutional violations should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms," the court stated, quoting a 2023 Supreme Court ruling.

Environmental activists and conservationists welcomed the court's decision as a significant victory for environmental protection and constitutional rights.

"This ruling reaffirms the importance of safeguarding our natural heritage and ensuring that development projects do not come at the expense of the environment and the rights of future generations," said a spokesperson for the East Africa Wildlife Society.

The case will now proceed to a full hearing, during which the court will consider the merits of the petitioners' claims.

The outcome of this case could have far-reaching implications for future infrastructure projects in environmentally sensitive areas, particularly those involving national parks and forest reserves.

The Mau Mau Road project, which is part of the government's Vision 2030 development agenda, aims to boost connectivity and economic growth in Central Kenya.

However, critics argue that the project's environmental costs outweigh its benefits, particularly given the fragile nature of the Aberdare ecosystem, which supports several endangered species and serves as an important water catchment area.