Ibrahim Mohamud Ibrahim & another v Kenya Wildlife Service & 4 others; Ibrahim Mohamed Youssuf (Interested Party) [2020] KEELC 831 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Court had original jurisdiction to entertain the petition
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
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.
Whether the petitioners' constitutional rights were infringed and whether they deserved the orders sought
The petition fell short of the precision required in framing constitutional issues and was unsupported by evidence
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.
Costs
Each party to bear own costs because the petition was a public interest matter
Although costs ordinarily follow the event, the Court exercised discretion in favour of the petitioners since the petition was instituted in the public interest.
Legal principles established
#- 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
#- 1.The petition is struck out for want of jurisdiction
- 2.Each party to bear his/her own costs
- Jurisdiction invoked
- Articles 22, 23, 42, 60, 69 and 258 of the Constitution; Wildlife Conservation and Management Act No. 47 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.