George Hyke Kiplagat Bartenge & 2 others v Eldama Ravine Education Foundation & another [2015] KEELC 2 (KLR)
The bottom line
#The Environment and Land Court dismissed a challenge to the proposed excision of Narasha Forest because the petitioners offered no real evidence their environmental rights were threatened.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners established a prima facie case of actual or threatened violation of their environmental rights
No. The evidence was insufficient to show that the 2nd respondent was in the process of excising forest land; the request had been rejected and the statutory excision procedure had not been breached.
The court found the supporting affidavit and newspaper cuttings insufficient, the latter having no evidential value. The application by the 1st respondent was rejected and any excision by the 2nd respondent must follow the elaborate procedure under section 28 of the Forests Act Cap. 385. Without evidence that this process would be breached, no threat to Article 42 rights existed, and conservatory orders could not issue.
Whether the 1st respondent was non-suited
Yes. It was not established that the 1st respondent applied for allocation of land in Narasha forest; the application had been made by the Honourable Moses Lessonet MP and was rejected, making the petition against the 1st respondent unnecessary.
The 1st respondent denied ever applying for the allocation, and the evidence showed that the MP for Eldama Ravine made the request for 30 acres for a public high school, which the Director of Kenya Forest Service and the Mau Forest Conservancy Committee rejected. There was therefore no legal basis for suing the 1st respondent, and no reasonable cause of action was disclosed against it.
Whether the court was the wrong forum for the petition
No. Article 42 of the Constitution, section 3 of the Environmental Management and Coordination Act and section 13 of the Environment and Land Court Act clothe the court with jurisdiction over environmental rights disputes.
The court examined Articles 42 and 70, section 3 of EMCA Cap. 367 and section 13 of the Environment and Land Court Act No. 19 of 2011, read with Article 162(2)(b) of the Constitution, and concluded these provisions collectively confer jurisdiction to entertain all matters touching on the right to a clean environment, including redress for threatened violations under Articles 42, 69 and 70.
Legal principles established
#- A party seeking constitutional redress must set out with reasonable precision the complaint, the constitutional provisions infringed, and the manner of infringement.
- The Environment and Land Court has jurisdiction under Article 42 of the Constitution, the Environmental Management and Coordination Act and section 13 of the Environment and Land Court Act to adjudicate on matters touching on a clean and healthy environment.
- A threatened-rights petition fails where no prima facie evidence of a threat of violation exists, the request having been rejected under the statutory excision procedure.
Court orders
#- 1.The preliminary objection is upheld.
- 2.The petition dated 18th February, 2015 is dismissed.
- 3.No order as to costs.
- Jurisdiction invoked
- Article 42 and 70 of the Constitution; section 3 of the Environmental Management and Coordination Act Cap. 367; section 13 of the Environment and Land Court Act No. 19 of 2011; Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Hyke Kiplagat Bartenge & 2 others v Eldama Ravine Education Foundation & another [2015] KEELC 2 (KLR)", Case Analysis (2015). Petition dated 18th February, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/2/eng@2015-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.