The unending fight for forests, 16 years after Katiba

On the morning of August 27, 2010, Kenya promulgated a Constitution that environmentalists hailed as the most progressive in Africa.

For environmentalists, lawyers, and communities, legal fight for environmental protection is fundamentally different from most African countries, thanks to the Constitution of Kenya, 2010, which has rightly earned the moniker the "Green Constitution".

Firstly, Article 42 nestled within the Bill of Rights guarantees every person the right to a clean and healthy environment.

Further, Article 69 mandates the state to achieve and maintain tree cover of at least ten per cent of the land area.

Further, Article 70 opened doors for citizens to sue when the rights touching on the environment are violated or threatened.

This has been the legal backbone of the numerous court cases filed by Kenyans and environmental organisations suing the government for violation of their rights by destruction of the environment.

The law also includes the right to have the environment protected for the benefit of the present and future generations, effectively making environmental violations human rights violations.

However, 16 years later as Kenya marks the anniversary of the constitution, the provisions on environmental protections have been tested in various courtrooms across the country and citizens, organisations and the state remain locked in escalating legal battles over trees.

More than a decade later after the promulgation, wetlands, forests, parks and other green spaces have become a battleground between conservation and development.

From Nairobi National Park, Karura Forest, Kaptagat to Aberdares and Imenti forests, the fight persits as the government pushes to clears forests and parks to pave the way for roads, infrastructure and other development projects, and on the other hand, environmentalists and communities insist that they are protected spaces.

Numbers reveal that the country is still falling short of its constitutional requirement.

Under the old constitutional order, environmental challengers did not have a legal right to sue the state.

For example, when the late Nobel laureate Wangari Maathai sued to stop construction of a building in Nairobi's Uhuru Park in 1989, the High Court ruled that she had no locus standi- meaning she had no right or capacity to bring a lawsuit, challenge a decision, or appear before a court. It was only the Attorney General who could sue on behalf of the public.

However, the Constitution of Kenya 2010 demolished that wall, allowing anyone to file a case in the public interest.

Presently, there are about 15 active cases in courts against government projects or land allocation in protected areas.

Some include three cases concerning Nairobi National Park, three involving Karura Forest, five on Oloolua Forest, and two on destruction of Imenti Forest.

“We have not fully realised its promise. Sixteen years later, citizens and civil society organisations are still going to court to stop projects that should have been subjected to proper environmental scrutiny in the first place. The Constitution has given Kenyans powerful tools, but the challenge has been implementation,” says Job Mwangi, advocacy manager at the Green Belt Movement.

“The Constitution has changed the law fundamentally, but what has not changed enough is the culture of governance around the environment. We still have situations where development is announced first, and environmental considerations are treated as an obstacle to be dealt with later,” he adds.

Environmental advocates and activists indicate that most government projects are not assessed as a single project, instead, the development is fragmented into smaller components, without conducting proper public participation or environmental impact assessment on the projects.

 In Nairobi National Park, plans to relocate and upgrade the Nairobi Animal Orphanage have become the latest flashpoint.

The Kenya Wildlife Service says the relocation is intended to improve animal welfare by moving the orphanage from its current five-acre site to a larger and modern facility near Bomas of Kenya.

The proposed facility is expected to include veterinary and research facilities, quarantine areas, training spaces and improved visitor infrastructure.

But conservationists have questioned the scale and location of the project as different sections of the Environmental Impact Assessment report have cited varying land sizes, ranging from 18 acres to 64 acres and up to 99 acres, raising questions over the actual footprint of the development.

At the centre of the dispute is a proposed parking facility within the park with a capacity of up to 1,300 vehicles.

Conservationists argue that such a facility is far beyond what would be required for an animal orphanage and could facilitate commercial development within the protected area.

But the loss of the park did not start with the current project. Nairobi National Park has already lost sections of its land to major infrastructure projects, including roads and railway development.

“What is happening here is not an isolated case. It is part of a troubling pattern that we see across our country,” the Green Belt Movement emphasizes.

In Nairobi National Park, the pattern began with the Standard Gauge Railway, a 2015 flagship infrastructure project promising faster movement of goods and people.

However, the railway line crossed environmentally sensitive landscapes, including Nairobi National Park and the Tsavo ecosystem.

In 2016, the National Assembly found that Nema, KWS and Kenya Railways had deliberately concealed the full environmental impact of the SGR on Nairobi National Park, by fragmenting the multibillion project into smaller developments.

A decade later, a similar battle between the government and environmentalists resurfaced in the construction of Talanta Stadium, the Bomas International Convention Centre, a new road excising about 15 acres of Ngong Road Forest resurfaced.

The projects were separately presented from the main development, despite being one project.

However, the Judiciary has intervened in various matters to stop the strategy by the government to hive off forests and parks for piecemeal projects.

In August 2025, for instance, the Environment and Land Court delivered a landmark ruling when the government sought to excise 51.64 acres of Karura Forest to expand Kiambu Road.

Instead, the court allowed only 0.12 hectares, noting that the proposed allocation violated constitutional safeguards.

There was also controversy over the construction of a tarmac road inside the forest, with officials saying it was necessary to improve access to guards’ houses.

Conservationists questioned why a tarmac road was necessary inside an urban indigenous forest and whether alternative solutions had been considered.

“The Constitution does not say that Kenya should choose between development and conservation. It says development must be sustainable,” says Job Mwangi, the Green Belt Movement

“A road, railway, hospital, energy project or other infrastructure can serve a legitimate public purpose. But public benefit does not give government a licence to ignore environmental law.

The real question should be whether the project can be designed and implemented in a way that achieves the public purpose while avoiding or minimising environmental harm,” he argues.

Instead, he argues that the government should explore alternatives such as a less damaging technology that will not have destructive consequences on the environment.

“Once an ecosystem is destroyed, no amount of economic justification can simply restore what has been lost. The Constitution itself requires sustainable exploitation and utilisation of natural resources, public participation, environmental impact assessment and the elimination of activities likely to endanger the environment,” Mwangi adds.

Another proposal to establish a private hotel in the forest was also stopped through court action.

More recently, plans for a large tree nursery and temporary accommodation for National Youth Service personnel in Karura sparked another dispute.

The Government defended the project as part of efforts to support the national tree-growing agenda but conservationists challenged the decision, questioning the cutting of mature indigenous trees in a protected forest to plant new trees.

Courts have also intervened to stop the destruction of Ngong Road Forest, blocking luxury hotel and commercial developments that had been facilitated through administrative permits and early entry licences, without public participation, environmental impact assessments or accountability.

“These are not isolated disputes. Taken together, they point to a worrying pattern. What we are witnessing is a gradual normalisation of the idea that protected ecosystems can be sacrificed whenever there is a competing development interest,” Mwangi adds.

“A forest is not just the trees that can be seen on the ground. Nairobi's forests perform functions that support the city itself. They regulate water, absorb carbon, support biodiversity, reduce heat and provide spaces for recreation and mental wellbeing. same applies to our water towers and national parks,” he argues.

The law requires public participation in environmental management, environmental impact assessment, auditing and monitoring, and the elimination of activities likely to endanger the environment.

"An EIA should not be used to justify a project after the decision to proceed has effectively already been made. It should inform the decision itself. Kenyan courts have repeatedly emphasised that public participation must be real and meaningful and not merely cosmetic," said Mwangi.

A similar dispute on destruction of forests has emerged in Imenti Forest in Meru County, where plans involving a State lodge, airstrip and golf course have triggered legal action.

A petition before the Environment and Land Court  seeks to prevent the excision or allocation of forest land for the proposed developments.

The petitioner argues that the projects could compromise the ecological integrity of the forest and cause irreversible environmental damage.

Although the amendments to the Forest Conservation and Management Act were largely considered progressive provisions such as the mandatory 100-metre buffer zones around forests, a new independent Directorate of Forest Regulation, increased penalties for forest offences, and dedicated attention to neglected dryland forests, conservationists protested Section 15, which amends Section 56(2) of the principal Act.

The new provision added two new permitted uses within public forests including easements for public roads and other public installations, and wayleaves for public utilities.

This means that roads, power lines, pipelines and other infrastructure could be routed through public forests under a process administered by the Kenya Forest Service, bypassing the National Land Commission and the full constitutional safeguards of the Land Act 2012.

Conservationists fear that without a proper definition of 'public utility',  the provision could potentially be used to justify projects that have little to do with genuine public need as required by Article 69, which permits the State to utilise the environment and natural resources for the benefit of Kenyans.

Further north, the Aberdare ecosystem is facing pressure from a proposed road project that conservationists say could affect hundreds of acres of forests.

The forest is one of Kenya's critical water towers and supports biodiversity, water systems and livelihoods far beyond the boundaries of the ecosystem.

Environmental activists warn that a major road cutting through the forest could fragment habitats, disrupt wildlife movement and lead to increased human-wildlife conflict. Instead, they push for alternative routes

To further demonstrate the extent of damage subjected to forests and other green spaces, the Environment and Land Court in October 2023, declared President William Ruto's directive lifting the countrywide ban on logging illegal and unconstitutional, agreeing with the Law Society of Kenya that the order was made without due process or public participation.

Critics, including the Green Belt Movement, argue the amendment is unconstitutional, arguing that the law classifies all government forests as public land, and vests management of public land in the National Land Commission and not KFS.

"Civil society should not have to run from one court to another every time a protected ecosystem is threatened. That is expensive, slow and places enormous pressure on communities and organisations that are already operating with limited resources."

"The ideal system is one where NEMA, KFS, KWS, county governments and other relevant institutions make lawful, science-based and transparent decisions from the beginning," Mwangi argues.