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ELCDismissedConstitutional Petition dated 2nd September 2014· [2018] KEELC 1702 (KLR)

M’ Kaura & 9 others v Meru County Government & 3 others (Environment and Land Case 33 of 2014) [2018] KEELC 1702 (KLR)

Environment and Land Court
3 October 2018
5,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ruled that Nyambene National Reserve remains legally gazetted because a presidential roadside promise cannot undo a gazette notice.

What this practically means

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Executive summary

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This Environment and Land Court decision at Meru (Lucy N. Mbugua, ELC Judge, 3rd October 2018) dismissed a constitutional petition challenging Legal Notice No. 86 of 2000, which had declared approximately 640.6 square kilometres of land in Meru County as Nyambene National Reserve under Section 18(1) of the repealed Wildlife (Conservation and Management) Act. The Petitioners, led by Samuel M'Maroo, sought declarations that the Notice was null and void for want of consultation, that it violated Articles 60(1) and 63(4) of the Constitution, and that the County Government of Meru and Kenya Wildlife Service had unlawfully revived it, including by training armed county game wardens. They relied on an alleged 2002 presidential roadside declaration withdrawing the Notice and on ongoing land adjudication. The 1st Respondent (County Government of Meru) and 4th Respondent (KWS) opposed; the Attorney General and Cabinet Secretary for Interior filed no response. Framing four issues, the court held the Notice was lawfully published after consultation with the competent authority, applying the principle that he who alleges must prove; that no valid degazettement occurred, a roadside declaration being of no legal effect per the Balala authority; that adjudication within the Reserve was not proved; and that no constitutional violation was demonstrated, the Petitioners failing the Anarita/Ngarua and Mumo Matemu particularity threshold and being unable to apply the 2010 Constitution retrospectively per Samuel Kamau Macharia. The petition was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Whether Legal Notice No. 86 of 2000 was lawfully published

Holding

The Notice was lawfully published under Section 18(1) of the Wildlife (Conservation and Management) Act after consultations with the competent authority, and petitioners adduced no evidence to the contrary

Reasoning

The applicable law at the time was Section 117(1) of the repealed Constitution and Section 18 of the repealed Wildlife Act. The Notice itself recited consultations with Nyambene County Council as competent authority. Applying the rule that he who alleges must prove, and the petitioners tendered no evidence of absence of consultation, the court found consultation took place and the publication was lawful.

p. 10
02

Whether the Reserve was degazetted by presidential roadside declaration

Holding

No degazettement occurred; even if the presidential declaration were made, it was of no legal effect absent the statutory procedure under Section 7 of the repealed Act

Reasoning

Section 7 of the repealed Wildlife Act prescribed the procedure for an area to cease being a National Reserve. No evidence of withdrawal existed, and a roadside declaration lacks legal basis. The court applied the Balala principle that executive power must be anchored in law, and Lucy Migigo on presidential promises, concluding the Reserve remains gazetted and the land unavailable for alienation.

p. 11
03

Whether land adjudication was in progress within the Reserve

Holding

Petitioners failed to prove adjudication was ongoing within the Reserve

Reasoning

Adjudication is a function of the National Government spearheaded by the DLASO under the Land Consolidation Act and Land Adjudication Act. Petitioners did not join the DLASO to shed light on the claim nor seek a court scene visit, so the court was not persuaded adjudication was taking place within the Reserve.

p. 11
04

Whether community constitutional rights were violated

Holding

No violation proved; petitioners failed the Anarita/Ngarua and Mumo Matemu threshold of pleading with particularity, and could not rely retrospectively on the 2010 Constitution

Reasoning

Petitioners invoked Articles 27, 40 and 43 but neither laid a basis for the contention nor demonstrated the manner of infringement. Further, the Notice predated the 2010 Constitution, and applying the Supreme Court's dictum in Samuel Kamau Macharia, the new Constitution's provisions could not be applied retrospectively to divest rights vested before its commencement.

p. 12

Legal principles established

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  • Executive authority must be exercised on the basis of law and not fiat; a roadside declaration cannot revoke a gazette notice
  • A promise made by a President at a public rally cannot create or convey an interest in land
  • A constitutional petition must plead with particularity the provisions infringed and the manner of infringement
  • A court should not import retrospectivity into constitutional provisions that are forward-looking

Court orders

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  1. 1.The Petition is dismissed in its entirety with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 60(1)
  • Constitution of KenyaArticle 63(4), 63(2)(d)
  • Constitution of KenyaArticles 27, 40, 43
  • Constitution of Kenya (repealed)Section 117(1)
  • Wildlife (Conservation and Management) Act (CAP 376, repealed)Section 18(1), Section 7
  • Wildlife Conservation and Management Act 2013Section 6(1), Section 119(a), Eleventh Schedule
  • Trust Land Act (CAP 288)Section 13
  • Land Consolidation Act
  • Land Adjudication Act
  • Legal Notice No. 86 of 2000

Cases cited (5)

  • Attorney General & 6 others v Mohamed Balala & 11 others
    [2014] eKLR
  • Lucy Migigo & 550 others v Minister for Lands and 4 Others
    COA Nyeri Civil Appeal No. 227 of 2011
  • Ledida Ole Tauta & Others v Attorney General & 2 Others
    Petition No. 47 of 2010
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Samuel Kamau Macharia and Another v Kenya Commercial Bank Ltd & 2 Others
    [2012] eKLR
Jurisdiction invoked
Original constitutional jurisdiction of the High Court-equivalent Environment and Land Court under the Constitution of Kenya, 2010

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, "M’ Kaura & 9 others v Meru County Government & 3 others (Environment and Land Case 33 of 2014) [2018] KEELC 1702 (KLR)", Case Analysis (2018). Constitutional Petition dated 2nd September 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1702/eng@2018-10-03

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