Blow as court extends order halting road project in Aberdares

The proposed road in Nyeri and Nyandarua counties is 97.8 km long.

In Summary
  • The main section starts at Ihithe, takes a southwesterly course through the Nyayo Tea Zone, and enters Aberdare National Park.
  • The road then emerges from the park at about 33km at Mutubio Gate.
One of the waterfalls in the Aberdare ecosystem.
CONSERVATION: One of the waterfalls in the Aberdare ecosystem.

Environment and Land Court Judge in Nyeri has again extended the conservatory order on the proposed road set to cut through the Aberdares into two.

The judge has now referred the matter to the Chief Justice for the formation of an uneven bench.

This is not the first time the court has halted the project.

On April 15, the court halted the controversial project.

The order sought to preserve Aberdare National Park and Aberdare Forest by stopping the Kenya National Highways Authority or their agents from continuing the planned construction or any activity concerning the construction of Mau Mau LOT 4: Ihithe-Ndunyu Njeru Road traversing the Aberdare National Park and Aberdare Forest.

The move halted the project pending an interparty hearing of the application on April 29, before the Environment and Land Court Judge in Nyeri.

Justice James Olola had issued orders that he would give further directions on June 3.

“It is hereby ordered that the conservatory orders granted on April 15, 2024, shall remain in place pending further directions herein on June 3, 2024, when the application is to be heard,” Olola said.

The judge ordered all the proposed interested parties to file and serve their respective applications upon all parties within seven days.

He also gave respondents 10 days from April 29 within which to respond to the petitioner’s application dated March 22, as well as five days for the several applicants as filed by the proposed interested parties.

East Africa Wildlife Society is the first petitioner, the Kenya Forest Working Group is the second and Africa Centre for Peace and Human Rights is the third, while lawyer Lempaa Suyianka is the fourth petitioner.

Respondents include the Kenya National Highways Authority, Kenya Water Towers Agency, Norken International Limited and the National Environment Management Authority, who are the first, second, third, and fourth respondents, respectively.

Interested parties include the Law Society of Kenya, National Museums of Kenya, Kenya Wildlife Service and Kenya Forest Service.

Nyandarua Senator John Methu and the Conservation Alliance of Kenya (CAK)  have been listed as intended interested parties and proposed interested parties, respectively.

The National Environment Management Authority approved the project on January 5 and issued an environmental impact assessment licence to the KeNHA to proceed.

The CAK appealed the decision at the National Environment Tribunal.

Nema in the tribunal case was cited as the respondent, while KeNHA is an interested party in the petition.

“The respondent erred in fact and law by issuing an Environmental Impact Assessment licence with conditions that are inconsistent with the EIA process, fail to provide any sufficient mitigation measures, and are too broad, weak, and not specific or detailed enough to mitigate the long-term environmental and climate impacts of the project,” the petition seen by the Star says.

The proposed road in Nyeri and Nyandarua counties is 97.8km long.

The main section starts at Ihithe, takes a southwesterly course through the Nyayo Tea Zone, and enters Aberdare National Park.

The road then emerges from the park at about 33km at Mutubio Gate.

From this gate, the road descends through a series of hairpin bends to Kahuruko.

The stretch between Mutubio Gate and Kahuruko, which is about 10km, is tarmacked.

From Kahuruko, the project road continues to descend and ends at its junction with the C69 Road at Ndunyu Njeru.

Other road sections included in the project are the Njengu-Treetops Gate-Amboni, Ihithe-Kiamutiga-Mukara, Ark Gate Access, Munyaka-Koinange-Heni-Mwendandu and Njoma-Weru road sections, bringing the number to 46 km.

CAK says Nema erred in law and fact by failing to adequately assess project alternatives despite the existence of viable alternative routes that have more socioeconomic benefits and are less financially and environmentally costly.

“The respondent erred in law and fact by issuing an EIA license based on an EIA report that is manifestly deficient in public participation.”

The organisation says Nema also failed by approving a project that did not include a comprehensive climate risk and vulnerability assessment in the EIA report.

The authority erred in law by approving the project, which is to be located in a natural ecosystem of national importance as it is one of the five main water towers in the country.

“It is an ecologically sensitive area that is unfit for the proposed project."

CAK faults Nema for issuing an EIA licence without taking into account the population density and distribution of threatened species.

The cited species include the critically endangered black rhino, mountain bongo antelope, African elephant, leopard, indigenous tree species,and white-backed vulture nesting sites.

CAK alleges Nema issued the EIA licence based on a report that did not include a biodiversity study.

The EIA licence does not consider the cultural and historical importance of the Aberdares ecosystem.

“The respondent erred in law and fact by issuing an EIA licence based on a fundamentally flawed EIA report plagued with misrepresentations, inconsistencies and omissions.”

Pending the hearing and determination of the appeal, the alliance wants the EIA licence dated January 5 issued by Nema to KeNHA, suspended.

Nema has defended the road.

“Analysis of route alternatives established that the proposed road is the most cost-effective route to connect Ndunyu Njeru in Nyandarua county to Ihithe in Nyeri county," the authority said in a brief.

It said that the road would cut the travel time by more than one hour and 30 minutes over the other available alternatives.

"This will not only stimulate tourism activities in the Aberdare ecosystem but also spur the economic development of the local communities and surrounding counties,” the agency said. 

Conservationists condemned Nema’s action, saying it is putting a fragile ecosystem at risk.

Nema requires the implementation of a comprehensive offset and compensation plan for tree species to be cleared for the controversial road through the Aberdare ecosystem.

As part of the conditions of the licence, KeNHA has been tasked with developing and carrying out the plan.

The licence covers 185 acres of bamboo, 35 acres of montane forest and 35 acres of moorland.

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