Kajiado avocado farm suffers blow in court tussle with Amboseli wildlife conservationists

The Court of Appeal in Nairobi on Friday last week sent back to the drawing board a 180-acre farm investor in a heated legal tussle with Amboseli wildlife conservationists for overlooking legal redress procedures.

KiliAvo Fresh Limited moved to the appellate court to contest a decision by the Environmental and Land Court in Kajiado that pronounced itself as not legally fit to hear and determine a judicial review case against the National Environment Tribunal (NET) which upheld the National Environmental Management Authority (NEMA)’s order to suspend its farming activities in Kajiado.

According to the appellate three-judge bench, the Kajiado court did not err when it declined to conduct the judicial review in a case decided by the NET against NEMA on the basis of an overlooked legal procedure by the farm.

“In the circumstances of this appeal, we find that the judicial review proceedings were not the route to go. No exceptional circumstance was demonstrated by the appellant as to why judicial review proceedings was the preferred mode to resolve its complaint when there was a statutorily laid down procedure,” read the judgement in part.

The three judges maintained that if the farm was aggrieved by NET in dismissing the appeal, there is an appealable act.

If it was considered that NET was demonstrably wrong, or had misdirected itself, or had acted on irrelevant considerations or failed to consider relevant factors, thereby leading to a plainly wrong outcome, the remedy provided by the Act is to appeal the decision at the High Court instead of filing judicial review proceedings.

“Instead, it filed a judicial review application. It has been emphasized many times before that aggrieved parties should strictly follow any procedures for dispute resolution that have been prescribed by the law,” read the judgement.

KiliAvo Fresh Limited has for close to 5 years fought to survive following an order by NEMA to revoke its license barely a month after issuance.

It is KiliAvo's case that NEMA issued them with an Environment Impact Assessment (EIA) licence on August 6, 2020 that was a green light indicator for operation.

But before the dust settled, through notices to show cause dated 9th and 18th September 2020, NEMA threatened to cancel their EIA licences.

The investor was aggrieved by the notices and lodged an appeal to the NET stating that NEMA had, among other things, ordered and directed it to stop any further development on the suit properties.

The notices are said to have been occasioned by various complainants who were objecting to the EIA licence on the basis that the KiliAvo Fresh Limited project was within a zoned wildlife corridor and thus violated the provisions of the Amboseli Ecosystem Management Plan (AEMP).

The notices argued that the Amboseli is a fragile ecosystem and that the local plan of the Amboseli Land Owners Conservancies Association (ALOCA) had zoned areas for conservation and livestock grazing in line with AEMP and thus the proposed project violated the provisions of the plan which had been endorsed by all stakeholders and gazetted under the Wildlife Act, 2015. They also stated that key stakeholders had not been consulted during the EIA approval process.

Further, KiliAvo avers that it conducted a successful Environmental Impact Assessment (EIA) which had been preceded by the appropriate applications and consultations with the relevant stakeholders, who were advised as to the nature, scope, and extent of the project, as well as the benefits the project sought to bring in the subject area and there were no objections.

After the approvals, the investor claims to have carried out a great financial investment that includes: fencing off the suit properties; commissioning two boreholes that had to be sunk; employing at least 300 locals; preparing the farm beds and planting the seedlings for the growing of the highest quality of organic fruits and vegetables for sale within Kenya and beyond.

The company holds that it was undertaking an integrated mixed-use farm comprising of conservation agriculture, livestock production, wildlife rangers base, and necessary farm infrastructure.

However, wildlife conservationists around Amboseli accused the farm of infringing on wildlife rights by blocking wildlife corridors, adding that the farm would use excess water for irrigation hence the wildlife will go thirsty.

The court battle has escalated and dragged in various agencies among them: the National Environment Tribunal, the Conservation Alliance, Big Life Foundation, the National Environmental Management Authority, and the County Government of Kajiado.

The 180-acre farm is located between Amboseli National Park and a series of other protected areas including the Kimana Sanctuary, Tsavo West National Park, and Chyulu Hills National Park.

It is surrounded by locally-owned conservancies where landowners - hundreds of local Maasai - earn their living from livestock and tourism.

The Court of Appeal’s decision renders operations grounded at the Kiliavo Kajiado farm.

The farm however, may once again appeal against the cancellation of their licence at the Supreme Court.