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ELCStruck OutELC Petition No. 3 of 2018· [2020] KEELC 831 (KLR)

Ibrahim Mohamud Ibrahim & another v Kenya Wildlife Service & 4 others; Ibrahim Mohamed Youssuf (Interested Party) [2020] KEELC 831 (KLR)

Environment and Land Court
30 October 2020
7,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a Malka Mari National Park petition because the petitioners skipped the wildlife dispute procedure the law requires them to use first.

What this practically means

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Executive summary

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Two Mandera residents, suing on their own behalf and on behalf of the people of Mandera County and the Republic of Kenya at large, petitioned the Environment and Land Court at Garissa seeking a permanent injunction against development within Malka Mari National Park, a declaration that settlement within the Park was illegal and unconstitutional, orders for eviction and relocation of settled communities, and an order compelling the respondents to provide security and conserve the Park's wildlife. The respondents opposed the petition: Kenya Wildlife Service said efforts were hampered by budgetary constraints and inter-clan insecurity; the 2nd, 3rd and 5th respondents said the petition was speculative and unproved; the 4th respondent (Mandera County Government) raised a preliminary objection on jurisdiction, contending the dispute should first have gone to the County under Section 117 of the Wildlife Conservation and Management Act; and the interested party, a member of the Degodia community, argued the Park was created politically and that eviction orders would violate human dignity. The Court framed three issues: jurisdiction, whether rights were infringed, and costs. Applying Section 117 of the Act, Speaker of the National Assembly v Karume, Samuel Kamau Macharia and Communication Commission of Kenya, the Court held that its jurisdiction in wildlife matters only crystallizes on appeal from the County structures and the National Environment Tribunal, and that the petitioners' failure to exhaust that mechanism rendered the petition premature and defective. On the merits, the Court found the petition fell short of the Anarita Karimi precision threshold and was unsupported by evidence. The Court struck out the petition, ordering each party to bear own costs in view of the public interest nature of the suit.

Key legal issues

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01

Whether the Court had original jurisdiction to entertain the petition

Holding

The petition was premature and defective because the petitioners failed to follow the statutory dispute resolution mechanism in Section 117 of the Wildlife Conservation and Management Act, violating the principle of constitutional avoidance

Reasoning

Section 117 of the Act requires wildlife management disputes to be referred in the first instance to the lowest devolved structure, then to the National Environment Tribunal, with appeal lying to the Environment and Land Court. The Court's jurisdiction was therefore only appellate, and it had not crystallized. Guided by Speaker of National Assembly v Karume and Samuel Kamau Macharia, the Court could not expand its jurisdiction by judicial craft.

p. 10
02

Whether the petitioners' constitutional rights were infringed and whether they deserved the orders sought

Holding

The petition fell short of the precision required in framing constitutional issues and was unsupported by evidence

Reasoning

Relying on the Anarita Karimi principle as restated in S.W.M. v G.M.N., the petitioners were required to state with precision the provision infringed, the manner and extent of infringement. The petition failed to do so, reading more like a complaint about animal rights. Further, the allegations of settlement, poaching and illegal construction within the Park were not supported by any substantial evidence.

p. 11
03

Costs

Holding

Each party to bear own costs because the petition was a public interest matter

Reasoning

Although costs ordinarily follow the event, the Court exercised discretion in favour of the petitioners since the petition was instituted in the public interest.

p. 11

Legal principles established

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  • Where a statute prescribes a dispute resolution mechanism, that procedure should be strictly followed before resort to the constitutional petition
  • Jurisdiction is everything; a court without jurisdiction must down its tools
  • A party alleging constitutional infringement must plead the provision infringed, the manner and the nature and extent of infringement with precision

Court orders

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  1. 1.The petition is struck out for want of jurisdiction
  2. 2.Each party to bear his/her own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 6, 10, 11, 19, 20, 21, 22, 23, 26, 28, 29, 40, 42, 50, 60, 66, 67(3), 69, 70, 72, 84, 159, 169, 22(1)(d), 258
  • Wildlife Conservation and Management ActSections 4, 6, 7, 117, 119(a) Eleventh Schedule
  • Environment and Land Court Act
  • Evidence ActSection 107
  • Devolution of Government Act
  • Fair Administration Action ActSections 9(1), 9(2)
  • Public Procurement and Assets Disposal Act
  • Trust Land Act (repealed)Cap. 288

Cases cited (23)

  • The Owners of Motor Vessel "Lillian s" Vs Caltex Oil Kenya Ltd
    (1989) K.L.R 1
  • Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Limited & 2 Others
    (2012) e K.L.R
  • Speaker of the National Assembly Vs Karume
    (1990-1994) E.A. 549
  • Narok County Council Vs Trans Mara County Council
    (2000) 1 E.A. 161
  • Communication Commission of Kenya & 5 Others Vs Royal Media Services & 5 Others
    Petition No. 14, 14A, 14B and 14C of (2014) e K.L.R
  • Daniel N. Mugendi vs Kenyatta University & 3 Others
    (2013) eklr
  • United States International University (USIU) vs Attorney General
    (2012) Eklr
  • S.W.M. VS G.M.N
    (2012) e K.L.R
  • John Kimani Mwangi Vs Town Clerk Kangema
    Petition No. 1039 of 2007
  • Anarita Karimi Njeru Vs Republic
  • Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 Others
    (2013) e K.L.R
  • John Kabukuru Kibicho and Another Vs County Government of Nakuru and 3 Others
    (2016) e K.L.R
  • Mohammed Hussein Yakub and 5 Others Vs County Government of Mandera and 5 Others
    (2020) e K.L.R
  • Onyango Okello and 69 Others Vs Kenya Wildlife Services and 5 Others
    (2019) e K.L.R
  • Levi Simiyu Makate Vs Kovi John Waluke & 2 Others
    Bungoma Election Petition No. 4 of 2017, (2018) e K.L.R
  • Raila Amolo Odinga & Another Vs I.E.B.C & 2 Others
    Presidential Election Petition No. 1 of 2017, (2017) e K.L.R
  • Benard Murage Vs Fine Serve Africa Limited & 3 Others
    (2015) e K.L.R
  • Titus Barasa Makhanu Vs Police Constable Simon Kinuthia Gitau & 3 Others
    (2016) e K.L.R
  • Harrikissoon Vs Attorney General of Trinidad and Tobago
    (1980) A.C 265
  • J.M.K. Vs M.W.M. & Another
    (2015) e K.L.R
  • Meza Galana & 3 Others Vs Attorney General & 2 Others
    (2007) e K.L.R
  • Ashwander Vs Tennessee Valley Authority
    297 U.S 288, 347 (1936)
  • S-V-Mhiungu
    1995 (3) S.A. 867 (CC)
Jurisdiction invoked
Articles 22, 23, 42, 60, 69 and 258 of the Constitution; Wildlife Conservation and Management Act No. 47 of 2013

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 Mohamud Ibrahim & another v Kenya Wildlife Service & 4 others; Ibrahim Mohamed Youssuf (Interested Party) [2020] KEELC 831 (KLR)", Case Analysis (2020). ELC Petition No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/831/eng@2020-10-30

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