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ELCAllowedNot stated in the judgment (Notice of Motion dated 9/10/2018)· [2019] KEELC 2150 (KLR)

Ibrahim Mohamued Ibrahim & another v Kenya Wildlife Service & 4 others [2019] KEELC 2150 (KLR)

Environment and Land Court
2 August 2019
ECE. C Cherono
2,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted construction and settlement inside Malka Mari National Park, showing courts will protect public land even against government agencies.

What this practically means

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Executive summary

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This Environment and Land Court judgment, delivered by E. C Cherono J on 2nd August 2019, determined a Notice of Motion dated 9th October 2018 seeking temporary injunctions pending the hearing of a petition concerning Malka Mari National Park in Mandera County. The Applicant, a petitioner, alleged that the Respondents - state agencies including the national wildlife authority and the County Government - had neglected and refused to conserve and protect the park, permitting a pastoralist community to settle within it and engaging in unauthorised construction of roads, schools, dispensaries, police stations and administrative posts without environmental impact assessment or public participation, and that the 4th Respondent had budgeted 2018/2019 funds for such activities. The 1st Respondent argued that the Wildlife Conservation and Management Act provides an elaborate statutory dispute resolution mechanism which ought to have been exhausted, while the 4th Respondent raised a preliminary objection on jurisdiction, contending that failure to use the statutory dispute resolution mechanism ousted the court's jurisdiction. The court had already determined the jurisdictional issues in a ruling delivered on 9th May 2019, so the only remaining question was whether the Applicant had established the principles for conservatory orders. Applying Giella v Cassman Brown and the Supreme Court's guidance in Gatirau Peter Munya v Dickson Mwenda Kithinji, and noting that the Applicant's sworn allegations were uncontroverted - particularly by the 4th Respondent - the court found the public interest, constitutional values and proportionate magnitude of the cause demonstrated. The application was allowed as prayed, with injunctions restraining the respondents from construction, development, tendering and plot allotment within the park pending determination of the petition. Costs were made costs in the cause.

Key legal issues

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01

Whether the Applicant established a prima facie case justifying conservatory orders protecting Malka Mari National Park

Holding

The Applicant established the public interest, constitutional values and proportionate magnitude required; uncontroverted sworn allegations of unlawful construction, settlement and budgeted expenditure within the park warranted the injunction.

Reasoning

The court had already resolved the jurisdictional objection in its ruling of 9th May 2019, leaving only the merits of the injunction application. Applying Giella and the Supreme Court's conservatory-orders guidance in Munya, the court noted the Applicant's sworn allegations about construction of roads, schools, dispensaries and police stations within the park and an unspent 2018/2019 county budget financing such activities, none of which were controverted by the Respondents, particularly the 4th Respondent. It therefore found merit and allowed the application as prayed.

p. 4

Legal principles established

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  • Conservatory orders are granted on the inherent merits of a case, bearing in mind the public interest and constitutional values, rather than on the private-law tests of irreparable harm and high probability of success.
  • A prima facie case for conservatory orders need not be a case which must succeed, but must disclose arguable issues and is established with a likelihood of success.

Court orders

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  1. 1.Application allowed as prayed: temporary injunction pending the hearing and determination of the application and of the petition restraining the respondents from undertaking, commissioning or awarding tenders for constructions or developments of any structures and/or infrastructure, allotting plots to squatters/settlers, or doing anything within Malka Mari National Park that would be hazardous, injurious or endanger the habitat, ecosystem and species of the park
  2. 2.Costs of the application shall be costs in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 19, 20, 21, 22, 23, 27, 28, 47, 48
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51
  • Wildlife Conservation and Management Act No. 47 of 2013Sections 18, 117, 119(a) Eleventh Schedule

Cases cited (3)

  • GIELLA –VS- CASSMAN BROWN & CO. LTD
    (1973) EA 358
  • KEVIN K. MWITI & OTHERS –VS- KENYA SCHOOL OF LAW & OTHERS
  • GATIRAU PETER MUNYA –VS- DICKSON MWENDA KITHINJI & 2 OTHERS
    (2014) eKLR
Jurisdiction invoked
Articles 19, 20, 21, 22, 23, 27, 28, 47 and 48 of the Constitution of Kenya 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Civil Procedure Rules

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, "Ibrahim Mohamued Ibrahim & another v Kenya Wildlife Service & 4 others [2019] KEELC 2150 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 9/10/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2150/eng@2019-08-02

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