M’ Kaura & 9 others v Meru County Government & 3 others (Environment and Land Case 33 of 2014) [2018] KEELC 1702 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether Legal Notice No. 86 of 2000 was lawfully published
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
The applicable law at the time was Section 117(1) of the repealed Constitution and Section 18 of the repealed Wildlife Act.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.
Whether the Reserve was degazetted by presidential roadside declaration
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the presidential declaration were made, it was of no legal effect absent the statutory procedure under Section 7 of the repealed Act
Section 7 of the repealed Wildlife Act prescribed the procedure for an area to cease being a National Reserve.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.
Whether land adjudication was in progress within the Reserve
Petitioners failed to prove adjudication was ongoing within the Reserve
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.
Whether community constitutional rights were violated
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
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.
Legal principles established
#- 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
#- 1.The Petition is dismissed in its entirety with no orders as to costs
- Jurisdiction invoked
- Original constitutional jurisdiction of the High Court-equivalent Environment and Land Court under the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.