1. The application before court for determination is the Notice of Motion dated 6th February, 2026 expressed to be brought pursuant to the provisions of Article 10, 22, 42, 69 and 70 of the Constitution of Kenya 2010, sections 36, 47, 50, 51, 52, 63 and 68 of the Forest Conservation and Management Act 2016, Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act, Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) and Order 51 Rule 1 of the Civil Procedure Rules.
2. The application seeks orders that;
(a) Pending hearing and determination of the Petition, the Respondent be restrained from authorizing or undertaking any forest harvesting activities within Kibiri Forest in the absence of;
(i) a valid Forest Management Plan approved under Section 47 of the FCMA;
(ii) a current ecosystem or forest development plan; and
(iii) lawful/valid harvesting license issued pursuant therefore
(b) The Respondent be directed to place before this court;
(i) the current Forest Management Plan, (if any) for Kibiri Forest
(ii) the legal instrument authorizing harvest following the expiry of the Kakamega Forest Ecosystem Development Plant (2012 – 2022)
(iii) all harvesting licenses issued to saw millers or commercial operators
(iv) any existing CFA agreement or benefit-sharing arrangement relied upon.
(c) The Respondent’s Forest Officers responsible for Kibiri Forest do ensure compliance with the conservatory orders issued by the court.
(d) Costs be in the cause.
3. The grounds upon which the application was brought are that:
a. Kibiri Forest is a public forest forming part of the Kakamega Forest Ecosystem and is held in trust for the people of Kenya under Article 69 of the Constitution and the Forest Conservation and Management Act, 2016.
b. The Respondent has authorized and/or is undertaking ongoing harvesting, cutting, extraction and removal of tree within Kibiri Forest through saw millers and commercial operators.
c. The Kakamega Forest Ecosystem Development Plant (2012 – 2022), which previously guided utilization of the forest ecosystem expired in the year 2022 and no successor ecosystem or forest development plan has been approved or disclosed.
d. There is no valid Forest Management Plan approved under Section 47 of the Forest Conservation and Management Act, 2016, currently governing harvesting or utilization activities within Kibiri Forest.
e. Any Community Forest Association (CFA) agreement relating to Kibiri Forest has lapsed, and there exists no valid benefit-sharing, co-management, or participation framework under Section 36 of the Forest Conservation and Management Act capable of lawfully supporting harvesting activities.
f. Under the Forest Conservation and Management Act, 2016, forest harvesting may only lawfully occur where:
a) a valid Forest Management Plan is in force;
b) harvesting licenses are issued pursuant to such Plan; and
c) principles of sustainability, public participation, and intergenerational equity are complied with.
g. The impugned harvesting activities are being undertaken in the absence of the mandatory statutory instruments and approvals, rendering them unlawful, arbitrary, and ultra vires the Forest Conservation and Management Act, 2016.
h. The Respondent’s actions violate Articles 10, 42 and 69 of the Constitution by:
a) excluding public participation and transparency;
b) undermining sustainable development; and
c) failing to protect and conserve forest resources for present and future generations.
i. The continued harvesting poses an imminent and irreversible threat to forest cover, biodiversity, water catchment functions, and ecosystem services within Kibiri Forest.
j. Unless this Honourable Court intervenes urgently, the substratum of the intended Petition will be destroyed, rendering the proceedings nugatory, as trees once felled cannot be restored.
k. Under Article 70 of the Constitution, the Applicant is entitled to seek preventive and conservatory relief to avert environmental harm without demonstrating personal loss or injury.
l. The balance of convenience and the public interest overwhelmingly favours the grant of conservatory orders to preserve Kibiri Forest pending hearing and determination of the main suit.
m. It is just, fair, and in the interest of constitutional environmental governance that the orders sought be granted.
The application was supported by the contents of the Supporting Affidavit sworn by the Petitioner on 6th February, 2026, and the annexures thereto.
4. The application was opposed vide the contents of the Replying Affidavit sworn by Fredrick S. Otsieno, the County Forest Conservator, Kenya Forest Services, Vihiga County, on 17th February, 2026.
5. The Respondent’s case is that Kibiri Forest has been designated by the Kenya Forest Conservation and Management Act under Kenya Gazette Notice No.LN 14/1933 as a state forest, being part of Kakamega Forest. That the forest has both indigenous and exotic tree species. That what is currently being undertaken is the harvest of exotic trees, namely, Cypress Lusitanica, Eucalyptus Saligna, and Bischofia Jaronica, and not indigenous trees.
6. That the Respondent has a duly approved and functioning Forest Plant Management Plan known as Kibiri Forest Plantation Management Plan, which allows the Respondent to harvest trees in the forest, and that all entities currently harvesting trees in the forest have valid licenses to harvest trees in the said forest. That section 47 of the Forest Conservation and Management Act was complied with.
7. That the members of the public have been periodically informed of the existence of the Forest Plantation Management plant through various modes, including public barazas, local administration offices, and public participation exercises. That it carried out public participation among the people living adjacent to Kibiri Forest to inform the Community of its intention to harvest its mature plantations as per the felling plan.
8. That the Respondent has a valid ecosystem development plan, which shall expire in the year 2032. That the Community Forest Association in Kibiri Forest is currently under restructuring, and the participatory Forest Management Plan is under review.
9. That the Kibiri Community Forest Association has, pending the restructuring, given the Respondent their consent to proceed with the harvest since the Respondent is under an obligation to balance between timber production and forest ecosystem health, biodiversity, and long-term regeneration.
10. That the Respondent acted in accordance with the Constitution of Kenya 2010, the Forest Conservation Management Act, 2016, its standard Operating Procedures, the Kibiri Forest Plan, the Public Procurement and Asset Disposal Act, 2015, and the Regulations 2020, the Respondent's Economic Restoration Strategy, as well as the Environmental Management and Coordination Act.
11. That the tree harvesting is targeted at balancing the health of the forest, timber production by replanting exotic trees to replace the harvested ones to promote biodiversity and promote timber, fuel, and wood products, and improve forest health and quality of trees therein, as well as improve the ecosystem in general.
12. The application was heard orally on 23rd February, 2026.
13. I have considered the application, Supporting Affidavit, and annexures, and the Further Affidavit, all filed by the Petitioner/Applicant and the Replying Affidavit by the Respondent and annexures thereto.
It is not in dispute that Kibiri Forest, the subject matter of the petition, is a public forest. There is also no dispute that tree harvesting is currently going on in the said forest, save for the period the court halted it as from 12th March, 2026.
The Applicant’s contention is that the said tree harvesting is unlawful as it contravenes the law and hence violates the rights of the citizen as guaranteed under articles 42, 69, and 70 of the Constitution of Kenya, 2010, and in breach of the provisions of sections 36, 47, 50, 51, 52, and 68 of the Forest Conservation and Management Act, 2016.
14. Section 36 deals with the exchange of forest area with private land, section 47 Management plans, section 50 assignment of forest user rights, section 51 termination of variation of Management agreement, section 52 customary rights, and section 68 compensation for loss or damage.
15. The Applicant specifically complains that the tree harvesting is being done without a valid Management Plan approved under Section 47 of the Forest Conservation and Management Act, 2016, and other mandatory approvals and instruments. Section 47 of the Forest Conservation and Management Act, 2016, provides for Management Plans for public forests. Section 47(1) provides that;
“Every public forest, nature reserve, and provisional forest shall be managed in accordance with a management plan that complies with the requirements prescribed by Regulations made by the Cabinet Secretary”.
16. The Respondent’s reply was that it has a valid management plan pursuant to which the harvesting is being done. To the Replying Affidavit, the Respondent attached a document titled Kibiri Forest Plantation Management Plan 2015-2025. The Respondent also annexed to the Replying Affidavit, letters of notification of award of tender and invoices to and payment receipts by the Saw Millers.
17. Regarding participation of the Community in the exercise, the Respondent exhibited a document dated 9th July 2025, ref. No. SCC/52663 from the Office of the Attorney General, signed by the Assistant Registrar of Societies. The document contained the list of the officers of Kibiri Community Forest Association. In addition, the Respondent exhibited a letter signed by the said officers of Kibiri Community Forest Association and addressed to ‘Whom it may concern’, indicating that the Community was not opposed to the tree harvesting.
18. The Respondent further averred that it followed due process in the tendering process leading to the tree harvesting in accordance with the Forest (Harvesting) Rules 2009. That there was a public notice call for public views on disposal (harvesting of forest) before the Saw Millers were pre-qualified. That mature plantations were advertised for tendering. That the prequalified Saw Millers applied, and after the tendering process, the successful licensees were allocated plantation materials through the tendering process.
19. In considering an application of this nature, the court is guided by the provisions of articles 42, 69, and 70 of the Constitution of Kenya 2010 and particularly the principles of sustainability, public participation, and intergenerational equity. The court ought to consider the importance of trees not only as a commercial item but also as an important component in the ecosystem, as held in the case of Joseph Leboo & 2 others vs Director Kenya forest Services & another [2013]eKLR. In the present case, it is not denied that only exotic trees are being harvested. The letter by the officers of the relevant Community association indicates that the harvesting is aimed at balancing timber production and regulating forest ecosystem health and biodiversity.
20. Having read the material placed before the court by both parties, I find that the Respondent has demonstrated prima facie that it complied with the law and procedures in the process of harvesting the trees and that it is not depleting the forest, as it is only harvesting the exotic trees and leaving the indigenous trees. Input of the community has also been demonstrated through the letter by the registered officers of the community association.
21. I find that the application does not satisfy the grounds for the grant of the orders sought.
The application is dismissed. No orders as to costs.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 24th day of March 2026.
E. ASATI,
JUDGE.
In the presence of:
Maureen- Court Assistant.
No appearance for the Petitioner/ Applicant
Majanga for the Respondent.
| ELC PET. E002/2026 RULING 2 |