Mwakireti & 4 others v Kenya Wildlife Service & 6 others; Washumbu (DA) Company Limited & 3 others (Interested Parties) (Petition E009 of 2024) (Environment and Land) [2025] KEELC 3746 (KLR)
The bottom line
#The Environment and Land Court in Voi dismissed the Kasighau Community's challenge to KWS fencing, finding public participation was adequate and no rights violation was proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction despite the doctrine of constitutional avoidance and statutory dispute resolution mechanisms
The court has jurisdiction because the reliefs sought, including declarations on violation of fundamental rights, cannot be granted by the proposed alternative forums.
Citing the Supreme Court decision in Nicholus v Attorney General, the court held that exhaustion of alternative forums is encouraged only where such forum is accessible, affordable, timely and effective. Since the Petitioners sought constitutional remedies that alternative forums cannot grant, the doctrine of constitutional avoidance could not bar the petition.
Whether there was adequate public participation prior to the fencing exercise
Public participation was adequate; community engagement forums were held with minutes tendered and undisputed.
The court adopted the Mui Coal Basin principles, including the effectiveness test and the requirement of information dissemination and intentional inclusivity. KWS produced minutes of forums held on 3rd August 2024 and 6th September 2024 with substantial community attendance; these were not disputed and no evidence showed the Petitioners were excluded.
Whether the Petitioners' constitutional rights were violated
No violation established; the Petitioners failed to prove their case on a balance of probabilities.
Despite invoking Articles 10, 27, 40, 44, 56, 63 and 69, the Petitioners tendered no evidential material demonstrating that the fencing was illegal, unlawful or unconstitutional, that Kasighau Hill would be fenced off, or that their access to water, grazing or shrines would be denied.
Whether the Petitioners are entitled to the reliefs sought, including allocation of the four ranches
Not entitled to any relief; the petition not having been proved, all reliefs fail.
Having found no proven violation and failure of proof on a balance of probabilities, the court held the Petitioners could not sustain any of the reliefs, including the order for allocation of the four uncommitted ranches to the Kasighau Council of Elders.
Legal principles established
#- Alternative dispute resolution forums must be accessible, affordable, timely and effective before constitutional-avoidance objections prevail; a court retains jurisdiction where the reliefs sought cannot be granted by the alternative forum
- The test for public participation is one of effectiveness, not a litmus test; there must be access to and dissemination of relevant information and intentional inclusivity
- Undisputed minutes of community engagement forums showing attendance and support constitute sufficient evidence of adequate public participation
Court orders
#- 1.The Petition dated 1st October 2024 is dismissed
- 2.Each party to bear own costs of the Petition
- Jurisdiction invoked
- Articles 10, 27, 40, 44, 56, 63 and 69 of the Constitution of Kenya, 2010; Article 165 court jurisdiction over constitutional petitions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwakireti & 4 others v Kenya Wildlife Service & 6 others; Washumbu (DA) Company Limited & 3 others (Interested Parties) (Petition E009 of 2024) (Environment and Land) [2025] KEELC 3746 (KLR)", Case Analysis (2025). Petition dated 1st October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3746/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.