Justice Edward Wabwoto dealt Lieutenant General Mohammed Badi-led NMS a blow after refusing to lift the order, saying allowing the process to go on would defeat the case filed by the Communist Party of Kenya.
The CPK challenged the project, arguing that it was commissioned without the authority and approval of the National Environment Management Authority.
The High Court on Thursday declined to lift an order stopping the renovations at Uhuru Park, a legacy project of Nairobi Metropolitan Services (NMS) whose term expires in March 2022.
Justice Edward Wabwoto dealt Lieutenant General Mohammed Badi-led NMS a blow after refusing to lift the order, saying allowing the process to go on would defeat the case filed by the Communist Party of Kenya (CPK).
The CPK challenged the project, arguing that it was commissioned without the authority and approval of the National Environment Management Authority (Nema).
While issuing the order on December 7, the judge found that NMS and its director-general did not place any evidence showing that they carried out a study on the likely impact on the environment.
“This court was satisfied there was a prima facie case warranting the specific conservatory orders that were issued. I reiterate that it would, in the circumstances of this case, be improper for this court to purport to overturn the said orders at this stage.
The judge also dismissed claims by Lt Gen Badi that he was not served with the petition and that the order was issued without hearing his side.
“In view of the foregoing, I, therefore, find that service was properly effected and all the respondents including the Second Respondent (Lt Gen Badi). The Second Respondent cannot choose at this stage to argue that he was never personally served,” said the judge.
Justice Wabwoto said the fact that NMS and its director-general opted not to attend court, after being served with the petition, does not give them the right to complain.
“Furthermore, the conservatory orders issued were issued based on facts placed before the court, which facts have not been proven to be false as the applicant and the First Respondent (NMS) depose clearly that the Environmental Impact Assessment licence has not been issued to date,” he said.
CPK chairman Booker Ngesa Omole obtained orders on December 7 against NMS carrying out any repairs at the park, cutting down trees and any works on Uhuru Park, pending the determination of the petition.
The party is also pushing for disclosure of the financial budget for the project, who won the tender to do the renovations and whether the due process of procuring their services was followed.
It also wants disclosure on whether the project is publicly 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.
CPK told the court that the project does not also adhere to principles of public finance that require the County Executive Committee member for finance to involve the public in all finance matters.
But Mr Badi later complained that the orders were issued without giving him an opportunity to be heard and the court was left with a one-sided ‘highly sensationalised’ version and unsupported allegations when it proceeded to give the ruling.
He said the order was issued on the aspect that there was no public participation and no Environmental Impact Assessment licence yet there was extensive public participation, which had been undertaken from 2018.
Lt Genera; Badi further said an Environmental Impact Assessment (EIA) report was in existence and that if the ruling is not set aside, the decision will have far-reaching consequences on the project, causing great public injustice.
The Director Environment, Water and Sanitation at NMS Ms Maureen Njeri stated that public participation was an ongoing process and as such there was extensive public participation which had been conducted in respect to the rehabilitation of the Park
She also supported claims that an EIA report had been submitted to the National Environment Management Authority (NEMA), and they were waiting for an EIA license.
