CASE REVIEW: CONSERVANCIES ON UNREGISTERED LAND
1.0 Background/Brief facts of the case
The petitioners, residents of Merti Sub-County in Isiolo County, challenged the establishment of community conservancies on their unregistered community land. They alleged that the Northern Rangelands Trust (1st Respondent) and other parties had unlawfully created and managed conservancies without proper public participation, in violation of constitutional provisions on land ownership, environmental management, and community rights. The petitioners argued that the 2nd and 8th Respondents, who were statutorily mandated to oversee community land registration, had failed in their duties, allowing the encroachment and establishment of conservancies in violation of the law.
2.0 Issues for determination
- Whether the petitioners had the requisite locus standi to institute the petition.
- Whether the petition met the constitutional threshold.
- Whether the establishment of conservancies was done in breach of constitutional provisions and statutory laws.
- Whether the respondents violated the petitioners’ constitutional rights, including the right to property and public participation.
- Whether the court should grant the requested constitutional remedies.
3.0 Analysis of Findings
1. Whether the Petitioners had Locus Standi to Institute the Petition
The petitioners' asserted that they had a direct interest in the unregistered community land as members of the indigenous pastoralist community residing in Chari and Cherab wards. They relied on Articles 22, 40, and 63 of the Constitution, which protect land rights and allow individuals or groups to seek redress for constitutional violations. On the other hand, the respondents contended that the petitioners failed to establish a direct link between the alleged constitutional violations and their personal interests. They argued that the claim was speculative and lacked concrete evidence. The court ruled that the petitioners had locus standi, emphasizing that their collective and communal interest in the land gave them the right to sue. The court found that the conservancies directly affected their land rights and economic activities and therefore Petitioners had judicial standing.
2. Whether the Petition Met the Constitutional Threshold
The petitioners contended that their petition met the required legal precision as established in Anarita Karimi Njeru v Republic (1979) eKLR, as it clearly outlined the constitutional violations, statutory breaches, and supporting evidence. They relied on Rule 10 of the Mutunga Rules, which sets out the requirements for constitutional petitions. On the other hand, the respondents argued that the petition was vague, lacked specificity, and failed to provide a clear evidentiary link between the alleged violations and the respondents’ actions. The court held that the petition met the constitutional threshold as it was drafted with reasonable precision, cited specific constitutional provisions, and was supported by affidavit evidence and documentation.
3. Whether the Establishment of Conservancies Violated the Law
The petitioners claimed that the conservancies were established without public participation, violating Articles 10 and 69 of the Constitution, the Community Land Act, and the Wildlife Conservation and Management Act. They also alleged that the conservancies encroached on their grazing lands, burial sites, and water sources. The respondents maintained that public participation was conducted and that the conservancies were formed with community involvement. They argued that the conservancies promoted environmental conservation and economic benefits. The court found that the conservancies were established unlawfully, as there was no adequate public participation. The court ruled that compliance with public participation requirements is mandatory in land governance and environmental conservation matters.
4. Whether the Petitioners' Constitutional Rights Were Violated
The petitioners alleged violations of their right to property (Article 40), right to a clean and healthy environment (Article 42), and right to fair administrative action (Article 47). They argued that the conservancies restricted their land access, disrupted their livelihoods, and were imposed without their consent. The respondents denied any rights violations, arguing that the petitioners had equal opportunities to participate in the conservancies. They maintained that the land remained unregistered and that the conservancies were community-driven initiatives. The court ruled that the petitioners’ rights had been violated, particularly their property rights and the right to public participation. The court emphasized that unregistered community land is protected under Article 63 of the Constitution and that public participation is a fundamental governance principle.
5. Whether the Armed Rangers Operating in the Conservancies Were Legal
The petitioners claimed that the armed rangers deployed in the conservancies were illegal and posed security threats. They argued that private entities could not operate armed security forces without statutory authorization. The 1st respondent argued that the rangers were part of the National Police Reserve (NPR) and operated lawfully under the supervision of the Inspector General of Police. The court found that the armed rangers were illegally deployed, as no evidence was provided to prove that they were properly authorized by the Inspector General of Police. The court declared their presence unconstitutional and ordered their withdrawal.
4.0 Court's determination
The court ruled in favor of the petitioners and issued the following key orders: Declared the conservancies unconstitutional due to lack of public participation.
Prohibited the respondents from establishing conservancies on unregistered community land.
Ordered the removal of armed rangers from the conservancies.
Directed the government to facilitate community land registration under the Community Land Act.
5.0 Conclusion
The above recent landmark ruling is a wake-up call for businesses operating in community land and environmental conservation sectors. The court declared conservancy operations unconstitutional due to lack of public participation, unlawful land use, and failure to comply with legal frameworks including those concerned with proper stewardship of our environment.
