Haji Ibrahim Ali Hussein & 21 others v Cabinet Secretary Ministry of Energy and Petroleum & 6 others; County Government of Wajir (Interested Party) [2020] KEELC 2479 (KLR)
The bottom line
#A Kenyan court dismissed Wajir residents' challenge to oil exploration, ruling no constitutional rights were violated after the land was surrendered.
What this practically means
#Executive summary
#Key legal issues
#Precision in pleading constitutional violations
The petitioners failed to state the manner in which several rights were infringed, so no finding of violation could be made
The court invoked the Anarita Karimi Njeru standard: a petitioner must identify the constitutional provision and the manner of infringement with reasonable precision. Where the petitioners alleged breaches of Articles 28, 40, 43, 45, 60, 66 and 67 without stating the manner of violation, the court was left to speculate and declined to find any infringement. This pleading defect was decisive on those heads.
Right to a clean and healthy environment in extractive projects
No violation of Article 42; environmental impact was minimal, studies were done and the land was restored on surrender
The court accepted ESIA and Environmental Audit reports showing minimal impact, evidence that seismic holes dug by BGP Kenya Limited were filled, and the letter of 6 May 2015 confirming the land was surrendered with all materials and waste removed, leaving only the airstrip and a donated borehole. It also held the pictures of dead animals showed drought, not injury, and that no person was shown to have been injured.
Setting apart of trust land under the repealed Trust Land Act
Although the land was trust land governed by the Trust Land Act, the absence of setting apart during mere exploration caused no violation
The court accepted the land was trust land alienable only through setting apart under sections 114-116 of the old Constitution. However, exploration was time-bound for two years and the companies surrendered the land on 6 May 2015 without striking oil. Setting apart during exploration, with compensation paid, would have made no economic sense where no oil or gas was found.
Public participation and fair administrative action (Article 47)
Public participation was adequate and documented in the ESIA and EA reports, so Article 47 was not breached
The court reviewed the ESIA and EA reports, which gave detailed accounts of the people consulted and the dates of consultations, including barazas at Sericho, Habaswein and Lagboggal in March 2011 and further sensitisation meetings in 2012. It found the participation documented and adequate, and rejected the petitioners' bare assertion that participation, if any, was inadequate or done in secrecy.
Parliamentary ratification of natural resource agreements under Article 71
The 2008 PSC required no ratification, being signed before the effective date of the 2010 Constitution and saved by section 16 of the Natural Resources (Classes of Transactions Subject to Ratification) Act
The PSC was signed on 17 September 2008, before 28 August 2010. The Natural Resources (Classes of Transactions Subject to Ratification) Act No. 41 of 2016 commenced on 4 October 2016 and by section 16 deems transactions lawfully entered before its commencement valid despite absence of ratification. Accordingly no wrong was committed and the declaration sought under Article 71 failed.
Freedom of movement (Article 39)
Movement was not curtailed; only 200x200 metres was cordoned off and injunctive orders confined activities to 36 hectares
The court found that only the base camp area of 200x200 metres was cordoned off, leaving the rest of the 5,457.9 square kilometre block open to the petitioners. Interim orders confined the companies to 36 hectares. The petitioners remained free to move except within the small base area, so the Article 39 claim failed.
Legal principles established
#- A constitutional petitioner must state with reasonable precision the provisions infringed and the manner of infringement (Anarita Karimi Njeru principle)
- A violation of the right of access to information cannot be alleged before a request for such information has been made and refused
Court orders
#- 1.The two consolidated petitions are dismissed
- 2.Each party shall bear their own costs
- Jurisdiction invoked
- Articles 10, 19(2), 20(1), 21, 22(1) and (2), 23, 35, 39, 40, 42, 43, 66, 67, 69, 70, 71 and 72 of the Constitution of Kenya 2010 (enforcement of the Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haji Ibrahim Ali Hussein & 21 others v Cabinet Secretary Ministry of Energy and Petroleum & 6 others; County Government of Wajir (Interested Party) [2020] KEELC 2479 (KLR)", Case Analysis (2020). Consolidated ELC No. 1513 of 2014 (formerly Constitutional Petition No. 557 of 2014) & Constitutional Petition No. 1385 of 2014 (formerly Constitutional Petition No. 504 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2479/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.