Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR Introduction 1. By way of a Petition dated 5th October 2010, the petitioner MULUNGUSI MUTHEMBWA MUTUNGA who described himself as “an adult Kenyan of sound mind residing and working for gain in Mombasa and elsewhere in the Republic of Kenya” sought to enforce his right to a clean environment under Article 42 as read with Articles 69 and 70 of the Constitution and prayed for specific orders as follows: (a) An order to declare that the continued existence of the agreement entered into between the 1st and 2nd Respondents in May 2007 entitling the 2nd Respondent to access and exploit for commercial purposes genetic resources, enzymes and microorganisms within Kenya’s National reserves and other protected areas violates and threatens the Petitioners Constitutional rights as enshrined in Article 42 of the Constitution as read together with Articles 69 and 70 of the Constitution and is to that extent unconstitutional, invalid, null and void, and order to nullify the same. (b) A consequent order to declare that the continued access and exploitation of genetic resources, enzymes and microorganisms within Kenya’s National reserves and other protected areas by the 2nd Respondent is unconstitutional, to restrain the 2nd Respondent or its agents from continuing with the said access and exploitation of genetic resources as aforesaid. (c) An order to compel the 3rd Respondents to take measures to stop or discontinue the operation of the agreement between the 1st and 2nd Respondent and any activities stemming from the said agreement. (d) An order to compel and direct the 2nd Respondent to revert all and nay commercial/financial benefits derived under the agreement to the people of Kenya by providing an account of the same and remitting the entire sum of benefits to the National Environmental Trust Fund. (e) An order for costs of this Petition with interest. 2. The Petition was supported by the affidavit of MULUNGUSI MUTHEMBWA MUTUNGA dated 5th October 2010 in which he averred that: (i) The 1st and 2nd Respondents entered into an agreement in May 2007 which entitles the 2nd Respondent to access and exploit for commercial purposes genetic resources, enzymes and microorganisms found within the National Parks, National Reserves and other protected area within the Republic of Kenya. (ii) The existence of the agreement is a matter of the public domain and it is well publicized in the official websites of both the 1st and 2nd Respondents. (iii) In HCCC NO. 321 of 2008 McMillan Edwin Jengo vs KWS & Novozymes A/S, the 1st and 2nd Respondents swore an affidavit through Dr. James Njogu in which the existence of the said agreement was expressly admitted in paragraph 11 and 19 thereof. (iv) The stated agreement is still in force and the 1st and 2nd respondents are actively implementing it. However, the said agreement is not available on the website of any of the two organizations. (v) The 1st and 2nd Respondents did not apply for and obtain, and to date they do not have, an access permit from NEMA as mandatorily required under the provision of Regulation 9 of the Environmental Management and Coordination (Conservation of Biological Diversity and Resources, Access to Genetic http://www.kenyalaw.org - Page 2/11