Mohamed Hussein Haji v Issa Kuno & 4 others [2018] KEELC 3780 (KLR)
The bottom line
#A Garissa court halted gypsum mining that skipped public participation and community land consent, confirming anyone can sue to protect Kenya's environment.
What this practically means
#Executive summary
#Key legal issues
#Standing in public interest environmental litigation
The Petitioner had standing to bring the petition in public interest notwithstanding that he was not a resident of the affected area
Article 22(2) permits any person to institute proceedings claiming a right has been infringed, including a person acting in the public interest or in the interest of a group or class of persons. The court held that residency or community membership was not a precondition, and the Petitioner was entitled to invoke the jurisdiction in public interest on behalf of the affected residents of Jibril area.
Compliance with constitutional and statutory requirements for mining on community land
The 1st and 2nd Respondents did not comply with the constitutional and statutory regulatory requirements before commencing mining, rendering the activities illegal and unlawful
The land was unregistered community land held in trust by the County Government of Garissa under the Community Land Act. No consent was sought or obtained from the County Government, no public participation was conducted, and the register of licensed mining entities did not include the 1st and 2nd Respondents. National values and principles of governance under Article 10, including public participation and sustainable development, were not observed, so the mining activities were illegal and infringed the Petitioner's and community's rights.
Application to set aside the conservatory order
The 1st and 2nd Respondents' application to set aside the conservatory order was not successful; the petition succeeded on proof of infringement
The court found on a balance of probabilities that the 1st and 2nd Respondents had infringed or were likely to infringe rights, and proceeded to issue declaratory and judicial review orders rather than setting aside the conservatory orders. The Respondents had not met the threshold for setting aside or varying the orders obtained by the Petitioner.
Legal principles established
#- A petitioner need not be a resident or member of the community to institute a public interest constitutional petition
- Unregistered community land is held in trust by the County Government and transactions require consent and compliance with the Community Land Act
- Development that threatens life is not suitable development and must be halted; the precautionary principle applies where there are threats of serious or irreversible environmental damage
Court orders
#- 1.A declaration that the 1st and 2nd Respondents have not complied with all the constitutional and statutory regulatory requirements before mining activities commenced in Jibril area within Wabari Ward in Garissa County and that the activities being undertaken in the abovementioned area has infringed and/or are likely to infringe on the Petitioner's rights and those of the surrounding community
- 2.An Order of certiorari to bring into the Court for purposes of quashing any decision by the 3rd and 5th Respondents to issue the 1st and 2nd Respondents with any permit and/or licence
- 3.An order of mandamus compelling the 3rd to 5th Respondents to ensure that all the constitutional and statutory regulatory requirements are met by the 1st and 2nd Respondents before any mining exploration or prospecting activities are conducted by the 1st and 2nd Respondents
- 4.Each party to bear his own costs of the petition
- Jurisdiction invoked
- Articles 22, 23 and 162(2)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Hussein Haji v Issa Kuno & 4 others [2018] KEELC 3780 (KLR)", Case Analysis (2018). Environment and Land Petition No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3780/eng@2018-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.