Environmental Case Law Index

The matter required the Supreme Court’s advisory opinion in line with art 163(6) of the constitution. The reference concerned land administration and management powers of the National Land Commission versus those of the Ministry of Land, Housing and Urban Development.
The main issue for determination was whether the Supreme Court had the jurisdiction to render an advisory opinion- on the powers and functions of the National Land Commission namely, those of the Ministry of Lands, Housing & Urban Development.

The court noted that it proceeded on a case by case basis in determining whether to exercise its advisory opinion jurisdiction. It was held that the instant reference met the admissibility requirement as set out in art 163(6) of the constitution but on condition that the court shall adopt a re-framed set of issues for consideration. However, the court found it premature to render the opinion at that moment and ordered the parties to undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.

Judge Njoki SCJ dissented and held that the majority ruling was against the spirit of art 163 of the Constitution. Mainly because the questions posed were not subject of the court’s advisory opinion since they had no direct correlation with county government. 

The court considered a petition whereby the petitioner sought an order of certiorari to quash a Gazette Notice declaring his land to be forest land. The petitioner had entered into a sale agreement with the original owner of the land by which the parties agreed to a down payment upon successful application to the land control board. The Petitioner took immediate possession and contracted to pay the balance of the purchase price after the maize season. The application was made and rejected due to the Ministry of Natural Resource’s interest in the land. Subsequently, the land control board met and the petitioner’s application was granted, however, the land was transferred to the government  and marked a forest.

The petitioner argued that during the dispute, its members were harassed and evicted from their farms, with their houses being torched. 

The court found that there was no doubt that the petitioner had entered into a sale agreement. Further, the control board acted in a manner to deny the petitioner the land. The court found that based on a letter received from the Commissioner of Land, there was a clear acknowledgment of foul play in the manner in which the government came to buy the land. Further, the government had deprived the petitioner of its right to land and subjected its members to poverty. In conclusion, the court held that the land was to be placed in the name of the petitioner as it was the rightful and lawful owner. 

The court considered an application for mandamus to compel the government, the first respondent, to disclose agreements relating to the purchase of power, among others. The first respondent and Ethiopia entered into negotiations to develop a power plant. The petitioners argued that by agreeing to purchase electricity from Ethiopia, the respondents were acting in a manner that would deprive members of the affected communities of their livelihood, lifestyle and cultural heritage. 

The court considered the following: whether it had jurisdiction to intervene and address the issues; whether the rights of the petitioners had been infringed; and what the respondents’ obligations were. The court held that the subject matter of the petition was an agreement between two sovereign states and the violations of rights were transboundary, thus giving the court jurisdiction to hear the matter.

It stated that the right to life, dignity, economic and social rights were indivisible and would have an adverse impact on the petitioners’ livelihood should the power plant be developed. However, without concrete evidence, the court could not find that their rights were violated. In terms of the access to environmental information, the court held that the State was obliged to encourage public participation, which was only possible if the public had all the information. The court found that the respondents ought to have conducted an environmental impact assessment to ensure that the project would not harm the public. Thus, their right to information was infringed. Accordingly, the court granted the order of a mandamus.

The court considered an application by which the applicants sought an order declaring that their right to life had been contravened by forcible eviction and by settlement of other persons on their land. The applicants were members of the Ogiek community who had been living in East Mau Forest for decades, as food gatherers and hunters. Upon the introduction of colonial rule, the land was declared a forest, however, no land was set aside for the applicants. 

The court set out the issues as follows: whether the members of the community had recognizable rights arising from their occupation of the forest; whether in the circumstances of the case, their rights had been infringed by their eviction and allocation of other persons; and whether the settlement was ultra vires.  

The court found that the right to a livelihood did not have a definition and could be included in the right to life. Thus, their livelihood was directly dependent on forest resources to sustain their way of life. Further, the court held that the applicants were a minority group who had lost their access to land and their right to live in the forests which was key to their livelihood, thus their rights had been infringed.Finally, the court found that there were significant irregularities made during the allocation of land, thus the settlement scheme was ultra vires and the applicants were therefore entitled to the relief sought.
Accordingly, the application was upheld.