Microsoft Word - Casebook on Environmental law

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE No. 2059 OF 1996

ABDEKADIR SHEIK HASSAN & 4 OTHERS............... APPLICANT
VERSUS
KENYA WILDLIFE SERVICE................................ RESPONDENT

BEFORE: THE HON. JUDGE MR. G.P MBITO

Constitutional Law: Who owns the flora and fauna in Kenya?
Whether a statutory body such as the respondents had ownership
rights over flora and fauna

This was an application by private citizens seeking a temporary injunction restraining the
defendants from removing an animal called “the Hirola” from its natural habitat in Arwale Tsavo
National Park.

The main ground was that, the animal was a gift to the people of the locality and should be left to
live in its natural habitat. The defendant argued that, the injunction if issued would be stopping
them from carrying their express statutory mandate.

HELD:

1. The constitution of Kenya only excludes minerals and oils from ownership by land
   owners.


2. Under the customary law, those entitled to use the land are also entitled to the fruits there
   of which include flora and fauna unless this has been changed by law.


3. The Wildlife Act only entitles the defendant to conserve wild animals in their natural
   state and not to transfer them.


4. If the animals are conserved at their natural habitat, they would still be available for
   translocation if the case is to be found misconceived.


5. The respondent would be acting outside its powers if it were to remove any animals from
   their natural habitat.

Application for injunction granted.