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ELCDismissedPetition dated 4 June 2012 (Nakuru High Court)· [2016] KEELC 1085 (KLR)

V/D Berg Roses & Project Agro Lease Limited v Attonery General & Minister for Environment and Mineral Resources [2016] KEELC 1085 (KLR)

Environment and Land Court
16 February 2016
MSMunyao Sila
5,387 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that owning land near Lake Naivasha does not give owners the right to use it in ways that harm the environment.

What this practically means

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Executive summary

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This was a constitutional petition filed on 4 June 2012 by V/d Berg Roses Kenya Limited and Project Agro Lease Limited against the Attorney General and the Minister for Environment and Mineral Resources, with NEMA later joined as interested party. The petitioners challenged paragraphs m, n, o and p of the Habitat Management and Nature Conservation part of the Environmental Management (Lake Naivasha Management Plan) Order, Legal Notice No. 108 of 2004, which prohibited agricultural activities and unapproved structures on riparian land, seeking declarations that the provisions violated their right to property under Article 40 and a conservatory order restraining implementation. The respondents and NEMA argued the regulations were made to fulfil Kenya's obligations under the Ramsar Convention, that riparian reserves are public land, that the petition was belated and an abuse of process, and that the petitioners lacked locus. The court struck out the name of the 2nd petitioner, which the Registrar of Companies confirmed no longer existed. On the merits, the court held there is no limitation period for challenging the constitutionality of a law, that participation in law-making is no bar to such a challenge, that the NET lacked jurisdiction over a Legal Notice, and that the question of public participation was outside the pleadings. On the main issue, the court held that ownership of land confers no licence to use it as one wishes: Articles 60 and 69 require sustainable land use and protection of ecologically sensitive areas, and the impugned provisions were valid environmental regulation consistent with the Constitution. The petition was dismissed with costs.

Key legal issues

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01

Whether paragraphs m, n, o and p of the LNMO violate the right to property under Article 40

Holding

They do not; they are fully in conformity with the Constitution and are aimed at protecting an ecologically sensitive wetland

Reasoning

Article 40 protects property but the Constitution also imposes obligations under Articles 60 and 69 to use land sustainably and protect ecologically sensitive areas. Lake Naivasha is a Ramsar site and Kenya has international obligations to conserve wetlands. Prohibiting agriculture and unapproved structures on riparian land, encouraging indigenous planting and cultivation away from the lake are legitimate environmental regulation, not arbitrary deprivation of property.

p. 8
02

Whether the petition was barred by delay of 8 years since gazettement of the LNMO

Holding

No; there is no limitation of time for challenging the constitutionality of a law

Reasoning

A law does not become constitutional merely because it has operated unchallenged for years. Article 2 makes the Constitution supreme and any inconsistent law void, so any law, old or new, may be challenged at any time. Equitable maxims against indolence do not apply to constitutional challenges, and laws predating the 2010 Constitution are not exempt from conformity.

p. 5
03

Whether the petitioner was barred from challenging the LNMO because it participated in the consultative process or should have gone to the NET

Holding

Neither participation in law-making nor the existence of a NET appeal route bars a constitutional petition

Reasoning

Participation in passing an unconstitutional law does not bar a later challenge to its constitutionality. The NET's jurisdiction under Section 129 of EMCA covers only disputes arising from NEMA decisions; a Legal Notice is not a NEMA decision, so the Tribunal has no jurisdiction over a constitutional challenge to it.

p. 5
04

Whether the LNMO could be attacked for want of public participation

Holding

The question was off limits; the petition challenged specific provisions, not the process leading to the LNMO

Reasoning

Both counsel addressed public participation, but the petition itself expressly disavowed any challenge to how Legal Notice No. 108 of 2004 was made. The court confined itself to the pleaded issue - the constitutionality of the provisions - and declined to determine process issues not raised in the pleadings.

p. 5
05

Whether the 2nd petitioner existed and had locus standi

Holding

Project Agro Lease Limited did not exist at filing (it had changed its name to Project Horti Lease Limited) and its name was struck out

Reasoning

The Registrar of Companies confirmed Project Agro Lease Limited changed its name in 2007, so it could not be a petitioner in 2012. Benefit of doubt was extended to V/d Berg Roses Kenya Limited, which the court treated as the sole petitioner.

p. 4

Legal principles established

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  • There is no limitation period for challenging the constitutionality of a law; the maxims of equity on indolence do not apply to constitutional challenges
  • All laws, including those enacted before the Constitution of 2010, must conform to the Constitution in operation
  • Ownership of land does not confer a licence to use it as one wishes; land use is subject to regulation for environmental protection
  • The National Environmental Tribunal has no jurisdiction to declare a Legal Notice unconstitutional since its mandate under Section 129 of EMCA is confined to disputes arising from NEMA decisions

Court orders

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  1. 1.The name of the 2nd petitioner (Project Agro Lease Limited) struck out from the suit for non-existence
  2. 2.The petition dismissed with costs
  3. 3.Costs of striking out the 2nd petitioner to be borne by Mr. Reemus

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 2(4), 2(5), 10, 27(4), 40, 60, 62, 65, 69(1), 69(2)
  • Environmental Management (Lake Naivasha Management Plan) OrderLegal Notice No. 108 of 2004, paragraphs m, n, o, p
  • Environmental Management and Coordination Act, 1999Sections 9, 9(2)(n), 44, 47, 50, 129
  • Water Resources Management RulesSections 2, 116, 118(1) and (2)
  • Agriculture ActCAP 318, Section 48
  • Ramsar Convention (Convention on Wetlands of International Importance especially as Waterfowl Habitat)Article 3(1)
Jurisdiction invoked
Original constitutional jurisdiction under Article 165 of the Constitution (petition challenging constitutionality of Legal Notice No. 108 of 2004)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "V/D Berg Roses & Project Agro Lease Limited v Attonery General & Minister for Environment and Mineral Resources [2016] KEELC 1085 (KLR)", Case Analysis (2016). Petition dated 4 June 2012 (Nakuru High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1085/eng@2016-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.