Okiya Omtatah Okoiti v Kenya Wildlife Service (KWS) & 14 others [2020] KEELC 2536 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and locus standi under section 108(1) WCM Act
The preliminary objection failed wholly; the petitioner has locus standi and the court has jurisdiction, including over an unincorporated body as 'person'
Section 108(1) WCM Act permits any person who believes the Act has been or is about to be violated to petition the Environment and Land Court. Read with Article 260 of the Constitution and rule 2 of the Mutunga Rules, 'person' includes an unincorporated body, so the petition lies against the 2nd respondent. Whether the 2nd and 7th to 11th respondents were properly joined is a matter for trial.
Whether conservatory orders should issue
No prima facie case was established; the application for conservatory orders was refused
The evidence showed extensive stakeholder engagement and public participation, consideration of several route options, mitigation measures, and design adjustments to protect wildlife. The documents the petitioner relied on as evidence of the decision were unsigned and could not constitute a decision capable of suspension. Further, the NET had already dismissed a similar appeal and that decision had not been varied or set aside.
Certification under Article 165(4) of the Constitution
The petition raises no substantial question of law warranting a bench of three or five judges
Applying the test in Chunilal V. Mehta as adopted by the Court of Appeal in Okiya Omtatah Okoiti v Anne Waiguru, certification is discretionary and requires a basis to be laid. The issues here were neither novel nor complex; most have been litigated and determined in superior courts. The presiding judge was not persuaded that a substantial question of law arose.
Legal principles established
#- Under section 108(1) of the WCM Act any person has locus standi to petition the Environment and Land Court for violation or threatened violation of the Act, and the court has jurisdiction to hear such a petition
- Misjoinder or non-joinder of parties cannot defeat a petition
- An applicant for conservatory orders must establish a prima facie case with likelihood of success
Court orders
#- 1.The Notice of Motion application dated 18th October, 2016 is dismissed with costs to be in the cause
- 2.The 1st and 2nd respondents' preliminary objection is dismissed
- Jurisdiction invoked
- Section 108(1) of the Wildlife Conservation and Management Act read with Articles 22, 23 and 70 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Kenya Wildlife Service (KWS) & 14 others [2020] KEELC 2536 (KLR)", Case Analysis (2020). Petition dated with Notice of Motion dated 18th October, 2016 (petition number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2536/eng@2020-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.