Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR Respondent. (g) The 3rd Respondents is the principal Government instrument in the protection and enhancement of the rights that are enshrined in Article 42 of the Constitution as read together with Articles 69 and 70 of the Constitution. Withdrawal of Petition and Application for Costs 3. The respondent parties filed their respective responses but the petition was subsequently withdrawn against all the respondents before it was heard on the merits, and the question of costs for the petition arose as between the petitioner and the 3rd respondent. The 1st and 2nd respondents did not pursue costs. 4. Consequently, the contest on the costs is between the 3rd respondent and the petitioner and it is in that regard convenient to set out the 3rd respondent’s response to the Petition. The Response by the 3rd respondent on the merits 5. The 3rd Respondent had filed a Replying Affidavit sworn by AYUB NDARUGA MACHARIA dated the 15th of December 2010 stating that (i) As the Acting Director General of the National Environment Management Authority of the 3rd Respondent he was duly authorized to swear the affidavit. (ii) The Petitioner has not provided any reasonable evidence in support of the Petition as against the 3rd Respondent. (iii) The 1st and 2nd Respondent entered into an agreement on or about May 2007 and that the said agreement was in respect to the 2nd Respondent accessing and exploiting for commercial purposes genetic resources, enzymes and microorganisms found within the National Parks, National Reserves and other protected area within the Republic of Kenya. (iv) Contrary to the Petitioners allegations that the 3rd Respondent has general supervision and coordination over all matters relating to the Environment, issues dealing with Wildlife Management is well spelt out in Section 3A of Chapter 376 of the Laws of Kenya which indeed confers Environmental issues in Wildlife protected areas to the Wildlife Conservation and Management Act Chapter 376 of the Laws of Kenya. (v) In view of the foregoing, compelling the 3rd Respondent to take measures to stop or discontinue the operations of the above stated agreement between the 1st and 2nd Respondent is a nullity since the 3rd Respondent is not at all mandated by law to interfere with the Management of the 1st Respondents affairs. (vi) Wildlife issues fall under the ambit of the Wildlife Conservation and Management Act whereas Environmental issues are the ambit of the Environment Management and Coordination Act of 1999. (vii) The Constitutional Court lacks the jurisdiction to entertain this matter in the initial stage since section 3 of the Environmental Coordination and Management Act has not been properly invoked, since the Petitioner has failed to show how the said agreement between the 1st and 2nd Respondent has impacted on him or his environment. http://www.kenyalaw.org - Page 4/11