The Environment and Land Court at Nairobi has struck out a logging ban petition, ending Kituo Cha Sheria’s challenge.
Justice Christine Ochieng found that ELC Petition No E024 of 2023, filed by the Legal Advice Centre (trading as Kituo Cha Sheria) against the Cabinet Secretary, Ministry of Environment and Natural Resources and five others, duplicated an earlier case already determined by Justice Angote.
The feud concerned the presidential announcement of July 2, 2023, lifting a ban imposed in 2018 after a task force reviewed illegal logging, forest degradation and encroachment.
The petitioner contended the decision “will decimate Kenya's forests and cause citizens to suffer from living in an environment that is not safe and healthy.”
“Further, that it will result to less tree cover as commercial and illegal logging driven by profit takes shape. It accuses the first, second and fifth respondents [the CS, Nema DG and chief conservator of forests of the Kenya Forest Services, respectively] of failing to take steps to protect forests thereby increasing the risk of global warming.”
Kituo Cha Sheria pleaded that the respondents had a duty to ensure a tree cover of at least 10 per cent is maintained and their inaction was “an act of negligence”.
The petition sought a declaration by the court that the presidential announcement lifting the logging ban was without any legal basis and therefore unconstitutional and would result in an increase in climate change risk.
The petitioner also sought action against the office bearers.
“A declaration that the first, second and fifth respondents by their nonfeasance in failing to protect the environment as demanded by the constitution and statute have no legal or moral legitimacy to hold their respective offices.”
The second and third respondents, the director general of the National Environment Management Authority and the authority itself, withdrew a preliminary objection and relied on an affidavit by Dr Mamo B Mamo.
They argued the petition was an abuse of court process owing to an existing court decision, where the matter was also the subject of the said case.
Other respondents filed a preliminary objection.
The petitioner, the first and the fourth to sixth respondents did not file submissions despite directions.
Justice Ochieng agreed with the respondents.
“I find that the instant petition is res judicata [already heard and settled] ELC Petition No. E001 of 2023-Law Society of Kenya v Attorney General and three others; Katiba Institute and six others (Interested Parties) and will proceed to strike it out and not deal with the other issues raised.”
She also ordered each party to bear their own costs.
