Makueni County Assembly v National Environment Management Authority & 3 others; Mbooni Development Group & 5 others (Interested Parties) [2019] KEELC 2996 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed Makueni County Assembly's challenge to logging in South Mbooni Forest, finding the logging lawful, properly licensed, and the petition poorly drafted.
What this practically means
#Executive summary
#Key legal issues
#Whether Kivale Forest is a recognized forest under the law
Kivale Forest is not a gazetted public forest and is unknown in law; only South Mbooni Forest, gazetted under Legal Notice No. 14/1933, is recognized under the Third Schedule of the Forest Conservation and Management Act, 2016.
The Third Schedule of the Forest Conservation and Management Act, 2016 lists gazetted public forests, and Kivale is not among them. South Mbooni Forest, gazetted under Legal Notice 14/1933, appears. The petitioner's own further affidavit deposed that the forest in question is South Mbooni forest also known as Kivale forest. The court held that if South Mbooni had an alternative name it should have been in the schedule; hence 'Kivale forest' is unknown in law and any orders granted would be unenforceable.
The nature of South Mbooni Forest
South Mbooni Forest is part plantation forest, per KFS's unchallenged evidence; the petitioner did not discharge its burden of proving otherwise.
KFS deposed, through Monica Kalenda, that Mbooni forest comprises 882.6 Ha (44.3%) indigenous vegetation and 1,110.1 Ha (55.7%) plantation vegetation, with South Mbooni covering 207.6 Ha as plantation. KFS, as custodian of public forests, was better placed to categorize the forest. The burden lay on the petitioner, who did not discharge it. The categorization matters because it determines permissible activities.
Whether the logging in South Mbooni Forest was illegal
The logging was legal: a compliant EIA project report was prepared by a registered expert and licensed by NEMA, logging in a plantation forest is permitted under section 43(1) of the Forest Conservation and Management Act, and public participation requirements were met.
The EMCA second schedule requires EIA for timber harvesting, but the court accepted NEMA's distinction between project and study reports under Legal Notice 101 of 2003, holding the low-impact activities called for a project report. The report was prepared by Eco Consultants, a registered EIA expert firm, per regulation 7(3). Lead agencies including the petitioner were consulted; only WARMA responded. Re-afforestation measures were in place. Logging in a plantation forest for commercial purposes is lawful under section 43(1).
Whether the Constitution was violated
No constitutional violation; the petition failed the Anarita Karimi Njeru competency test and was dismissed with costs.
The court reiterated that a petitioner must plead with reasonable precision the constitutional provisions violated, the manner of violation and the remedy sought. Since the logging was conducted strictly within the law, lawful conduct cannot constitute constitutional violation. The petition was devoid of specificity, rested on a forest unknown in law, and disclosed only the petitioner's poor appreciation of the law; balancing preservation against sustainable exploitation, the balance tilts in favour of the latter.
Legal principles established
#- A petitioner alleging constitutional violation must plead with reasonable precision the provisions violated, the manner of violation and the remedy sought (Anarita Karimi Njeru test).
- Timber harvesting and clearance of forest areas in the EMCA second schedule require an EIA prior to commencement.
- Conduct that is lawful cannot found a claim of constitutional violation; a defective petition in form and substance should be struck out.
Court orders
#- 1.Dismissal of the petition
- 2.Costs of the petition awarded to the respondents
- Jurisdiction invoked
- Articles 22, 69 and 70 of the Constitution (enforcement of environmental rights under the Bill of Rights); Articles 69(1)(b) and 69(1)(h) cited on sustainable use
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makueni County Assembly v National Environment Management Authority & 3 others; Mbooni Development Group & 5 others (Interested Parties) [2019] KEELC 2996 (KLR)", Case Analysis (2019). Constitutional Petition dated 27th November, 2017 (Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2996/eng@2019-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.