The Environment and Land Court has stopped the ongoing renovation of Uhuru Park, dealing a huge blow to one of the legacy projects of the Nairobi Metropolitan Services (NMS), whose two-year term expires in March 2022.
In the temporary order issued by Justice Edward Wabwoto, the NMS and its contractors or agents have been stopped form cutting down the trees or carrying out any works at the park.
While ruling on an application filed by the Communist Party of Kenya challenging the project, the judge found that the renovation was commissioned without authority and approval of environment regulator — the National Environment Management Authority (Nema).
“Nema, while supporting the application, admitted that no environmental effects and social assessment reports have been submitted to it for consideration in respect of the project. As such, no environmental impact and social assessment licence had been issued,” said the judge.
He stated that the Environmental Management and Co-ordination Act requires an assessment of the impact and assessment of any particular project be done unless exempted.
“The evidence before this court shows that the respondents did not only breach the provisions of Section 28 and 59 of the Environmental Management and Co-ordination Act, but also Article 69(1) of the Constitution, which provides that the state shall ensure sustainable exploitation, utilisation, management and conservation of the environment,” said the judge.
He found that NMS and its director-general did not place any evidence in court showing that they carried out a study on the likely impact of the project to the environment.
He said environmental assessment is mandatory, adding that the petitioners have a strong case against NMS.
The court order will remain in force pending the determination of the case whose hearing is scheduled to start on February 1, 2022.
The petitioners, through lawyer Nelson Havi, told the court that NMS has already destroyed the historic pavilion at the park and has also initiated a process of replacing the green grass lawn with concrete cement blocks.
In its view, the concrete blocks will greatly degrade the botanical and environmental qualities of the park to the detriment of Nairobi residents who have been the greatest beneficiaries of the same. NMS planned to have completed the renovation of the park in February 2022.
The petitioners are also pushing for disclosure of the financial budget for the project, who won the tender to do the renovations and whether due process of procuring their services was followed.
They also want disclosure on whether the project is public owned, whether it is a public-private partnership project and whether the park would be freely accessible to the public after the renovations are completed.
They told the court that the project does not also adhere to the principles of public finance that require the county executive committee member for finance to involve the public in all finance matters.
“About September 29, 2021, the park was closed from the public by the NMS, which also failed in its constitutional mandate to involve the public in the making of such a decision. Not only did the NMS not conduct any public participation before closing off the park, but it failed to issue notice to the public and the traders at the park concerning any impending closure of the park,” says the petitioner’s representative Benedict Wachira.
In the court papers, he says since the closure of the park, there has been limited leisure spaces in the capital city, and the public has been forced to make use of spaces beside the highways and inside roundabouts.
He said the closure of the park has exposed traders to harmful health and environmental effects and has further exposed them to the risks of accidents along the highways.
The park is the largest green open space and recreational grounds in Nairobi County, and was opened as a park to the general public in 1969 by President Jomo Kenyatta.
It is monumental and historic to Kenya as it symbolises popular struggles against dictatorship, struggles for democracy and struggle for the conservation of the environment — among other historic events — including being the venue where the Constitution of Kenya was promulgated in 2010.
The park is used by Kenyans of all walks of life as a ground for social, political and religious gatherings, and it is also a popular resting and recreational place for many Kenyans.
