Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissednot_stated_in_judgment· [2024] KEELC 5677 (KLR)

Dominic & 3 others v County Government of Narok & 4 others (Environment and Land Constitutional Petition E004 of 2023) [2024] KEELC 5677 (KLR)

Environment and Land Court
1 August 2024
16,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~64 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court upheld the Maasai Mara management plans, ruling that public participation was sufficient and dismissing the petition challenging how they were adopted.

What this practically means

#

Executive summary

#
Four residents of Narok County, suing on behalf of the people of Narok County, petitioned against the formulation, adoption and gazettement of the Maasai Mara National Reserve Management Plan 2023-2033, the Greater Mara Eco-System Management Plan and the Narok County Physical and Land Use Development Plan 2023-2033. They alleged the respondents failed to conduct meaningful, effective and qualitative public participation contrary to Articles 10, 35, 174(c) and 196 of the Constitution, Sections 87 and 115 of the County Governments Act and Sections 41(2) and 31(1) of the Wildlife Conservation and Management Act (WCMA), locked out the public gallery of the County Assembly, failed to consult the Narok County Wildlife Conservation Committee, and sought certiorari against Gazette Notice No. 2645 of 2nd March 2023 and mandamus for fresh participation. All respondents denied the claims, contending participation was continuous, wide and effective, and that Section 44 and the Fourth Schedule of the WCMA do not apply to a national reserve. The court upheld the petitioners' standing under Article 22 but found that Maasai Mara is a national reserve under the Eleventh Schedule of the WCMA whose management vests in the county government under Section 35(2); the Fourth Schedule and Section 34 were inapplicable, though the respondents should at the very least have complied with the Fifth Schedule. The court found participation spanned from 2006 and 2020, was evidenced in the plans' appendices and the Joint Committee report of 21st February 2023, and that the allegations of a dysfunctional email, denial of access to the plans and the locked public gallery were unsubstantiated. The petition was dismissed with each party bearing its own costs.

Key legal issues

#
01

Locus standi of the petitioners

Holding

The petitioners, as residents of Narok County suing on behalf of its people, had standing under Article 22 of the Constitution

Reasoning

The court adopted the Court of Appeal's analysis in Mumo Matemu and Otolo Margaret Kanini, holding that the constitutional landscape has transformed standing, that the petition stated it was brought on behalf of the people of Narok County, and that the bringing of the petition was not shown to be in bad faith. Articles 22 and 258 permit any person to institute proceedings claiming violation of the Constitution.

p. 20
02

Whether Section 44 and the Fourth Schedule of the WCMA applied to the management plans

Holding

They did not; Maasai Mara is a national reserve, not a national park, and Section 44(3) and the Fourth Schedule concern national parks, marine protected areas, conservancies and sanctuaries

Reasoning

The court examined the definitions of national park and national reserve, noted Maasai Mara is listed in the Eleventh Schedule as a national reserve managed by the county government under Section 35(2), and held that Section 34 (variation of boundaries) and the Fourth Schedule (public consultation under Section 34) were inapplicable. The gazette notices were nonetheless made pursuant to Section 44(3).

p. 24
03

Whether public participation was effective and meaningful

Holding

Yes; the process began in 2006 and 2020 respectively, included ward-level forums, stakeholder workshops, newspaper notices and committee reports, and the allegations of a dysfunctional email and locked public gallery were unsubstantiated

Reasoning

Applying the Mui Coal Basin principles, the court held public participation must be effective and show intentional inclusivity, not incorporate every individual's views. The plans' appendices and the Joint Committee report of 21st February 2023 evidenced consultation and consideration of views; the petitioners produced no evidence they requested and were denied the plans.

p. 29
04

Applicable standards where no specific statutory framework exists for public participation on a national reserve

Holding

In the absence of a specific framework, the respondents should at the very least have complied with the Fifth Schedule of the WCMA, which requires a report detailing participation of neighbouring communities

Reasoning

The court found the gazette notices were published under Section 44(3), which does not expressly cover national reserves, and that no legislative framework guided participation for reserves. It held the Fifth Schedule, setting out minimum contents of a management plan including the participation report and anticipated benefits, provided the applicable baseline, which the plans substantially met.

p. 24

Legal principles established

#
  • Where a national reserve is concerned and there is no specific legislative framework prescribing the mode of public participation, the agency must at the very least comply with the Fifth Schedule of the WCMA, including a report detailing the participation of neighbouring communities
  • The management of a national reserve vests in the relevant county government under Section 35(2) of the WCMA
  • Locus standi under the 2010 Constitution is liberal; any person may sue under Articles 22 and 258 on their own behalf, on behalf of others or in the public interest
  • The test for adequacy of public participation is one of effectiveness, not compliance with a prescribed litmus test, and public participation is a continuous obligation

Court orders

#
  1. 1.The amended petition dated 6th July, 2023 is dismissed
  2. 2.Each party to bear its own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 1(2), 6(2), 10, 22, 258, 35, 174(c), 183, 185, 189, 196, 232, Fourth Schedule
  • Wildlife Conservation and Management Act, Cap 376Sections 1, 2, 4(b) and (d), 5(5), 7(1), 18, 19, 31(1), 34, 35(2), 37, 41(2), 44(2), (3) and (5), Fourth, Fifth and Eleventh Schedules
  • County Governments Act, Cap 265Sections 5, 87, 114, 115(1) and (2)
  • Access to Information Act, Cap 7Mgeneral
  • Statutory Instruments Act, Cap 2Ageneral
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)general

Cases cited (19)

  • Mugo & 14 Others versus Matiang’i & Another; Independent Electoral and Boundary Commission of Kenya & 19 Others (Interested Party)
    Constitutional Petition 4 of 2019 [2022] KEHC 158 (KLR)
  • Okiya Omtata versus Kenya Revenue Authority
    [2018] eKLR
  • Simeon Kioko Kitheka & 2 Others versus County Government of Machakos & 3 Others
    [2016] eKLR
  • Doctors for Life International versus Speaker of the National Assembly & Others
    (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC)
  • Republic versus The Attorney General & Another Ex parte Hon. Francis Chachu Ganya
    JR Misc. Appl. No. 374 of 2012
  • Katiba Institute versus Presidents Delivery Unit & 3 Others
    [2017] eKLR
  • Kiambu County Government & 3 Others versus Robert N. Gakuru & Others
    [2017] eKLR
  • Were Samwel & 14 Others versus Attorney General & 2 Others
    [2017] eKLR
  • Olum & Another versus Attorney General of Uganda
    [2002] 2 EA 508
  • Khelef Khalifa & 2 Others versus Independent Electoral and Boundaries Commission and Another
    [2017] eKLR
  • Diani Business Welfare Association and Others versus County Government of Kwale
    [2015] eKLR
  • Law Society of Kenya versus Attorney General & 3 Others; Katiba Institute & 6 Others (Interested Parties)
    Environment & Land Petition E001 of 2023 [2023] KEELC 20583 (KLR)
  • Nubian Rights Forum & 2 Others versus Attorney General & 6 Others; Child Welfare Society & 9 Others (Interested Parties)
    [2020] eKLR
  • Mui Coal Basin Local Community & 15 Others versus Permanent Secretary Ministry of Energy & 17 Others
    Constitutional Petition no 305 of 2012 [2015] eKLR
  • Meru Bar Wines & Spirits Owners Self Help Group versus County Government of Meru
    [2014] eKLR
  • Nairobi Metropolitan Psv Saccos Union Limited & 25 Others versus County of Nairobi Government & 3 Others
    [2013] eKLR
  • Otolo Margaret Kanini & 16 Others versus Attorney General & 4 Others
    [2022] eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    Nairobi Civil Appeal No. 290 of 2012 (2013) eKLR
  • Minister of Health and another v New Clicks South Africa (Pty) Ltd and Others
    2006 (2) SA 311 (CC)
Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights and the Constitution) read with the constitutional petition jurisdiction of the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Dominic & 3 others v County Government of Narok & 4 others (Environment and Land Constitutional Petition E004 of 2023) [2024] KEELC 5677 (KLR)", Case Analysis (2024). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5677/eng@2024-08-01

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