A WIN FOR KIMANA WILDLIFE CORRIDOR

Introduction

For almost 5 years, the Kimana wildlife corridor has been at the heart of a protracted legal suit. However, on 30^th January 2026 a five-judge bench at the Supreme Court of Kenya in the case of Kiliavo Fresh Limited v National Environmental Tribunal & 4 others [2026] KESC 18 (KLR) delivered its final judgment on the matter. 

Background

Kiliavo Fresh Limited (Appellant in the suit) had been issued with an EIA license by NEMA to practise integrated mixed-use farming comprising conservation agriculture, livestock production, a wildlife ranger’s base and necessary farm infrastructure in Kimana, Kajiado County.

However, on the diverse dates of 9^th and 18^th September 2020, NEMA issued Kiliavo with show cause notices and directed them to stop all developments on L.R No. LOITOKTOK/KIMANA-TIKONDO/4209, 4210 and 4211. The reason for the said orders by NEMA was that:-

1. The project was situated within a designated and zoned wildlife corridor and thereby contravened the provisions of the Amboseli Ecosystem Management Plan (Ref. KWS/AMB/6006), and 
2. Key stakeholders had not been consulted during the Environmental Impact Assessment (EIA) approval process.

This led to Kiliavo filing an Appeal at the National Environment Tribunal (NET) on 21^st September 2020 challenging the said decision by NEMA. On 26^th April 2021, the Appeal was dismissed by the Tribunal for non-attendance to which the Kiliavo filed a Judicial Review Application at the Environment and Land Court on infringement of their right to fair administrative action and fair hearing under Article 47 and 50 of the Constitution, respectively. As a result of the dismissed Appeal, NEMA revoked Kiliavo’s license on 27^th April 2021.

At the Environment and Land Court, the Judicial Review Application was struck out as the Court lacked jurisdiction to hear and determine the matter. The Court relied on Section 130 of the Environmental Management and Coordination Act Cap.387 which provides for an Appeal process as opposed to a Judicial Review process for persons aggrieved by decisions of NET. Aggrieved by the decision, Kiliavo filed an Appeal at the Court of Appeal. Unfortunately, the Court of Appeal upheld the decision of the Environment and Land Court that Judicial Review was not the way to go. 

Still aggrieved by the decision of the Court of Appeal, Kiliavo invoked the Jurisdiction of the Supreme Court under Article 163(4)(a) of the Constitution of Kenya which provides that:-

“Appeals shall lie from the Court of Appeal to the Supreme Court-

1. as of right in any case involving the interpretation and application of this Constitution….”

Thus, the current Appeal and judgment by the Supreme Court.

Analysis

The Supreme Court of Kenya in its judgement addressed whether Kiliavo Fresh Limited had properly invoked the jurisdiction of the Court and whether the Court of Appeal had erred in its decision.

The Supreme Court, while citing a number of its previous decisions, reiterated under paragraph 40 of its decision that its jurisdiction under Article 163(4)(a) of the Constitution is limited to matters of constitutional interpretation or application. Additionally, to qualify under the appellate jurisdiction of the said court, a party must demonstrate that:-

1. The issues were identified as involving interpretation or application of the Constitution and had been argued in the court of first instance and canvassed through the hierarchy of courts, at the Court of Appeal and finally to the Supreme Court; and
2. The court in its determination took a constitutional trajectory of interpretation and application. 

Additionally, the court emphasized, under paragraph 44 of its decision, that merely mentioning a constitutional provision in a Court of Appeal decision does not automatically grant the Supreme Court Appellate jurisdiction on Constitutional interpretation and Application.

Court Decision

Based on the above analysis the Court held that:-

1. Kiliavo Fresh Limited had not properly invoked the jurisdiction of the Court on matters of Constitutional interpretation and Application.
2. The matter was dismissed as the Court lacked jurisdiction to hear and determine the matter.

Impact of the Decision

The matter having been settled by the highest Court in the land the immediate consequence is that the decision of the Court of Appeal stands as with regard to the procedure in which a party aggrieved by the decision of NET has to follow. In this case, the correct process is filing an Appeal at the Environment and Land Court as provided for under section 130 of the Environmental Management and Co-ordination Act Cap. 387. In addition, Kiliavo Fresh Limited EIA license remains revoked and all operations on L.R No. LOITOKTOK/KIMANA-TIKONDO/4209, 4210 and 4211 remain suspended. 

While the decision focused mainly on the processes taken to institute the suit, this decision provides a vital lifeline for the fragile Amboseli eco-system thus protecting a critical wildlife migration path and corridor. In an era where courts are continuously called upon to balance economic development with environmental conservation, this decision reaffirms that prescribed legal processes must be followed by all actors in order to ensure that ecological protection remains a non-negotiable priority. 

At OGO-LAW, THE GREEN BRIEF ADVOCATES, we continue to be at the forefront of advocating for rigorous enforcement of environmental laws guided by our vision, “Reclaiming Africa’s wealth through the establishment of its natural resources as economic assets that benefit Africans,” and mission, “Using the power of law and policy to protect nature and uplift African communities,”