Aligning profit and planet: Kenya

Kenya’s traditions offer part of the answer. For generations, pre-colonial communities governed land through intricate customary systems that prioritised sustainable use and collective benefit. These systems were not simply cultural artefacts; they served as informal environmental governance frameworks. Communities managed forests, grazing fields and water sources with rules grounded in preservation and reciprocity, ensuring that biodiversity thrived alongside human settlement.

Colonialism disrupted this balance. By imposing formal land tenure laws designed to facilitate settler control and economic extraction, colonial rule dismantled indigenous ecological management. Communal tenure systems were marginalised or erased, and biodiversity previously protected through shared stewardship became increasingly vulnerable to exploitation.

Post-independence, Kenya sought to correct this trajectory. Landmark legal instruments such as the Constitution of Kenya 2010 reintroduced principles of equity, sustainability and conservation into the framework of land governance. Article 60 of the Constitution underscores land use that is “equitable, efficient, productive and sustainable”, while Article 63 recognises community land as a distinct category, restoring legal status to forms of tenure once relegated to the periphery.

Crucially, the Community Land Act, CAP. 300, and the Land Registration Act, CAP. 300, operationalise these constitutional principles by setting out the legal mechanisms through which communities may register, govern and protect their ancestral lands. This legal recognition opens the door for biodiversity protection through collective agency, grounded in both tradition and law.

Case law illustrates how this model is gaining traction.

• In Katiba Institute & 3 others v National Environment Management Authority & 5 others [2019], the High Court underscored the importance of public participation and environmental safeguards in approving large-scale infrastructure projects on community land. The ruling emphasised that biodiversity cannot be an afterthought – it must be integrated into the early stages of development planning.
• In Joseph Letuya & 21 others v Attorney General & 5 others [2014], the court acknowledged the historical injustices suffered by the Ogiek community in the Mau Forest Complex. The judgement affirmed the link between community land rights and ecological integrity, noting that the community’s displacement had directly undermined forest conservation.

These legal developments illustrate a growing jurisprudence that affirms the compatibility of commercial operations with community stewardship, provided that development respects ecological thresholds, legal rights and participatory processes.

Kenya stands at a pivotal moment. The country’s legal framework is among the most progressive in the region on matters of land and environment. But translating legal rights into actual protection for biodiversity will require active enforcement, corporate accountability and continued support for communities as environmental custodians.

As commercial imperatives increasingly intersect with environmental constraints, the prevailing narrative of conflict need not hold true. At CMS Law, we see it as our professional duty to guide clients toward solutions where business interests and biodiversity protections are not mutually exclusive but mutually reinforcing. Our advisory approach emphasises that environmental stewardship – particularly where land is communally owned – can enhance, not hinder, commercial viability. In a recent engagement, we successfully advised our client through negotiations with a local community holding legal title to ecologically significant land. The outcome demonstrated the value of partnership: the community remained active stewards of the environment, while the client benefited from a stable, cooperative relationship that enhanced operational sustainability and shared economic gains. This was achieved without compromising biodiversity protections.

While the recognition and implementation of community-based land ownership offers a powerful mechanism for biodiversity protection, it does not displace the enduring importance of more direct, traditional environmental protection action. We are committed to leveraging our expertise, resources and institutional experience in support of both. Our firm remains deeply engaged in advancing biodiversity protection through litigation, policy guidance and advisory work.

Kenya’s evolving environmental jurisprudence reflects a decisive shift toward a rights-based framework. Anchored in the Constitution of Kenya 2010, Article 42 affirms the right of every person to a clean and healthy environment, while Article 70 provides the legal avenues for enforcing this right through judicial redress. These provisions have given rise to a new era of environmental litigation.

In one matter, we successfully represented a private client in a claim against the county government of Mombasa accused of unlawfully dumping waste on private land. The environmental degradation extended beyond property harm as it endangered indigenous bird species and marine ecosystems, posing a clear threat to biodiversity. We argued, and the court affirmed, that government action must conform to constitutional environmental standards. The ruling reinforced that public entities are not exempt from the duty to uphold environmental rights as everyone is entitled to protection, and each infringement demands accountability.

The path to safeguarding Kenya’s biodiversity lies not in choosing between community stewardship and formal legal enforcement, but in deploying both strategically and in tandem. Community land ownership offers a vital framework for environmental protection, grounded in indigenous knowledge and participatory governance. Yet, as recent litigation demonstrates, constitutional environmental rights and judicial remedies remain critical tools in confronting government and corporate actions that threaten Kenya’s biodiversity. As a firm, we recognise that legal practice must evolve to reflect this dual approach. Whether advising clients on sustainable commercial ventures or litigating to enforce environmental rights, our role is to ensure that economic progress does not come at biodiversity’s expense but rather contributes to its preservation.

The legal frameworks are in place. What’s required are the will and the responsibility to use them effectively.