Environmental Case Law Index

The court considered a petition to have a decision handed down by the Ministry of Devolution and Planning quashed and declared unconstitutional. 

The petitioners were Embobut Forest dwellers which shared a common border with five other clans. The petitioners alleged that they were genuine evictees and internally displaced persons who were aggrieved, ignored and not compensated when the respondents harmonized their registers.

The petitioners argued that their constitutional right to a clean and healthy environment had been infringed and that they had not been appropriately compensated. They alleged that they ought to have been compensated like any other squatters and that they had been discriminated against. 

The court found that the arguments put forward by the petitioners were non-justiciable. Justiciability refers to the types of matters the court can adjudicate on. In this instance, the court found that the harmonization of the register of the petitioners was a political question, and not a legal one. 

The court found that the purpose of compensating those who were in illegal occupation of the forest was to give effect to their right to property. However, the court found that the petitioners did not demonstrate that they were part of those who illegally occupied the land, and thus could not be compensated. Further, the court found that the petitioners did not demonstrate that any of the constitutional provisions had been violated, thus their petition was without substance.

The matter was an appeal from a conviction on the charge of being found in possession of wildlife trophies in contravention of s95 and 92 of the Wildlife Conservation and Management Act of 2013 (“Act”).

The appellant argued that the trial court overlooked the inconsistencies and contradictions in evidence and applied the doctrine constructive possession of the wildlife trophies erroneously.

The court established that evidence must be led to prove the fact of possession and the contradiction in witnesses’ testimonies put the question of possession in doubt. Court also found that the doctrine of recent possession was erroneously applied.

The court considered s92 and established that it does not create an offence in so far as offences in respect of endangered species or their trophies are concerned but only a punishment and as such the suspect could not be tried under it. Further, that the proper provision that created an offence in respect to wildlife trophies and trophies generally was s95 and that suspects should be charged under the same until the Act is amended.

The conviction was quashed and the appeal was allowed on account of failure of the prosecution to prove the case to the required standard.

This was an application for judicial review wherein the applicants sought orders to quash the respondents’ decision to place an advertisement in the newspapers calling for applications for concessions in state forests, prohibition orders to prevent the respondent from actualizing any matters concerning the advertisement. They also sought an order of mandamus to compel the respondent to comply with constitutional provisions on the protection of forests.

The respondent argued that they had taken the action in accordance with s 37(2) of the Forest Act.

The court determined whether the respondent had complied with the law in making the decision.

The court interpreted s 37(2) and established that before the board takes a decision to place an advertisement for concessions, it must be satisfied that the forests will be efficiently managed through such concession or license and for the board to be satisfied, factors such as public views and opinion, should be taken into account before the decision is made.

The court found that the respondent had not made provision for public participation, yet it was constitutionally bound to do so and thus failed to comply with the law.

Accordingly, the court granted the orders sought by the applicants.

This was an application for a temporary injunction to restrain the defendant from cutting down trees, felling logs or dealing in whatever manner with the plaintiff’s land.

The plaintiff contended that the respondent had committed trespass and malicious damage to the property on his land. On the other hand, the defendant argued that it was not the registered owner of the land but had entered into an agreement with the government to harvest forest produce in government forests in exchange for royalties.

The court found that the plaintiff was the registered owner of the land and that the defendant lacked the capacity to question the validity of the plaintiff’s ownership. 

It was further held that the plaintiff had established the requirements for an injunction. The plaintiff established a prima facie case with a likelihood of success against the defendant. Further, that if the relief was not granted the plaintiff would suffer irreparable loss as all the trees on his land would be cut down.  

Accordingly, the application succeeded with costs to the respondents. The court issued the injunction and directed the applicant to mark out the boundaries of his land so that the respondent would excluded from its operations. 

This was a review against the respondent’s decisions to set apart land on Funzi Island and grant registration titles to Pati Limited. The applicant prayed for prohibition and certiorari orders since the respondent made the decisions in excess of its jurisdiction and power. 

The applicant argued that the land in dispute was forest land, and that no allotment could have legally taken place on the land unless there was a declaration that it had ceased to be forest land. The court found that when the proceedings commenced, it was assumed that the land was trust land, and despite argument, the applicant failed to adduce enough evidence to prove that the land was forest land. The land was thus declared to be trust land.

Secondly on the applicant’s disputed locus standi, the court found that the applicant’s properties were separated by about 200 metres from the disputed property. Further, the court found that even if the land was forest land, only the authorities in the Ministry in charge of the forest lands had the capacity to defend it. Consequently, it was held that the applicants lacked the requisite locus standi.

Finally, the court found that the respondent complied with the requirements in the Trust Act and dismissed the orders prayed for.

Accordingly, the application was dismissed.

The matter dealt with a petition of appeal arising out of a dispute over the destruction of the respondent’s crops by wild animals that entered the respondent’s farm.

The court considered whether s3A(l) of the Wildlife Act, imposed liability on the appellant to compensate for loss or destruction of crop. The court held that s3A(l) imposed a duty on the appellant to protect the crops from destruction by wildlife and compensate for destruction.

The court considered whether there is a common law obligation under the principle in Donoghue v Stevenson 1932 SC (HL) 31 and the rule in Ryland v Fletcher [1866] LR 1Ex 265 on the appellant to compensate for damage or destruction caused by wildlife. The court found that neither were applicable to the present matter based on the facts of the case. 

The court considered whether damage caused by migrating wildlife is an act of God. Consideration must be given to the question whether the event was reasonably foreseeable. Migration of wildlife is an annual occurrence thus, foreseeable and so not an act of God.

The court considered whether the government ought to be liable for destruction by wildlife. Factually, the appellant had the duty of control of the wildlife because of s3A of the Wildlife Act and so the court held that liability for the damage fell on the appellant.  

Court of Appeal judgment upheld.

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.