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ELCDismissedPetition dated with Notice of Motion dated 18th October, 2016 (petition number not stated in the judgment)· [2020] KEELC 2536 (KLR)

Okiya Omtatah Okoiti v Kenya Wildlife Service (KWS) & 14 others [2020] KEELC 2536 (KLR)

Environment and Land Court
18 May 2020
7,821 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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What this practically means

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Executive summary

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The petitioner, Okiya Omtatah Okoiti, moved the Environment and Land Court by Notice of Motion dated 18th October, 2016 seeking suspension of the decision allowing the Standard Gauge Railway phase 2A to be routed through the Nairobi National Park, a temporary order of prohibition against its implementation, and certification that the petition raised a substantial question of law for referral to the Chief Justice under Article 165(4) of the Constitution. He contended the decision was made without scientific studies, public participation, parliamentary approval, or a management plan for the park, and that the trustees of the 1st respondent were irregularly appointed. The 1st, 2nd and 7th to 11th respondents raised a preliminary objection on jurisdiction and relied on the petitioner's parallel proceedings before the National Environment Tribunal, including NET Appeal No. 200 of 2017 which was dismissed on 7th December, 2018 with findings of adequate public participation and proper route selection. The 4th respondent detailed the ESIA process and the EIA licence granted by NEMA. The court first overruled the preliminary objection, holding that section 108(1) of the Wildlife Conservation and Management Act gave the petitioner locus standi and the court jurisdiction, and that the petition lay against an unincorporated body as a 'person'. On the merits, applying the conservatory order principles in Munya and related authorities, the court found no prima facie case: the decision documents relied on were unsigned and incapable of suspension, and the evidence showed extensive consultation, route option analysis and mitigation measures. Certification was refused as the issues were neither novel nor complex. The application was dismissed with costs in the cause.

Key legal issues

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01

Jurisdiction and locus standi under section 108(1) WCM Act

Holding

The preliminary objection failed wholly; the petitioner has locus standi and the court has jurisdiction, including over an unincorporated body as 'person'

Reasoning

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.

p. 5
02

Whether conservatory orders should issue

Holding

No prima facie case was established; the application for conservatory orders was refused

Reasoning

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.

p. 7
03

Certification under Article 165(4) of the Constitution

Holding

The petition raises no substantial question of law warranting a bench of three or five judges

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 18th October, 2016 is dismissed with costs to be in the cause
  2. 2.The 1st and 2nd respondents' preliminary objection is dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1), 2(1), 2(2), 3(1), 10, 22, 23, 27, 42, 47, 69, 70, 71, 73, 75, 165(4), 232, 260
  • Wildlife Conservation and Management Act, 2013Sections 4, 8, 8(2), 26, 106(1), 108, 108(1), 4th Schedule
  • Fair Administrative Action Act, 2015
  • Statutory Instruments Act
  • Environmental Management and Co-ordination Act, No. 8 of 1999
  • Environment and Land Court Act, 2011Section 21(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 5(b), 23
  • Code of Governance for State Corporations (Mwongozo)

Cases cited (13)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 others
    [2014] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors
    (1969) EA 696
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Kevin K. Mwiti & Others v Kenya School of Law & Others
    [2015] eKLR
  • Kenya Association of Manufacturers & 2 others v Cabinet Secretary Ministry of Environment and Natural Resources & 3 others
    [2017] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Sir Chunilal V. Mehta and Sons Ltd. v Century Spinning and Manufacturing Co. Ltd.
    AIR 1962 SC 1314
  • Okiya Omtatah Okoiti & another v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 3 others
    Nairobi Civil Application No. 3 of 2015 (UR 3/2015) [2015] eKLR
  • Okiya Omtatah Okoiti & another v Anne Waiguru, Cabinet Secretary, Devolution and Planning & 3 others
    [2017] eKLR
  • Okiya Omtatah Okoiti and another v President Uhuru Muigai Kenyatta and 4 others, Petition No. 531 of 2015
  • Okiya Omtatah Okoiti and another v National Environment Management Authority and 7 others, NET Appeal No. 192 of 2016
  • Okiya Omtatah Okoiti and another v National Environment Management Authority and 8 others, NET Appeal No. 200 of 2017
Jurisdiction invoked
Section 108(1) of the Wildlife Conservation and Management Act read with Articles 22, 23 and 70 of the Constitution

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, "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.