GPR3210 PROPERTY LAW-GROUP 11B

UNIVERSITY OF NAIROBI

 GPR 3210: PROPERTY LAW

 2023/2024 ACADEMIC YEAR

 GROUPWORK ASSIGNMENT
GPR3210 PROPERTY LAW-GROUP 11B

GROUP MEMBERS:

Kodero Clean G34/144960/2022

Juma David Otieno G34/145004/2022

Rozina Khayecha Obongita G34/145093/2022

Felix Okoth Aywaya G34/145213/2022

Beryl Ongoro Martha G34/145262/2022

Joan Nyagoha Angogo G34/145334/2022

GPR 3210 - PROPERTY LAW GROUP
ASSIGNMENT
 QUESTION 11

 The Government recently launched reforms to the process of compensation of those

injured by wildlife. When the news was reported in the media, your parents requested
for your opinion as to whether conservation is a viable land use in Kenya. Prepare a
response to engage them, taking into account that your father is an agricultural expert
while your mother works for the African Wildlife Foundation. They are keen to see
whether the answer you give them demonstrates that the investment they have made in
your study of law at the University of Nairobi has been value for money. Bolster your
arguments with both legal provisions and relevant case law.
ANSWER

 There are several factors that come to play, when evaluating the viability of
conservation as a land use in Kenya. The various factors must be critically weighed and
considered in order to arrive at an elaborate conclusion, since both agriculture and
wildlife conservation play crucial roles in Kenya's socio-economic landscape, thus the
harmony between these sectors is imperative for sustainability as a land use principle as
outlined in Article 60 of the Constitution of Kenya 2010 and sustainable development
(the development which meets the needs of the present without compromising the
future generations to meet their own needs.)
The legal framework supporting wildlife
conservation in Kenya

 The Constitution of Kenya, in Article 69, mandates the

state to ensure sustainable exploitation, utilization,
management, and conservation of the environment and
natural resources. The Act, recognizes wildlife as part of
Kenya's national heritage and mandates the state to
ensure its sustainable management and conservation.
The legal framework supporting wildlife
conservation in Kenya Cont…
 The Wildlife Conservation and Management Act (2013) in Section 7, provide a
comprehensive legal framework for the protection and management of wildlife and
their habitats. The Act delineates the rights and responsibilities of landowners
regarding wildlife conservation.

 The Environmental Management and Coordination Act (1999) in Section 42 to 56

mandates the protection and conservation of the environment, including wildlife
habitats, thereby influencing land use decisions.

 The Constitution of Kenya in Article 40, recognizes the right to property and imposes
a duty on the state to ensure sustainable utilization and management of natural
resources.
The legal framework supporting wildlife
conservation in Kenya Cont…
 On Property Rights Legislation one can say that while Kenya's property law
primarily focuses on land tenure and ownership rights, statutes like the Land
Act (2012) in Section 19 mandates the sustainable conserve of land based
resources including the critical ecosystem and habitats. The Community
Land Act (2016) in Section 20, recognize the rights of communities,
including indigenous groups, to own and manage land, including areas
designated for conservation purposes. It also mandates the sustainable
conserve of land based resources including the critical ecosystem and habitats
Policy Framework

 National Conservation Strategies: The various national policies and strategies,

such as the National Wildlife Conservation and Management Strategy and the Kenya
Vision 2030, which emphasize the integration of wildlife conservation into land use
planning and development.

 The National Land Policy (2009) emphasizes the need for sustainable land use
practices, including the integration of conservation principles into land management
strategies.

 The Community Land Act (2016) recognizes the rights of communities to own,
manage, and conserve their land, fostering community-based conservation
initiatives.
Policy Framework

 Community-Based Conservation: Policy initiatives

promote community involvement in wildlife conservation

through mechanisms such as conservancies and community

wildlife sanctuaries, empowering local communities to

benefit from sustainable wildlife management practices.

Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR

 Facts

 It is alleged that between March and June 2000, wild

animals from the Maasai Mara Game Reserve entered into
one of the respondent’s (who were the applicants at the
High Court) farm situated at Olkirianie Location, Ololunga
Division, Narok District and damaged several crops valued
at Kshs 64,160,130.00.
Case Law: Kenya Wildlife Service v Rift
Valley Agricultural Contractors Limited
[2018] eKLR Cont…
 Issues for Determination

 The following issues crystallize for determination by this Court:

 1. Whether Section 3A(l) of the Wildlife (Conservation and Management) Act, Chapter 376 of the
Laws of Kenya as amended, and any breach thereof of the said Section imposes a liability on the
part of the appellant, the Kenya Wildlife Service, to compensate any person for loss or
destruction to crops caused by wildlife?
 2. Whether there is a common law obligation under the principle in Donoghue v. Stevenson and
the rule in Ryland v. Fletcher on the part of Kenya Wildlife Service to compensate any person for
damage or destruction caused by wildlife?

 3. Whether damage caused by migrating wildlife is an act of God and the loss lies where it falls?

 4. Whether the Government ought to be liable for destruction by wildlife?

 5. Whether the respondent is liable for contributory negligence?

Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR
Cont…
 Held

 On whether Section 3A (l) of the Wildlife (Conservation and Management) Act,

as amended, and any breach thereof of the said Section imposes a liability on
the part of the appellant?

 The Wildlife Act provides under Section 3A, stipulates that: “The functions of
the Service shall be to— …; (c) manage National Parks and National Reserves;
… (l) render services to the farming and ranching communities in Kenya
necessary for the protection of agriculture and animal husbandry against
destruction by wildlife.”
Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR
Cont…
 This provision is unequivocal that the appellant, the Kenya Wildlife Service (KWS) has the
obligation of rendering services to communities in Kenya, such as would be necessary for the
protection of agriculture and animal farming against destruction by wildlife. It has been
urged by the appellant that this provision has nothing to do with destruction of crops. The
ordinary meaning the term ‘agriculture’ according to the Merriam-Webster Online dictionary
is: “ [T]he science, art, or practice of cultivating the soil, producing crops, and raising
livestock and in varying degrees the preparation and marketing of the resulting products.”

 It cannot be gainsaid that the services to be rendered by the appellant pursuant to this
provision are to ensure crops cultivated, as well as animals reared on land are protected
from destruction by wildlife. Any other interpretation of this provision would be grossly
narrow and simplistic.
Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR
Cont…
 Having said that, this Court has to determine whether the duty to protect the
crops and animals reared on the land is accompanied by a corresponding duty
to compensate for destruction to crops, occasioned by wildlife.

 Paul Ward BL, in his paper, “Liability in negligence of statutory bodies for
breach of statutory duty,” presented on 14th December, 2013 alludes to the
challenge that Courts have had to grapple with in trying to superimpose on a
statutory duty a common law remedy. That notwithstanding, he elucidates
that: “ [I]tis clearly established in all common law jurisdictions that public
bodies can be held liable in negligence for the negligent exercise of statutory
duties and powers.”
Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR
Cont…
 He cites the decision of the House of Lords in X (Minors) and others v. Bedford hire
L.A, [1995] 3 ALL E.R. 353, in which the Court held that a breach of statutory duty
could only be maintained upon an interpretation of the statute that intended to
confer a common law right of action. He observes thus: “A simple claim of a breach
of the statute could not be maintained on its own. As statutes rarely specifically
confer a common law right of action on individuals, a common law right of action,
however, could be inferred in the interpretation of the statute if the statute was
intended to protect a particular class of person. A second claim of the negligent or
careless performance of a statutory duty or power could be maintained provided the
plaintiff could establish the first claim of breach of statutory duty.”
Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR
Cont…
 In light of the foregoing, we are persuaded that though there is no obligation
expressly imposed on the appellant under the Wildlife Act to compensate for
destruction of crops by wildlife, the statutory duty imposed under Section
3A(l) is actionable under common law. 36. It would therefore be liable under
the tort of negligence despite the lack of an express provision of statute to
that effect. Under this tort four elements must be proven. The Global CCS
Institute, University College London, in its publication Legal liability and
carbon capture and storage: a comparative perspective (2014) describes those
four elements in the following terms: “Four key elements predominate in
establishing a negligence claim - a duty of care, a breach of that duty,
causation, and damage. A defendant must owe a 'duty of care' to the person
bringing the claim, in the sense that they fell within a class of interests which
the law considers should be protected. … There is a breach of that duty
involving a failure to take reasonable care. Causation must be proved, and
the type of damage alleged must be protected by the law.
Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR
Cont…
 In the present matter Section 3A without a doubt imposes a duty on the appellant to
protect the crops from destruction by wildlife. In addition, the respondents have
demonstrated to this Court that their crops were destroyed by migrating wildlife
hence, the duty imposed by Section 3A is towards persons such as the respondent.
They have also demonstrated that the loss they suffered was a direct result of the
migration of wildlife.
 Counsel for the appellant urged that the game reserve in question was not under the
management of the appellant but rather it was managed by Narok County
Government hence they would be liable for destruction of crops by wildlife. A look
at Article 62 of the Constitution brings to bear that national parks and game reserves
are not among the land that vests in county governments. In the same vein,
management of national parks and game reserves is not a function that has been
devolved to the county government under the Fourth Schedule to the Constitution.
We opine that this Court is not privy to the arrangement between the appellant and
the Narok County Government (which is not a party in this appeal) concerning the
management of the game reserve in question. However, it behooves us to clarify
that where a statutory obligation is imposed on a person, such obligation cannot be
abdicated by that person even if it is expressly permissible under the
Case Law: Kenya Wildlife Service v Rift Valley
Agricultural Contractors Limited [2018] eKLR
Cont…
 Constitution or statute to do so. The express provisions imposing the obligation will trump any

agreement, whether contractual or not, purporting to relinquish such obligation.

 The appellant’s obligations under Section 3A (l) could not and were not abdicated in favour of, or

transferred to Narok County Government. Without belaboring this point any further we find that

breach of Section 3A (l) imposes a liability on the appellant to compensate for destruction of

crops by wildlife

 In the case of Tana River Delta Case (Abdalla Rhova Hiribae & 3 others v Attorney General &

7 others [2013] eKLR) This case involved a legal challenge to a large-scale development project

in the Tana River Delta, a critical wildlife habitat. The court ruled in favor of conservation

groups, emphasizing the need to balance development with conservation and safeguarding the

rights of affected communities.

Case Law: Abdalla Rhova Hiribae & 3 others v
Attorney General & 7 others [2013] eKLR

 In the case of Tana River Delta Case (Abdalla Rhova Hiribae & 3 others v

Attorney General & 7 others [2013] eKLR) This case involved a legal

challenge to a large-scale development project in the Tana River Delta, a

critical wildlife habitat. The court ruled in favor of conservation groups,

emphasizing the need to balance development with conservation and

safeguarding the rights of affected communities.

Case law: Ogiek Peoples v. Republic of
Kenya (2017)

 In the case of Ogiek Peoples v. Republic of Kenya (2017). In this case, the

African Commission on Human and Peoples' Rights held that the eviction of

the Ogiek community from the Mau Forest violated their right to property and

culture. The ruling underscored the importance of indigenous land rights and

conservation efforts compatible with indigenous livelihoods.

Challenges on wildlife conservation

 The following are major challenges on the wildlife conservancy and

agriculture as uses of land:

 Balancing private property rights with conservation objectives poses a

significant challenge, particularly in cases of conflicting land uses.

 Ensuring effective enforcement of conservation laws and regulations remains

a persistent challenge due to limited resources and capacity constraints.

 Addressing land tenure issues and resolving conflicts between indigenous

communities, private landowners, and conservation agencies is essential for
promoting sustainable land use practices.
Challenges on wildlife conservation
Cont…
 Land Tenure Issues: Conflicts may arise between traditional land tenure systems
and conservation objectives, necessitating clear legal frameworks for resolving
disputes and recognizing indigenous land rights.

 Human-Wildlife Conflict: Balancing wildlife conservation with the protection of

human livelihoods and property rights in areas prone to human-wildlife conflict
requires nuanced legal and policy interventions.

 Enforcement and Compliance: Effective enforcement of wildlife conservation

laws and regulations is essential to combat poaching, illegal hunting, and habitat
destruction, necessitating robust legal mechanisms and institutional capacity.
Benefits of Conservancy of wildlife
 Economic Benefits
 Conservation can contribute significantly to Kenya's economy through wildlife
tourism, generating revenue, creating jobs, and supporting local
communities. Tourism, largely driven by Kenya's rich wildlife heritage, is a
major revenue earner for the country, generating foreign exchange, creating
jobs, and supporting local communities. The African Wildlife Foundation,
actively promotes sustainable tourism initiatives that benefit both people and
wildlife.
 Ecosystem Services
 Protecting natural habitats and biodiversity provides essential ecosystem
services such as soil fertility, water regulation, and climate resilience, which
are vital for sustainable land use practices, including agriculture.
 Social and Cultural Importance
 Conservation is integral to preserving Kenya's cultural heritage and traditional
land use practices, ensuring the well-being of indigenous communities and
future generations.
Conclusion
 Conservation is a viable and essential land use in Kenya under property law.
Integrating conservation into land use planning requires robust legal frameworks,
effective policy measures, and equitable mechanisms for resolving conflicts and
promoting sustainable development which is a key principle in land use.

 Both agriculture and conservation are vital land uses in Kenya, and fostering synergy
between them through sound legal and policy measures is key to ensuring sustainable
development, environmental management, economic prosperity, and social equity.
This can be achieved by integrating conservation into land use planning and
development.

 Conservation isn't just about preserving wildlife; it's about safeguarding ecosystem
services vital for agriculture itself. Healthy ecosystems regulate climate, maintain
soil fertility, and ensure water security, all essential for agricultural productivity.
Neglecting conservation could lead to long-term environmental degradation, posing