The proposed construction of a controversial road through the fragile Aberdares ecosystem now hangs in the balance after an Environment and Land Court in Nyeri extended conservatory orders, halting the project.
Justice James Olola had initially issued orders halting the project on April 15.
“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 that 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, Kenya Forest Working Group is the second petitioner and Africa Centre for Peace and Human Rights is the third petitioner, while lawyer Lempaa Suyianka is the third petitioner.
Respondents include the Kenya National Highways Authority, Kenya Water Towers Agency, Norken International Limited and 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 Conservation Alliance of Kenya (CAK) have been listed as intended interested party and proposed interested parties, respectively.
The order seeks to preserve the Aberdare National Park and Aberdare Forest by stopping the respondents 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 park and forest.
Publicly available information indicates the existence of an alternative route, the Kariamu-Ndaragwa Road.
Petitioners are concerned by the Kenya National Highways Authority's failure to consider an alternative route.
The alternative route would efficiently connect Nyeri and Nyandarua counties and mitigate adverse, deleterious and irreversible environmental, economic and cultural effects on the protected ecosystem—a critical water tower, biodiversity hotspot, hydroelectric energy source of national significance and a national treasure upon which millions of livelihoods depend.
The alternative road further provides additional socioeconomic benefits as more people will be connected to the tarmac, which will cost approximately one-third of the cost of the proposed road that threatens to cut through the Aberdare ecosystem.
Petitioners said they are not against the road project but are for sustainable road infrastructure development that promotes economic growth while minimising environmental impact, as outlined in the constitution and development blueprint, Vision 2030.
Aberdare park, a potential Unesco World Heritage Site, is home to many rare and critically endangered wildlife species, including the mountain bongo antelope.
Globally, fewer than 100 individuals remain in the wild, with the largest population in Aberdare.
The proposed road would threaten not only these rare species, but also the very lifeline of millions.
The Aberdare is a vital water tower, supplying 80 per cent of the water used by farmers, communities and, in Nairobi, through Ndakaini and Sasumua dams.
Disrupting critical wildlife corridors, destroying the closed canopy forest and increasing road-kill risk caused by vehicle-wildlife collisions along the 25-kilometre stretch within the protected area will jeopardise the region's biodiversity and endanger lives.
It is crucial, therefore, for all parties involved to consider all viable options within the legal framework.
Public records show that in 2009, KeNHA proposed upgrading the Ihithe-Ndunyu Njeru Murram road, the access road to park, which operates between 6am and 6pm in accordance with the law.
The National Environment Management Authority denied KeNHA a licence for the upgrade due to concerns about its potential environmental impact.
However, earlier this year, Nema abandoned its long-standing position and issued a licence for KeNHA to build a bitumen highway that will cross the park, threatening to divide one of the few remaining connected ecosystems into two.
In response, a coalition of conservation organisations and lawyer Suyianka filed an appeal in the High Court against KeNHA's plan to upgrade the 52-kilometre road to a bitumen highway in March this year.
CAK has also filed another case at the National Environment Tribunal challenging the road project, citing severe environmental impacts on the fragile ecosystem.
The conditions outlined in an environmental impact assessment licence issued by Nema on January 5.
The licence shows 185 acres (75 ha) of bamboo, 35 acres (14ha) of montane forest, and 35 acres (14ha) of moorland.
Some 255 acres will be affected by the road section passing through the Aberdare Forest Reserve and National Park.
The road project in Nyeri and Nyandarua counties, according to the environmental and social impact assessment study report, 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 (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 include Njengu-Treetops Gate-Amboni, Ihithe-Kiamutiga-Mukara, Ark Gate Access, Munyaka-Koinange-Heni-Mwendandu, and Njoma-Weru road sections, totalling 46km.
The EIA licence says the width of the road will be reduced to 25 metres in sections crossing Aberdare Forest Reserve and National Park.