The Chepkitale National Reserve was Public Land and the Ogiek Could not Claim Proprietary Rights Over the Same

Summary Significance: The petitioners (the Ogiek) claimed proprietary rights over the Chepkitale National Reserve by dint of article 63(2)(d)(ii) of the Constitution, (ancestral rights). Their claim failed since the suit land fell within the provision of article 62(1)(g) of the Constitution (Public Land). Chepkitale National Reserve was gazetted in the year 2000, hence it ought to be treated as public land and should be handled in accordance with the provisions of the Wildlife Conservation and Management Act, 2013 and the Forest Conservation and Management Act, 2016.

Chongeiywo & 10 others (Suing as representatives of the Ndorobo/Ogiek Community of Chepkitale, Mt. Elgon) v Attorney General & 4 others; Kenya National Commission on Human Rights (Amicus Curiae) (Environment & Land Petition 1 of 2017) [2022] KEELC 13783 (KLR) (19 October 2022) (Judgment)
Environment and Land Court at Bungoma
BN Olao, SM Kibunja & NA Matheka, JJ
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Jurisdiction – jurisdiction of the Environment and Land Court – jurisdiction of the Environment and Land Court to determine a land claim founded on historical injustices – claim that matters regarding historical injustices fall under the purview of the National Land Commission – whether the Environment and Land Court had jurisdiction to determine claims on community land and historical injustices – Constitution of Kenya, 2010, articles 165 (3) (d), 162 (2) (b); Environment and Land Court Act, sections 13 (2) (d), 13 (3) & 21
Constitutional Law – constitutional petitions – formulation of claims in constitutional petition – threshold to be met by constitutional petitions – reasonable degree of precision – whether the petition achieved a reasonable degree of precision as required by courts
Constitutional Law – constitutionality of statutes – constitutionality of section 77 as well as third schedule of the Forest Conservation and Management Act – whether section 77 as well as the third schedule of the FCMA was ambiguous and therefore inconsistent with the Constitution – Constitution of Kenya, 2010, article 10, 40 & 69; Forest Conservation and Management Act, section 77 as well as the third schedule
Constitutional Law – land and environment – community land – what constitutes community land – what conditions ought to be met for land to be considered community land – whether Mt Elgon Forest was ancestral land and therefore formed community land within the meaning of article 63 (2) (d) (ii) of the Constitution – Constitution of Kenya, 2010, article 63 (2) (d) (ii); Community Land Act, section 7
Constitutional Law – fundamental rights and freedoms – violation of rights – the right to property – claim that eviction of the Ogiek from Chepkitale National Reserve infringed on their fundamental rights and freedoms – whether the eviction of the Ogiek from the Chepkitale National Reserve infringed on their rights and freedoms – Constitution of Kenya, 2010, articles 26, 28, 29, 40, 42, 44 & 56; Forest Conservation Management Act, section 64.

Brief Facts:
The Petitioners claim to have traditionally occupied Chepkitale, Mt. Elgon as their ancestral land. In specific they claim to be living in and around Kapsang and Etapei in the Mt Elgon Forest. The petitioners claim that the have been evicted from their ancestral lands numerous times by subsequent Governments. It was the petitioners claim that Mt Elgon Forest was the petitioners’ community land within the meaning of article 63 (2) (d) (ii) of the Constitution. The respondents opposed the Petitioners claim, and stated that Mt Elgon forest was public land within the meaning of article 62 (1) (g), which included Government forests as public land. The 1st and 3rd respondents submitted that article 62 (1) (g) demonstrated that Mt Elgon was a public land that was gazetted as a public forest before the promulgation of the Constitution in 2010.
The 2nd respondent maintained that the petitioners’ claim was inconsistent with article 62 (1)(g) of the Constitution, and that the protected forest was under the control of the state hence could not be said to be the traditional lands of the petitioners. The 5th respondent argued that the petitioners failed to prove that the forest was community land. It was further submitted that Mt Elgon Forest was a water catchment area cutting across two counties and countries, Trans Nzioia and Bungoma, Kenya and Uganda, and could not be available for occupation by the petitioners.

Issues:
  1. Whether the Environment and Land Court had jurisdiction to determine claims on community land and historical injustices
  2. Whether the petition achieved a reasonable degree of precision as required by courts
  3. Whether section 77 as well as the third schedule of the FCMA was ambiguous and therefore inconsistent with the Constitution
  4. Whether the eviction of the Ogiek from the Chepkitale National Reserve infringed on their rights and freedoms
Held:
  1. The petitioners claimed that Mt Elgon forest was their community land, within the meaning of article 62 (2) (d) (ii), which was directly within the jurisdiction of the court as seen from section 13(2) (d) of the ELC Act. The petitioners further claimed that the evictions carried out by the respondents violated their constitutional right to a clean and healthy environment. That issue was also rightfully before the court which derived its jurisdiction from section 13 (3) of the ELC Act. The Environment and Land Court had been further clothed with jurisdiction by section 21 of the ELC Act, to exercise the jurisdiction under article 165(3)(b), (d) and (e)of the Constitution.
  2. From a plain and ordinary interpretation of the law and precedents analyzed, the court had jurisdiction conferred by articles 162 (2)(b) and, 165 (3)(d) of the Constitution and sections 13 and 21 of ELC Act to hear and determine the petition. The petitioners were well within their rights to file their claim in court which was vested with the requisite jurisdiction to hear and determine the instant matter.
  3. recise claims were important in due process, substantive justice, and the exercise of jurisdiction by a court. Due process, substantive justice and the exercise of jurisdiction were a function of precise legal and factual claims. However, precision was not coterminous with exactitude. Although precision had to remain a requirement as it was important, it demanded neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. The whole function of pleadings, hearings, submissions and the judicial decision was to define issues in litigation and adjudication; to demand exactitude ex ante was to miss the point.
  4. The amended petition made reference to the particular provisions of the Constitution alleged to have been infringed in the heading namely, articles 2 (6), 10(2)(b), 21(1), 23(1), 26(1), 27, 28, 29, 40 (1-4), 42, 43, 44, 47, 56, 63(2)(d), (i) and (ii) and 258 of the Constitution. The petitioners precisely set out the particulars of the alleged breaches and violations of their Constitutional rights and freedoms. The petitioners met the Constitutional threshold and the petition ought to be determined on its merits.
  5. Article 69 obliged the state to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits inter alia. The Forest Conservation and Management Act was specifically enacted as an aid to achieve that functionality by the state. The state would have abrogated its constitutional duty to its citizens if it failed to protect the environment.
  6. There was no inconsistency between the provisions of the FCMA with the Constitution. There was no ambiguity noted in the language of the statute in relation to the Constitution. The Petitioners’ contention that the provisions of Section 77 as well as the third schedule of the FCMA violated their rights under Article 40 and was contrary to article 10 of the Constitution was without merit. All that the legislature intended in enacting the Act was to give effect to article 69 of the Constitution. The petitioners had no rights in the forest to be protected by article 40 since no violation was proved to the satisfaction of the court and therefore the FCMA accords with the Constitution.
  7. Under Article 40 (3) and 24 of the Constitution a right or fundamental freedom could be limited by law in a reasonable and justifiable way. The State was empowered with an “Eminent Domain” to acquire land required for public use. The principle of Eminent Domain was a common law concept that allowed the state to have proprietary rights to, in the instant case, forests that sit on what the petitioners’ claim was ancestral lands. The declaration of an area such as Mount Elgon as a forest, or a national park was facilitated by the existence and exercise of the power of Eminent Domain.
  8. There was evidence that the Mt Elgon Forest was gazetted on April 30, 1932 under Proclamation No 44. With that proclamation, Mt. Elgon Forest became a protected area under the management of the Kenya Forest Service (KFS) and the petitioners could only access the forest with the express consent of the KFS for whatever reasons. Section 8 of the FCMA however obligated the KFS to inter alia receive and consider applications for licenses or permits in relation to forest resources or management of forests or any other relevant matter and in consultation with relevant stakeholders, develop programs for tourism and for recreational and ceremonial use of public forests.
  9. The gazettement of Mt Elgon Forest as a public forest effectively extinguished the Ogiek’s claim to the forest. It may be true that the Ogiek Community initially occupied the forest as a hunter-gatherer community. The Petitioners’ witnesses confirmed that they had since abandoned the practice of hunting due to modernization. The claim that they had cultural sites and shrines in the forest as well as gather honey and vegetable from the forest did not qualify the land as Community land. It was therefore clear that even if the forest was a gazetted public forest, the petitioners could still access the forest for purposes of extracting herbs and ceremonial use by procuring the necessary permissions and or licences from the relevant authorities. The petitioners indeed acknowledged being aware of that fact on cross-examination.
  10. The enactment of the Community Land Act, 2016 brought out clarity on what entailed community land. The Act gave conditions that had to be met for land to be deemed community land. Under section 7 on the procedure of registering Community land was set out as follows;
    1. A community claiming an interest in or right over community land shall be registered in accordance with the provisions of section 7.
    2. The community land registrar shall by notice in at least one newspaper of nationwide circulation and a radio station of nationwide coverage, invite all members of the community with some communal interest to a public meeting for the purpose of electing the members of the community land management committee.
    3. The notice shall also be given to the national county administrators and county government administrators in the area where the community land was located.
    4. The community land registrar may use all available means of communication including electronic media to reach the community members.
    5. The community shall elect between seven and fifteen members from among themselves to be the members of the community land management committee as provided in section 15, who shall come up with a comprehensive register of communal interest holders.
    6. The community land management committee shall come up with the name of the community and shall submit the name, register of members, minutes of the meeting and the rules and regulations of the committee to the Registrar for registration.
  11. The petitioners had not demonstrated that any of the above steps had been undertaken. Indeed, not even the first step was shown to have been taken as a quest by the community to have their rights legally recognized.
  12. PW1 to PW3 confirmed in their oral testimony before court that they were all resettled and allocated 5 Acres each of land in Chepyuk Settlement Scheme by the Government. PW1 stated that the Settlement Scheme was created in 1950 so the Ogiek could plant their cereals since the climate in Mt. Elgon was unfavourable. That was confirmation that the Government compensated them for their land alienated in Mt. Elgon. The Petitioners had not adduced any evidence that show that either the land in question had been de-gazetted or the process of gazettement was flawed under the Respondents’ watch and or supervision for which the respondents ought to be held to account. As such, the suit land was a protected public forest within the meaning of article 62(1)(g) of the Constitution.
  13. Mt. Elgon Forest was gazetted as a state forest in 1932. The petitioners were settled in Chepyuk Settlement Scheme by the Government. Before the eviction of June 20, 2016, the County Commissioner-Bungoma issued a verbal notice asking the occupants of the forest to vacate. It was instructive to point out that from the petition and the oral testimonies that the petitioners wish to be allowed to occupy the forest and retain their parcels in the Chepyuk Settlement Scheme created by the government. If that was allowed, the petitioners would have unjustifiably enriched themselves at the expense of the natural resource preservation initiated by the government. That would also set a dangerous precedent and a threat to the ecosystem.
  14. Chepkitale National Reserve was an ecologically sensitive area that was found within Mt. Elgon Forest. It was a home to wild animals including the Elephants. During migration season, elephants use Chepkitale National Reserve as a wildlife corridor. Increased human activity in Chepkitale National Reserve would destabilize the ecological balance posing a threat to the wildlife and plant species. Management of natural resources lay with the Government.
  15. The Environmental Management and Co-ordination Act, 1999 (EMCA) defined sustainable development as development that met the needs of the present generation without compromising the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystems. According to NEMA, the decreasing forest cover was aggravated by an abated environmental destruction of trees for charcoal burning. It was the responsibility of the Court to provide a conducive environment for the enjoyment of constitutionally enshrined rights. It was of utmost importance that the Court jealously protects the environment to ensure that posterity have a chance at enjoying their constitutionally enshrined rights.
  16. Although the Petitioners claim proprietary rights over the suit land by dint of Article 63(2)(d)(ii) of the Constitution, (ancestral rights), their claim failed since the suit land fell within the provision of article 62(1)(g) of the Constitution, (Public Land). Chepkitale National Reserve was gazetted in the year 2000, hence it ought to be treated as public land and should be handled in accordance with the provisions of the Wildlife Conservation and Management Act, 2013 and the Forest Conservation and Management Act, 2016. According to Section 2 of the Wildlife Conservation and Management Act 2013, a National Reserve means an area of community land declared to be a National Reserve under the Act or under any other applicable written law. The characteristics outlined in Section 35 of the Wildlife Conservation and Management Act 2013, had to be in place before a parcel of land was declared a National Reserve.
  17. Chepkitale National Reserve was a gazetted National Reserve, and the law provided the procedure for revocation of public forests in section 34 of the FCMA 2016 and section 37 of the WCMA 2013. Judicial notice was taken regarding the fact that an Executive Petition was filed regarding the variation of the boundaries of Mt. Elgon Forest Reserve. The Executive Petition was tabled in the house on July 5, 2018 pursuant to article 119(1) of the Constitution and Standing Order No. 225(2)(b). The Petition sought the degazettement of Chepyuk phase II & III. A report dated July 4, 2019 was prepared by the Departmental Committee on Environment and Natural Resources confirming that the degazettement of Chepyuk phase II & III was approved. During the aforementioned process in Parliament, a representative of the residents of Chepkitale disagreed with the assertion made by the Executive in the Executive Petition that Chepyuk phase II & III was intended to be in exchange for Chepkitale National Reserve. The representative stated that the Chepkitale Ogiek were not ready to discuss the exchange of their ancestral land for the allocation of land in Chepyuk phase II & III. It was illogical for the Chepkitale Ogiek to suggest that their participation was only limited to their entitlement to be allocated land in Chepyuk Settlement Scheme. It was also illogical for the Chepkitale Ogiek to assert that their allocation of land in Chepyuk Settlement Scheme did not affect their entitlement to make a claim for their ancestral land which was gazetted as Chepkitale National Reserve.
  18. The recommendations made in the Report for the Consideration of a Petition by the Executive Regarding the Variation of the Boundaries of Mt. Elgon Forest Reserve that was tabled by the Chairperson Departmental Committee of Environmental & Natural Resources and Lands before the National Assembly on July 24, 2019 was noted. The Committee recommended the following: -
    1. Pursuant to Section 34 of the FCM Act, 2016 the National Assembly approves the variation of the boundaries of Mount Elgon Forest Reserve to exclude Chepyuk Phase II and III comprising of 4,607 hectares.
    2. The government should properly secure the remaining forest area within Mt Elgon Forest Reserve particularly in Chepkitale considering the need to achieve the United Nations recommended 10% forest cover in the country.

    That route was still available to the petitioners should they wish to pursue it.

  19. The instant petition sought to have Chepkitale National Reserve degazetted so that the petitioners could get a second bite at the cherry on grounds that their ancestors had been in occupation of the suit land since time immemorial. The petitioners were attempting to approbate and reprobate.
  20. Chepkitale National Reserve was public land. The petitioners’ occupation of Chepkitale National Reserve amounts to what was termed as “prohibited activities in forests” under Section 64 of the Forest Conservation and Management Act (FCMA).
  21. On the issue of eviction, other than a list done and presented in court by the petitioners to prove destruction of property, the petitioners did not adduce any other evidence. They did not call any independent witness in support of the allegation. Prior to the oral testimony in court, the court did visit the locus with a view of establishing the extent of destruction on September 27, 2017 and from the evidence on record, three (3) sites were visited. There was evidence of settlement, a disused dispensary and a public primary school with reportedly two hundred and fifty-four (254) pupils. No evidence of apparent destruction was noted. The petitioners had not adduced adequate evidence to support a finding that their eviction from the forest was forceful or that the eviction violated their rights.
  22. The petitioners alleged that their eviction from Chepkitale National Reserve infringed their right to life and their right to be treated with dignity. The petitioners were allocated land in Chepyuk Settlement Scheme where they engage in subsistence farming and livestock keeping. The petitioners testified that although they were a hunter-gatherer community, they have had to embrace new practices. Thus, their claim that eviction from the suit land threatened their enjoyment of the right to life was unsustainable.
  23. The resettlement of Chepyuk Settlement Scheme had been admitted to have started in 1971 in phase 1 and continued to phase II and phase III and completed on or about 1989. By the time the eviction of June 20, 2016 was carried out, the petitioners had already been allocated alternative land over the years and had had adequate time to establish their homes and engage in activities thereon to support their lives.
  24. The instant Court declined the petitioners’ invitation to award the Ogiek compensation for the loss and damage occasioned to them during the eviction exercise. A party should not be allowed to benefit from their illegal actions. Natural resources were not infinite and the unsustainable utilization of natural resources undermined human existence. Forests play a major role in reducing the carbon footprint which resulted in adverse climate changes resulting from the depletion of the ozone layer.
Petition dismissed.


Kenya Law
Case Updates Issue 018/22-23
Case Summaries
CIVIL PRACTICE AND PROCEDURE

Delays caused by a court’s administrative process cannot be visited upon a party seeking to file a supplementary record of appeal

Summary Significance: The applicant filed the instant application seeking among others the enlargement time within which they should file a supplementary record of appeal. The court held that delays caused by court’s administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a party’s reach. The court further pointed out that the principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.

Muthuuri & 4 others v Attorney General & 2 others (Petition (Application) 15 (E022) of 2021) [2022] KESC 74 (KLR) (4 November 2022) (Ruling)

Supreme Court of Kenya
MK Koome, CJ; PM Mwilu, DCJ; MK Ibrahim, I Lenaola & W Ouko, SCJJ
Reported by Kakai Toili

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Civil Practice and Procedure - appeals - supplementary record of appeal - timeline for filing supplementary records of appeal - whether delays caused by courts’ administrative processes to the detriment of a party seeking to file a supplementary record of appeal could be visited upon such a party - what were the principles for grant of an order of extension of time to file a supplementary record of appeal - Supreme Court Rules, 2020, rule 15(2) and 31(1).

Brief facts
The applicant filed the instant application seeking among others the enlargement time within which they should file a supplementary record of appeal. It was their argument that the record of appeal arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 352 of 2019 dated September 23, 2021 was incomplete as the duly sealed notice of appeal and order appealed from had not been filed. It was further their contention that on September 28, 2021 an application was made for the certified copy of the order arising from that judgment, however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules, 2010, which they did by forwarding the draft order to the respondents on September 29, 2021 for approval.
In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the notice of appeal by the Court of Appeal on January 26, 2022. The applicants further contended that the certified order dated September 23, 2021 was issued following further follow up efforts resulting in the filing of the instant application. The respondents argued that the delay was evidently inordinate and offended the principle that there should be an end to litigation and that they would suffer irreparable loss if the orders sought were granted.

Issues:

  1. Whether delays caused by courts’ administrative processes to the detriment of a party seeking to file a supplementary record of appeal could be visited upon such a party.
  2. What were the principles for grant of an order of extension of time to file a supplementary record of appeal ? Read More..

Held:

  1. Under rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions and any person intending to appeal to the court was required by rule 31(1) of the Rules to file the notice of appeal within fourteen days from the date of the decision intended to be challenged.
  2. From the record, after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 202. The applicant’s follow up efforts preceding the issuance of the order were not disputed by the respondents. Delays caused by court’s administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a party’s reach.
  3. The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the court’s exercise of discretion to grant or deny the extension.
  4. In spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, the application met the threshold of extension of time as the delay of two months in the instant matter was not inordinate as the delay was sufficiently explained, and it was not occasioned by the applicant but by the court. That explanation was reasonable and there was no prejudice to be occasioned to the respondents.

Application allowed costs to abide the outcome of the appeal.

CIVIL PRACTICE AND PROCEDURE

Supreme Court allows an application seeking the withdrawal of an appeal and orders each party to bear its costs

Summary Significance: The applicant filed the instant application for orders that; the court grants leave for the applicant to withdraw the appeal before the instant court and for costs to be in the cause. The court held that the matter was not ripe for hearing. The court further held that while applying the principle that costs followed the event, the event to which costs would follow had not materialized and that the respondents did not stand to suffer prejudice if the appeal was withdrawn without costs. The court therefore held that there was no reason to award costs.

Abdirahman v Mandera County Government & 5 others (Petition 14 (E016) of 2022) [2022] KESC 71 (KLR) (4 November 2022) (Ruling)
Supreme Court of Kenya
PM Mwilu, DCJ; SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
Reported by Kakai Toili

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Civil Practice and Procedure - costs - award of costs where a party sought to withdraw an appeal - whether costs could be awarded where a matter was not ripe for hearing and the respondents did not stand to suffer prejudice in the withdrawal of the appeal.

Brief Facts:
The applicant filed the instant notice of motion application for orders that; the court grants leave for the applicant to withdraw the petition of appeal dated June 27, 2022 before the instant court and for costs to be in the cause. It was the applicant’s contention that having been aggrieved by the Court of Appeal’s ruling, he lodged both a petition of appeal and an application seeking stay of the impugned ruling to effectively conserve the substratum of the appeal which related to funds under the supplementary budget of Mandera County. The applicant averred that before the court could hear and issue orders, the funds had since been released and utilized by the respondents. Resultantly, proceeding to hear the application and petition of appeal would be a waste of precious and scarce judicial resources.
The applicant further claimed that since pleadings were never served upon any of the respondents, the latter stood to suffer no prejudice if it was withdrawn with no orders as to costs and that it was in the interest of justice to do so. No party had filed a response to the petition of appeal and the application dated June 27, 2022 seeking conservatory relief save for the 2nd respondent who filed a notice of preliminary objection.

Issue:

  1. Whether costs could be awarded where a matter was not ripe for hearing and the respondents did not stand to suffer prejudice in the withdrawal of an appeal . Read More..

Held:

  1. None of the parties were opposed to the withdrawal of the petition, save for the prayer for costs by the 1st to 4th respondents. In the premises, the prayer to have the petition of appeal withdrawn was allowed. The substratum of the appeal, being of the nature of public interest, was overtaken by events necessitating the withdrawal of the appeal.
  2. The matter was not ripe for hearing despite the 2nd respondent having filed a notice of preliminary objection which had not been heard or directions given. While applying the principle that costs followed the event, the event to which costs would follow had not materialized and the respondents did not stand to suffer prejudice if the petition of appeal was withdrawn without costs . There was no reason to award costs, the limited court attendances by the respondents, which were in any event of the nature of mentions notwithstanding.

Application allowed ; each party to bear its costs.