Court dismisses bid to stop Sh4.4bn Mau Mau road project

The Environment and Land Court today dismissed a high-profile petition challenging the construction of the multi-billion shilling Mau Mau road through the Aberdare ecosystem.

Delivering the final judgment at the Milimani Law Courts, the three-judge bench found that the National Environment Management Authority had adequately addressed all ecological concerns raised nearly two decades ago before granting conditional approval for the 52-kilometre highway.

“We are unable to come to a conclusion that the state has abdicated its constitutional obligation under article 69 of the Constitution,” the court ruled.

The judges noted that in 2009, Nema had initially rejected the project, citing significant environmental concerns, but that the Kenya National Highways Authority subsequently spent 14 years conducting a new environmental impact assessment based on exhaustive terms of reference.

“We have evaluated the mitigation measures in both the EAC and study report and in the EIA licence and we have made findings to the effect that the measures are adequate and will protect and safeguard the environment if fully implemented,” the judgment stated.

The court added that it was guided by “the principle of sustainable development, development that meets the needs of the present generation without compromising the ability of the future generations to meet their own needs.”

On the petitioners’ contention that a strategic environmental assessment ought to have been conducted before the licence was issued, the judges found no statutory basis for that requirement in 2024.

“The first respondent was not obligated to procure a strategic environmental assessment study report for the purposes of the EIA licence,” the court held, noting that the regulatory framework requiring such assessments for policies, plans and programmes was not applicable to an individual road project at the time.

The court further observed that the Cabinet Secretaries responsible for the overarching Vision 2030 policy, which informed the project, had not been made parties to the suit and could not be condemned without being heard.

The dispute has its roots in a protracted environmental case spanning more than 15 years. The Sh4.4 billion road, part of the Government’s Vision 2030 development agenda, was designed to connect Nyeri and Nyandarua counties but would traverse approximately 25 kilometres of closed-canopy forest within the Aberdare range, a critical water tower supplying 90 per cent of Nairobi’s water through the Ndakaini and Sasumua dams and generating 55 per cent of the country’s hydroelectric power.

When Nema first rejected the application in 2009, it cited five key reasons: the failure to provide alternative routes, the potential ecological impacts of routing the road through closed-canopy forest, inadequate mitigation measures, and objections from the Kenya Wildlife Service, Kenya Forest Service, the African Wildlife Foundation and the Kenya Tourism Federation.

Years later, Nema granted a conditional licence following a fresh environmental impact assessment, prompting opposition from conservation groups that argued the road would sever wildlife migration corridors used by the critically endangered mountain bongo.

The coalition led by the East Africa Wildlife Society, the Kenya Forest Working Group, the Africa Centre for Peace and Human Rights and lawyer Lempaa Suyianka argued that “the proposed 52-kilometre road project violates several constitutional rights, including the right to a clean and healthy environment, biodiversity protection, and cultural heritage preservation”.

As part of their reliefs, they sought a permanent injunction against the construction, arguing that the Aberdares are “a critical water tower, biodiversity hotspot, hydroelectric energy source of national significance and a national treasure upon which millions of livelihoods depend”.

They also asked the court to compel the authorities to consider an alternative route bypassing the park entirely.

KeNHA opposed the petition, arguing that the court lacked jurisdiction because the petitioners should have exhausted remedies at the National Environment Tribunal, and maintained that the project was essential for economic connectivity and growth.

Ultimately, the bench found no merit in the petitioners’ case.

“We did not find any merit in this petition herein and accordingly we hereby dismiss the suit entirely,” the judges ruled, adding, “we make no order” as to costs.