Authored By: Morgan Okoth
University of Nairobi
i.0 Introduction
Two recent episodes have brought Kenya’s constitutional and governance framework into sharp focus, questioning whether the principle of intergenerational equity is binding or just a mere cosmetic on paper.
The National Environmental and Management Authority(NEMA) issued a license allowing Kenya Wildlife Service(KWS) to clear 76 Acres of land occupied by indigenous trees within Nairobi National Park, for construction of a modern parking lot for the Bomas International Conventional Center.[1] To facilitate this, the animal orphanage will have to be moved 1,5 kilometres away from its original location.[2] The same happened in Karura Forest, where trees covering 3 Acres of land were cleared. Part of the land was to create space for raising between 2 to 10 million seedlings to boost tree cover within the country, and the rest to provide space for housing the personnel from the National Youth Service(NYS), who will be required to provide labour.[3]
These scenarios raised this question: does clearing indigenous trees for raising seedlings and paving way for development, without exploring other alternatives result in sustainable development, the primary factor in achieving intergenerational equity?
Background and Meaning of Intergenerational Equity
Intergenerational equity traces its origin from investment and debt management.[4]It was first used by an economist called James Tobin in 1960.[5] In his idea, he opined that investment returns were supposed to be divided such that both the present and future generations were able to benefit from them.[6]
This concept has gained momentum within environmental matters. One of its pivotal elements is sustainable development, which is considered the only way through which intergenerational equity can be realized.
Sustainable development is defined as, the use of environment and environmental resources to meet the needs of the current generation without compromising with the ability of the future ones to use the same resources to meet their needs as well.[7]
From this explanation, intergenerational equity is therefore the idea
“All humans hold the natural and cultural environment in common both with other members of the present generation and with other generations, past and future and have a responsibility to conserve for past and future generations, the options and diversity of natural resources, access and rights to cultural and environmental resources, and the quality of the said resources.” [8]
iii. Legal Framework for the Guiding Principles in Environmental Uses
As a principle in Kenya, the Constitution is the supreme law of the land, therefore all laws must find their grounding in the Constitution.
Although not binding, the people of Kenya as evident in the preamble of the Constitution recognized the need to respect the environment as their heritage, and expressed their determination to sustain it for the future generations.[9]This wish is brought to life by the provisions of article article 10 which includes sustainable development as a national value and principle of governance.
Article 42 further protects the right to a clean and healthy environment, and explicitly says that it is for the benefit for both the present and future generations. This is the foundation upon which other laws regarding intergenerational equity are built.
Article 69 takes it a notch higher by mandating the state to ensure sustainable exploitation, use, management and conservation of the environment and natural resources, establish systems of environmental assessment, audit, and monitoring, and ensure at least 10% of the Kenyan land is covered by trees.
As a legislation, section 3(5) of the Environmental Management and Coordination Act provides for intergenerational equity, precautionary, and preventive principles among others.
To ensure compliance, article 70 accords everyone the opportunity to apply for redress from the court in cases of violation of the right in discussion. As a matter of access to justice, the person seeking redress does not have to prove loss or be injured.
The robust Kenyan legal framework is supplemented with the principles of international laws as well.[10] On the frontline is the Rio Declaration on Environment and Development, 1992, which provides for the six principles that have been domesticated into the Kenyan laws. It provides for many principles but this article only focuses on the two of them.
The declaration affirms the position that human beings are at the core of all forms of development and are entitled to a clean and healthy environment.[11] Additionally, it mandates states to obey the principle of intergenerational equity[12] and strict adherence to the procedures requiring bodies to conduct Environmental Impact Assessment and avail reports before being issued with licenses i.e. the precautionary principle.[13]
The Guiding Principles in Environmental Matters
Through a robust legal framework and well-established judicial decisions, there are various principles that the state should always follow when dealing with policies that have effects on the environment.
a) The Principle of Intergenerational and Intragenerational Equity
Intergenerational Equity as has already been mentioned is pegged on sustainable development. Sustainable development implies that the current generation is supposed to use the current resources in a manner that does not compromise the ability of future generations to meet their needs.[14]
However, there have been arguments that intergenerational equity as a principle is only concerned with the future generations and is perceived as a threat.[15] That it is not concerned with conserving nature itself as human heritage.[16]
Further arguments also suggest that the cost of the principle might be paid painfully at the cost of the current generation.[17] This is because some people might die in poverty just because they are too concerned about the future generations.[18]
Against this backdrop, the paper argues that if the environment and land are used in a degrading manner, it might not even manage to sustain the current generation. Ensuring conservancy will also ensure that the natural state of earth as human heritage is conserved whether or not that is one of the objectives.
The legal grounding for intergenerational equity in Kenya arises from article 42 of the Constitution, which provides for the right to a clean and healthy environment, which includes the right to protect the environment for both present and future generations.[19]
This establishes a situation similar to a trust which exists in two forms. First, the government holds the radical title of public land in trust for the citizens.[20] Secondly, the present generation holds the environment and land in trust for the future generations, and therefore must use it in a way that will benefit the said future generations as well.
As per the decision in the case of Waweru v Republic (2006),[21] Intergenerational equity is a core component of sustainable development and a guiding principle in the Environmental Management and Coordination Act.[22]This doctrine flows from the idea that present developments must be achieved in a sustainable manner, i.e. intergenerational equity is dependent on achievement of intragenerational equity.
b)The Precautionary Principle
In the case of Waweru v Republic (2006), the court adopted the definition in Rio Declaration on Environment and Development (1992) which encourages the state to widely apply the precautionary approach to protect the environment by emphasizing that, where there are serious or irreversible damages, lack of scientific certainty should not be used as an excuse to postpone cost effective measures to prevent environmental degradation.[23] It also emphasized that this principle is a part of the International Customary Law, and should be binding.[24]
Summary of Decided Case Laws
a) Waweru V Republic (2016)[25]
This case involved the discharge of untreated sewage by residents of Kiserian town into the River Kiserian. Kiserian town sat over a shallow water table. It therefore proved difficult to construct sewer lines as that would have interfered with the water table which needed to be preserved, as River Kiserian was a major source of water for the residents.
The court held that any form of development must adhere to environmental requirements of conservation in order to preserve it for the future generations.
The court suggested that the residents use exhauster services to avoid polluting the river, as the best alternative.
It further gave instructions to the residents who engaged in the pollution of River Kiserian to compensate for the damages cost.
This case is significant for this study, as it affirms the main argument of this paper that all projects that result in environmental degradation should be eliminated, and that developers should be prepared to pay the price for restoration of degraded environment as a result of their actions. This reasoning is informed by the fact that development is always costly and those involving the environment should not be an exclusion.
How the Government Should Balance the Competing Interests
As an extension of land administration and governance, it is advised that a state should come up with rules that assist in balancing competing interests in matters of land and environment.[26]
In balancing the competing interests of development, and environmental conservation, the government should be guided by the following principles: land is a finite resource that should be utilized sustainably,[27] and the citizens should always be involved in decision making processes regarding land.[28] Additionally, land is an economically significant resource that should be managed in an economically productive way.[29] If these broader guidelines are followed, the right to a healthy and clean environment would be automatically realized, and consequently, intergenerational equity, which is the objective, would be successfully met.
In order to achieve all these objectives with intergenerational equity as the end goal, the government should embrace a model similar to the one that governs customary land tenure. Under such models, access to land rights are transgenerational, giving the people an obligation of stewardship for the benefit of both present and future members of the community.[30]
The Constitution also provides for the right to a clean and healthy environment to everyone, both present and future.[31]
Each generation that exists on earth is both a beneficiary and trustee at the same time.[32] This is proved by the fact that the current generation received the earth and natural resources from the previous generations as beneficiaries.[33] Now as trustees, they have an obligation to pass it to the future generations as well[34].
The future generations need Karura Forest for revenue generation through tourism, as a heritage, as a source of employment, as a factor contributing to the climate of the region, and as a water catchment area for supply to the evergrowing Nairobi City. The same applies to Nairobi National Park.
Before clearing the indigenous trees, the government needs to assess the other alternative places where such projects can be implemented.
The government is in pursuit of its constitutional mandate of ensuring that at least 10% of Kenyan land is covered by trees. That is the reason behind clearing trees in Karura Forest. That is an undisputed fact. However, these are trees that have taken over a decade to mature.
Raising seedlings can not only happen in Karura Forest, where destruction has to occur. The government should find other parcels of land with the same favourable conditions to execute the project. If at all no public land with the ability to facilitate the project, the state might be forced to wield its eminent domain power to acquire private land, following prompt payment of full compensation, since the public interest requirement has already been met.
In Nairobi National Park, a situation of development versus environmental conservation. As already discussed under the precautionary principle, investors should always be prepared to meet the high cost of development, including that of restoring the degraded environment.
The plan is to clear indigenous trees to pave way for the construction of a parking lot. The lot is to accommodate around 1300 vehicles at a time, while the expected number of visitors is about 1600. This will create space for vehicles in a ratio of almost 1:1 in relation to the number of visitors.
The ratio is very unreasonable as not all visitors of the convention will have vehicles, and some will arrive in group transport vehicles. This will render a greater part of the parking lot useless. The occupied land will be wasted, and the project does not amount to use of land in an economically productive way.
If at all the government must clear indigenous trees in Karura Forest and Nairobi National Park, they need to provide the future generations with alternatives of satisfying their needs, or means to repair the damage that has been caused.[35]The Environmental Impact Assessment Report was never published for the public. This means that the people are not even aware of the negative environmental impacts that might result. It is therefore a conclusion that the government has not provided the future generations with alternatives for meeting their needs, or means of repairing the damages caused. This conclusion is informed by the level of secrecy in the two scenarios.
vii. The Way Forward
a) Kenya Should Establish a Neutral Body for Oversight
As seen in other countries like Canada, France, and New Zealand, independent bodies have been established to check on the other bodies that deal with environmental issues.
Kenya should establish such a body and give it the power to conduct investigations on projects and publish reports.[36] In cases of violation of the environmental principles, it should have the power to institute legal proceedings on behalf of the public.[37] It should also have the powers to make recommendations which are binding, of which failure to comply with automatically attracts liability.
Neutral bodies enjoy the advantage of independence from influence by the executive of legislature, and a high level of efficiency as they deal with specific matters, promoting legitimacy of their operations.
Funding of such a body should be constitutionalized to prevent the state from suffocating it by underfunding, in order to enable the ill-minded individuals to escape with liabilities. This issue has been rampant in most government agencies, which are established with sound objectives but soon collapse due to underfunding. It was clearly evident in Malta, where the 2012 Commission was disbanded by way of resignation of its commissioners, because the government failed to fund it adequately.[38]
The success of these bodies depend on their philosophical grounding.[39] It is being advocated that such bodies should adopt a human rights approach.[40] This enables them to build legitimacy and authority due to the normative significance of human rights in the societies.[41]
b.The Government Should Focus on Creating Public Awareness Regarding Intergenerational Equity
The Constitution mandates the government to ensure that the socio-economic rights are realized progressively. Some of them can only be realized through development and mega projects. Many times, the citizens have put pressure on the government to fulfill its promises and discharge its constitutional mandates. This has been cited as a reason which at times forces the government to wield its radical title power and use public resources in a way that satisfies the greedy needs of the current generation. The people always desire that they live well and are never satisfied, resulting in unsustainable use of land and natural resources.
Civic education on such sensitive topics will enhance their understanding of what sustainable development entails, and enable the use of the available resources as required. This is because even the ordinary citizens at times execute development projects that are not sustainable,[42] forcing the state to use the police power principle to regulate land use and management.[43]
Conclusion
The High Court of Kenya in the case of Waweru v Republic [2006][44] used this example to illustrate how environmental degradation has been occurring gradually.
A long time ago, people used to rely on water sourced from natural sources such as rivers and lakes. With time, there were concerns that such water was not safe for drinking. This made people start relying on tap water that had been purified. Currently, nobody trusts tap water. Everyone wants to drink bottled water, claiming that tap water is no longer safe for drinking. These are water sources that were passed to the current generation as beneficiaries. This illustration shows a clear inference that the current generation has failed as trustees of the future generation. If people can no longer drink natural water which was safe when they inherited the earth, it means that they have caused the degradation. What will be the situation in fifty-years time?
Clearing indigenous trees in Karura Forest and Nairobi National Park results in irreparable harm to the environment, which does not amount to sustainable use of the environment. Sustainable development is the only pathway to ensuring that intergenerational equity is achieved. No alternative can restore the climatic conditions and the degradation of the water-catchment areas.
The causes of environmental degradation and effects are decades apart.[45] These causes will be engineered by the current generation while the effects will be felt by the future generations.[46]
As a constitutional mandate, the government should eliminate such projects which are dangerous to the environment.[47]
Reference(S):
Cases
Waweru v Republic [2006] 1 KLR (E&L) 677
Legislations
Constitution of Kenya 2010
Environmental Management and Coordination Act 1999 (Kenya)
Rio Declaration on Environment and Development (1992)
Secondary Sources
Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational Publishers/United Nations University Press 1989)
Elizabeth Dirth, ‘Governance for Future Generations: A Global Review of the Implementation of Intergenerational Equity’ (Master’s thesis, Utrecht University, 2018)
HWO Okoth Ogendo, The Tragic African Commons A century of expropriation, suppression and subversion (University of Nairobi Law Journal)
Ministry of Lands, Sessional Paper No 3 of 2009 on National Land Policy (Government of Kenya 2009)
Nixon Sifuna, Public Regulation of the Use of Private Land: Opportunities and Challenges in Kenya(Law, Environment and Development Journal 2009)
Omwoma Ronald, Public Land Tenure and The Role of State (Surveyor’s Journal 2023)
Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018)
Websites
https://www.the-star.co.ke/news/2026-03-09-cs-karura-land-cleared-for-temporary-nys-housing
[1] https://nation.africa/kenya/news/nairobi-national-park-to-lose-76-acres-forest–5405666 Accessed on 12th May, 2026
[2] ibid
[3] https://www.the-star.co.ke/news/2026-03-09-cs-karura-land-cleared-for-temporary-nys-housing Accessed on 12th May, 2026
[4] Elizabeth Dirth, ‘Governance for Future Generations: A Global Review of the Implementation of Intergenerational Equity’ (Master’s thesis, Utrecht University, 2018) 5
[5] ibid
[6] ibid
[7] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 5
[8] Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational Publishers/United Nations University Press 1989) 8–38
[9] Constitution of Kenya 2010, preamble
[10] Constitution of Kenya 2010, art 2(6)
[11] Rio Declaration on Environment and Development 1992, principle 1
[12] Rio Declaration on Environment and Development 1992, principle 3
[13] Rio Declaration on Environment and Development 1992, principle 17
[14] Elizabeth Dirth, ‘Governance for Future Generations: A Global Review of the Implementation of Intergenerational Equity’ (Master’s thesis, Utrecht University, 2018) 5
[15] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 10
[16] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 6
[17] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 10
[18] ibid
[19] Constitution of Kenya 2010, article 42
[20] Omwoma Ronald, Public Land Tenure and The Role of State (Surveyor’s Journal 2023) 4-5
[21] Waweru v Republic [2006] 1 KLR (E&L) 677
[22] Environmental Management and Coordination Act, section 5
[23] Rio Declaration on Environment and Development 1992, principle 17
[24] ibid
[25] Waweru v Republic [2006] 1 KLR (E&L) 677
[26] Omwoma Ronald, Public Land Tenure and The Role of State (Surveyor’s Journal 2023)6
[27] Ministry of Lands, Sessional Paper No 3 of 2009 on National Land Policy (Government of Kenya 2009) paragraph 29(c)
[28] Ministry of Lands, Sessional Paper No 3 of 2009 on National Land Policy (Government of Kenya 2009) paragraph 51(h)
[29] Ministry of Lands, Sessional Paper No 3 of 2009 on National Land Policy (Government of Kenya 2009) paragraph 29(a)
[30] H.W.O. Okoth-Ogendo, The Tragic African Commons A century of expropriation, suppression and subversion (University of Nairobi Law Journal) 115
[31] Constitution of Kenya 2010, article 42
[32] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 12
[33] ibid
[34] ibid
[35] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 3
[36] Elizabeth Dirth, ‘Governance for Future Generations: A Global Review of the Implementation of Intergenerational Equity’ (Master’s thesis, Utrecht University, 2018) 16
[37] ibid
[38] Elizabeth Dirth, ‘Governance for Future Generations: A Global Review of the Implementation of Intergenerational Equity’ (Master’s thesis, Utrecht University, 2018) 37
[39] Elizabeth Dirth, ‘Governance for Future Generations: A Global Review of the Implementation of Intergenerational Equity’ (Master’s thesis, Utrecht University, 2018) 41
[40] ibid
[41] ibid
[42] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 4
[43] Nixon Sifuna, Public Regulation of the Use of Private Land: Opportunities and Challenges in Kenya(Law, Environment and Development Journal 2009) 47
[44] Waweru v Republic [2006] 1 KLR (E&L) 677
[45] Otto Spijkers, Intergenerational Equity and the Sustainable Development Goals (Multidisciplinary Digital Publishing Institute 2018) 4
[46] ibid
[47] Constitution of Kenya 2010, article 69
