Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR (viii) Section 125 and 126 of the Environmental Management and Coordination Act requires the Petitioner to lodge his complaint with the relevant National Environmental Tribunal hence the Petitioner is wrongly before the court. (ix) Under the Environmental Coordination and Management Act of 1999 there are no provisions thereunder requiring the National Environmental Management Authority to carry out an impact assessment of any project, and that such assessment should be done by the proponents of the alleged project. (x) The 3rd Respondent has never issued any license in relation to the project that was undertaken by the 2nd Respondent and further that the issuance of the said license does not fall under the ambit of the 3rd Respondents’ powers. (xi) The main object of the Wildlife Conservation and Management Act Cap 376 of the Laws of Kenya was for the protection and preservation of the said protected areas hence the 3rd Respondent has no or little mandate in control over the happenings of the 1st Respondent management. 6. Clearly, the 3rd respondent had joined issue with the petitioner on the issue of his liability for the reliefs sought against him in prayer (c) of the Petition as follows: “(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.” SUBMISSIONS BY THE PARTIES 7. By consent of the parties, directions were given for parties to file written submissions on the issue of costs, which the Counsel for Petitioner and Counsel for the 3rd respondent did and ruling was reserved. 8. For the Petitioner it was contended that the petitioner had a good case for the protection of the environment brought for the benefit of the citizens of Kenya rather than for any private gain, and accordingly as a public interest litigation costs should not be decreed against the petitioner: “The said Petition was premised on Articles 22, 23, 42, 69 and 70 of the Constitution of Kenya. The Petitioner challenge the constitutionalism of an Agreement entered into between the first and second respondents where the first Respondent allows the second respondent to access and exploit for commercial purposes, genetic resources, enzymes and Microorganisms within National Reserves and other protected areas falling under the mandate of the first respondent. It was the Petitioner’s informed view that the said agreement was illegal, null and void, and equally the continued access and exploitation of genetic resources by the 2nd Respondents as aforesaid was illegal, null and void since the 1st and 2nd Respondents had failed to apply for an ACCESS PERMIT from the 3rd Respondent as required by the Mandatory provisions of Regulation 9 (1) of the Environmental Management and coordination (Conservation of Biological Diversity and Resources Access to Genetic Resources and Benefit Sharing) Regulations 2006. Your Lordship, the 3rd Respondent through ITS Acting Director General, one AYUB NDARUGA MACHARIA, swore the Replying Affidavit on 15th December, 2010 where at paragraph 7 there is an admission that NEMA was well aware of the agreement between the 1st and the 2nd Respondents. http://www.kenyalaw.org - Page 5/11