Abdikadir Sheikh Hassan & 4 others (Plaintiff) v. Kenya Wildlife Service (Defendant)

The Plaintiff asked for orders restraining the defendant from removing or dislocating a rare and endangered animal called “the Hirola” from its natural habitat in Arawale to the Tsavo National Park on the grounds that it is a gift to the people of the area and should be left there. The defendant contended that the injunction should not be granted as the application was seeking to curtail the respondent from carrying out its express statutory mandate. The Court outlined the principles when dealing with applications like the present one. First, the applicant should show prima facie case with a likelihood of success. Secondly, it should be shown that the applicant is likely to suffer an injury which cannot be adequately compensated by damages if the injunction is not granted. Finally, if there was some doubt, the court should act on balance of convenience. Regarding the first principle the court observed that according to common and/or customary law, those entitled to the use of the land are also entitled to the fruits thereof which include the fauna and flora unless this has been negated by law. The Kenya Wildlife Conservation Act S. 3A did not entitle the respondent to translocate wild animals. Thus, the respondent was trying to deplete trough translocation the applicants’ heritage of fruits of the land of which they are entitled to. The Plaintiff had shown a prima facie case with the likelihood of success. On the second principle, the Court stated that the animals might not survive in a new habitat which they are not used to. The Court therefore granted the injunction.