Residents of part of the Eastern Mau Forest were rightfully in occupation of the land allocated to them, as long as such land fell within the forest land that was excised for Settlement purposes
Headnote: The main issues arose from the Government’s decision to evict settlers win forest land. It was claimed that a Gazette Notice altering the boundaries of the Eastern Mau Forest and settling citizens within had created a legitimate expectation to that land, by the settler. The court found that the Government had properly degazetted 35,301.01 Hectares of Eastern Mau Forest, hence the persons who were settled within that area were validly settled and if they had been issued titles, such titles were valid and should be respected. The Government and the Kenya Forest Service had to move with speed to delineate the boundary and any person found to be beyond such boundary once established had to vacate from the forest land and/or be evicted forcefully.
Tonui v Kenya Forest Service & 3 others; Law Society of Kenya & Others & 12 others (Interested Parties) (Constitutional Petition 11 of 2020) [2024] KEELC 6320 (KLR) (30 September 2024) (Judgment)
Neutral citation: [2024] KEELC 6320 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
JM Mutungi, J
September 30, 2024
Reported by Robai Nasike Sivikhe
Downlod the Decision

Environmental Law – forest land – decision to alter the boundaries of forest land – where government resettled a number of its citizen in forest land – eviction of citizens who had been resettled within forest land – whether the restoration of the Eastern Mau Forest should entail eviction of the settlers from the land that the Government voluntarily allowed and facilitated them to settle in, without a clear resettlement plan – Forest Act (Cap 385) (repealed), section 4 (2)
Constitutional Law – legitimate expectation – the right to property – legitimate expectation to forest land that was gazetted and granted to a number of citizens during resettlement – balancing the citizen’s legitimate expectation to land awarded by government viz -a-viz the need to conserve forest land and the environment – whether the Government, having voluntarily allocated the settlers with the land on which they had settled, they had a legitimate expectation that the same Government would allow them to settle in peace and not seek to evict them – Constitution of Kenya, articles 43 and 66 (1)
Constitutional Law – fundamental rights and freedom – right to access to information – where a taskforce had been established to implement a decision made in favour of the Ogiek Community – where the taskforce failed to furnish information to the members of the Ogiek Community – whether failure by a taskforce to furnish information to the Ogiek Community regarding implementation of the judgement by the African Commission of Human and People’s Rights, breached on their right to access to information
Jurisdiction – jurisdiction of the High Court – jurisdiction of local courts via -a viz regional courts – jurisdiction of a local court to ensure that a judgment from a regional court was enforced - whether the High Court and other Local Courts were bound by the decision of the African Commission on Human and Peoples Rights – whether local courts could issue orders to enforce the judgment of a regional court

Brief Facts
The Judgment was in respect of all the five (5) consolidated petitions namely; Petition No. 11 of 2020 by Samuel Kipkemoi Tanui; Petition No. 130 of 2017 by Charles K. Langat & 14 others; Petition No. E005 of 2020 by John Njenga Mbugua & 5 Others; Petition No. E006 by Johnson Kamuri Murugami & 16 Others and Petition No. 16 of 2020 by Ogiek Council of Elders (suing on their behalf and on behalf of the Mau Ogiek Community) & Another.
On being consolidated, the Court directed that Petition No. 11 of 2020 becomes the lead, file. In all the petitions the subject matter was the Mau East Forest Complex and the broad issues were whether there was encroachment onto forest land; whether there had been any degazettment of any part of the forest; whether there were titles issued on forest land, and if so, the validity or otherwise of such titles; the rights of the Ogiek as a Community as pertains to occupancy of the Mau Forest Complex; and whether any parties’ constitutional rights were violated by the Government in its endeavor to protect and conserve the Mau Forest Complex.

Issues
  1. Whether the restoration of the Eastern Mau Forest should entail eviction of the settlers from the land that the Government voluntarily allowed and facilitated them to settle in, without a clear resettlement plan
  2. Whether the Government, having voluntarily allocated the settlers with the land on which they had settled, they had a legitimate expectation that the same Government would allow them to settle in peace and not seek to evict them
  3. Whether the High Court and other Local Courts were bound by the decision of the African Commission on Human and Peoples Rights
  4. Whether local courts could issue orders to enforce the judgment of a regional court

Held
  1. There was uncontroverted evidence that the Government during the 1990s allowed and/or permitted people to enter and occupy tracts of land which constituted forest reserves around Londiani, Elburgon, Njoro and Kuresoi which were within the Eastern Mau Forest Complex. In Nakuru District, the Government around 1997 designated thousands of hectares of the Eastern Mau Forest as settlement schemes and allocated 5 acres parcels of land to the settlers. That saw the creation of Nessuit, Mariashoni, Sururu, Likia, Terit and Sigotik settlement schemes. Those settlements still existed and were occupied and settled in.
  2. There was Government facilitated settlements in Nessuit, Mariashoni, Sururu, Likia, Terit and Sigotik where from 1995 persons were allowed to occupy portions of land that were surveyed and parceled out and given distinct numbers. Indeed, a large number of people had title deeds processed and issued to them from 1997 through to 2017. The Government consciously established those settlement schemes and allocated and/or permitted persons to enter and occupy the land within the said schemes.
  3. The Government through the relevant Minister issued the Notice of Intention to Alter the Eastern Mau Forest Boundary vide Gazette Notice No. 889 of January 30, 2001 as required under Section 4(2) of the Forest Act (Cap 385), Laws of Kenya (repealed). As at January 30, 2001 when the Minister issued the notice of intention to alter the forest boundary, settlements had already taken place in the settlement scheme. In a sense therefore, the Minister was in effect taking steps to regularize what otherwise had been unlawfully done without first having the forest boundary altered before establishing the settlements.
  4. The Government’s determination to complete the process of altering the forest boundary of the Eastern Mau forest was evidenced by the fact that the then Minister, on October 8, 2001 issued Legal Notice No. 142 for Alteration of Boundaries – Eastern Mau Forest to effectively sanction the excision of 35,301.01 hectares as specified in the schedule attached to the Legal Notice from the forest. It had not been demonstrated that the Legal Notice No. 142 of October 8, 2001 was quashed, and/or annulled. Even if there was an order staying implementation it could not have been indefinite. An order of stay was ordinarily pegged on the occurrence of some event and could not be for an indefinite time. The Legal Notice still remained valid and consequently served to complete the process that was commenced by Minister Nyenze vide the Gazette Notice No. 889 of 30th January, 2001. Accordingly, the Legal Gazette Notice No. 142 of October 8, 2001 operated to alter the boundary of the East Mau Forest as expressed in the Gazette Notice.
  5. The petitioners were given a promise, they were let in occupation by the Government, and the Government by its conduct of gazetting the intention to alter the forest boundary, and ultimately degazetting the land set apart from the forest, gave the petitioners and settlers within the Scheme legitimate expectation that their resettlement was “fait accompli”. The Government had the ability to give the promise and the petitioners were entitled to act on it. The petitioners/Settlers had a legitimate expectation that the Government would settle them in the land identified for settlement by the Government. The Government by seeking to go back on its promise, violated the petitioners’ legitimate expectation and their property rights.
  6. The Government may have realized that it goofed by opening what was otherwise forest land to settlement and legitimizing it by undertaking the process of degazetting the forest land. The realization was fraught with challenges as to reverse the position to pre 1997 when the settlements commenced in earnest, would be nearly impossible. There were thousands of people who had settled in the established schemes and any mass evictions would require a massive resettlement plan of the evictees. The Government has not indicated that they had such a plan and if anything, the Government appeared only to be focused on getting the settlers out of what it claimed to be forest land.
  7. While it was essential and necessary to preserve and conserve the forest, the Court had to be alive to the situation on the ground and in doing so, to also be conscious of the dictates of Article 43 of the Constitution. The Court had to be careful not to, in the name of endeavoring to protect the environment, unwittingly usher in a humanitarian crisis where inhabitants were flushed out and left on the roadsides and market and trading centers where they added to the population of internally displaced persons (IDP’s). The Court took notice that not all IDP’s from the 2007/8 post-election violence have been settled todate.
  8. There may be persons who may have taken advantage of the confusion relating to the delineation of the forest area from the settlement area and encroached onto the forest land. Those persons, if found to have encroached onto the forest area beyond the boundary of the Settlement Schemes, were to be evicted forcefully as they could be the source of the problem.
  9. The Government properly degazetted 35,301.01 Hectares of Eastern Mau Forest. The persons who were settled within that area were validly settled and if they had been issued titles, such titles were valid and should be respected. The Government and the Kenya Forest Service had to move with speed to delineate the boundary and any person found to be beyond such boundary once established had to vacate from the forest land and/or be evicted forcefully.
  10. Human activities over time globally have had adverse effects to the environment. Kenya had not been spared the adverse effects of the global climate change and hence every activity that had potential to adversely affect the environment had to be carefully considered and evaluated to ensure the adverse effects were mitigated. The allocation of part of the forest as settlement land definitely affected the ability of the Mau Forest Complex to act as water catchment area and as such action had to be taken to restore the tree cover to the extent possible and it was for that reason as a mitigation measure of the impacts of deforestation, a limitation of the land use within the settlement area, was recommended, with a view of mitigating the adverse impacts of deforestation resulting from human settlement in what was forest land.
  11. The protection and conservation of the environment was for the public good and the Government and the Agencies that have the responsibility to ensure the environment and water catchment areas were protected such as NEMA and the Water Resources Management Authority (WARMA) must play their part as the law mandated them to do. Under Article 66(1) of the Constitution, the Government, in the public interest, could impose regulations regarding the use of land. With regard to the settlements that were curved out of what was forest land, the Government could properly through, its Agencies regulate the land use such that the impacts of deforestation were mitigated to minimize the negative adverse effects of the action taken to degazette part of Eastern Mau Forest by the Government.
  12. While there was evidence there could have been some evictions, it could not be ascertained whether the evictions were executed on forest land and/or settlement land. The Kenya Forest Service had the mandate to protect forest land from intrusion and could properly carry out evictions from forest land provided they did so upon notice and effect the evictions in a humane manner. No evidence was adduced to demonstrate that they had carried out any evictions unlawfully and/or in an unhumane manner. The claim for damages was not proved and was dismissed.
  13. In as far as the Ogiek community was concerned, it was only the implementation of the Judgments that remained outstanding and it was on that account that they joined the Petition as Interested Parties and filed Petition 16 of 2020 which was consolidated with the instant Petition. The Petition was filed after the African Commission on Human and People Rights had rendered its merits Judgment but before the Judgment on reparations arising out of the merits Judgment. The Judgment on reparations sought to give enforcement of the merits Judgment and that in its final orders in the reparations Judgment the Court granted specific remedies and set time lines for the fulfilment of other obligations by the State. The Court had no power/jurisdiction to compel the respondents to enforce the decision of the African Commission on Human and Peoples Rights. The commission through the reparations Judgment had demonstrated that it had the ability to enforce its own Judgment.
  14. To the extent that the Task Forces were established with the objective of implementing the merits Judgment of the African Commission on Human and People’s Rights (App. No. 006 of 2012) which the Ogiek Community had prosecuted and obtained the Judgment in their favour, they were entitled to be involved in the activities of the Task Forces and to be furnished information upon request. The activities that the Task Forces were undertaking were likely to affect the Ogiek Community and they had the right to be informed of what was happening and/or the progress of the activities.
  15. The establishment of the Multi Agency Task Force in August/September 2020, which was not gazetted and/or with any publicized Terms of Reference, and without the involvement of the Ogiek Community representatives and yet one of the Task Force’s objectives was the implementation of the Merits Judgment of the African Commission on Human and Peoples Rights was unlawful and lacked any legal backing. The activities of that Task Force were a nullity as it lacked a Legal frame work to anchor its activities.
  16. The Ogiek Community joined the Petition and filed their Petition before the delivery of the reparations Judgment on June 23, 2022. The Judgment on reparations changed the landscape fundamentally as it issued indictments against the state and set new time lines and thresholds for the Government to meet. The Ogiek Community should focus on the implementation and satisfaction of the reparations Judgment as it was in effect, given in enforcement of the merits Judgment. The High Court could not execute the Judgment of the Regional Court, at least not within the ambit of the instant Petition.
  17. The Ogiek Community had presented the Judgments delivered by that Court as though they were fait accompli where the High Court was bound by them and all that remained was to implement the Judgments. As a National Court, the Court was expected to interpret the Constitution or the National Laws and on the basis of the evidence make a determination. Hence where a dispute concerned the application of any domestic laws and/or customary or International Law, the jurisdiction of the National Court could not be surrendered to the Regional Courts but the jurisprudence from such Courts could be taken as persuasive authorities.
  18. The petitioners/residents were rightfully in occupation of the land allocated to them provided such land fell within the forest land that was excised for Settlement purposes. Considering that the land was part of the Eastern Mau Forest before excision, the land use by the settlers must be such as compliments the greater Mau Forest Complex for sustenance of the Ecosystem of the Mau Forest as a Water Tower and a water catchment area. The residents must be required to ensure there was no interference with the riparian reserve of all rivers that flow through the Settlement lands. The Settlers must also be required to plant trees and to maintain a tree cover in respect of each parcel of land of not less than 30%. The Settlers had or would be issued free hold titles which had no encumbrances, however, if Article 66(1) & 69 (2) of the Constitution were invoked both the Settlers and the Government Officers on the ground could enforce compliance.
  19. To attain the threshold of 30% tree cover, Kenya Forest Service would need to avail tree seedlings to the settlers and in liaison with the Local Administration of the Ministry of Interior and Coordination of National Government and the County Environment Department could easily ensure compliance. They were under Article 69(2) of the Constitution obligated to do that and they should. Everybody had a role to play in the conservation and protection of the environment for sustainable development to be a reality.
Petition allowed.
Orders
  1. The Legal Notice No. 142 of October 8, 2001 be implemented and the Government within a period of 12 months from the date of the Judgment to establish and delineate the forest boundaries within the Settlement Schemes by placing physical and visible beacons on the ground.
  2. The Government through the Ministry of Interior and Coordination of National Government and the Ministry of Lands, Housing and Urban Development was directed to verify and authenticate the allottees of land within the Settlement Schemes and to issue titles to any of the allottees who may not have been issued title to land allocated to them.
  3. That upon the delineation and establishment of the forest boundary any person found to have encroached onto the forest land to vacate forthwith failing which the Kenya Forest Service to be at liberty to evict such people forcefully but any such evictions to be humane and to comply with Section 152G of the Land Act, 2012.
  4. The owners of land within the Schemes shall be required to ensure there was no interference with the riparian reserve of any rivers flowing through their lands and every land owner within the schemes shall be required to increase the tree cover in their parcels of land to a minimum of 30% of the land within a period of 60 months from the date of the Judgment.
  5. The Ministry of Interior and Coordination of National Government, the Kenya Forest Service, the National Environment Management Authority (NEMA) and the Water Resources Management Authority (WARMA) shall oversee the implementation of (6) above under the auspices of Article 69(2) of the Constitution.
  6. The Ogiek Community’s Rights of Access to information was violated by the Respondents but the Judgment on reparations dated June 23, 2022 has rendered any orders otiose. The Government should facilitate the implementation of the Judgment.
  7. The Petition No. 6 of 2020 was not proved and was dismissed.
  8. Each party to bear their own costs of the consolidated Petitions as the Petitions involved public interest.
Kenya Law
Case Updates Issue 020/2024-2025
Case Summaries  
   
EVIDENCE LAW A claim based on historical injustices must be verifiable and the act(s) complained should have resulted in displacement of the claimants or other form of historical land injustice

Headnote: The appellants claimed that they had a right to be settled on the suit lands by virtue of fact their forefathers lived on the land before they were violently evicted. The court held that when the title of a party was under scrutiny, the concerned party ought to travel beyond and show that he validly acquired title. The court noted that section 15 of the National Land Commission Act required a claimant of historical injustice to adduce evidence that was verifiable, that the act(s) complained of be demonstrated to have resulted in displacement of the claimant or other form of historical land injustice.

Wambega & 733 others v Attorney General & 9 others (Civil Appeal E028 of 2020) [2024] KECA 445 (KLR) (12 April 2024) (Judgment)
Court of Appeal at Mombasa
P Nyamweya, JW Lessit & GV Odunga, JJA
April 12, 2024
Reported by Kakai Toili

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Evidence Law - burden and standard of proof - burden and standard of proof in a claim of historical land injustice - burden of proof when the land title of a party was under scrutiny - what was the standard of proof required in a claim of historical injustice – National Land Commission Act (cap28), sections 15(2) and (3).

Brief facts:
The 2nd to 5th respondents advanced various banking facilities to the appellant between 2010 and 2014. Those facilities were secured by The appellants claimed that between 1960 to 1962 right through to the year 1970 there were forced evictions of the occupants in the suit lands, that those evictions were executed violently without regard to human life and with destruction of property. The appellants averred those attempts to address the issues through political means failed when in 2012 the court declared the process unconstitutional for failure to provide an avenue for compensation of the current land owners. That, they averred had led to infringement of their right to the suit land due to the Government’s failure to declare the suit land ancestral land or trust land. The appellants thus filed a petition at the trial court.
The appellants claimed they had a right to be settled on the suit lands by virtue of fact their forefathers lived on the land before they were violently evicted, which, they claim caused them to lose their ancestral land. They claimed that their loss was a historical injustice. They thus sought for among other prayers; declarations that the appellants’ rights to property and dignity had been violated; and a declaration that the suit properties were ancestral lands. The trial court dismissed the petition. Aggrieved, the appellant’s filed the instant application.

Issues:

  1. Who bore the burden of proof when the land title of a party was under scrutiny?
  2. What was the standard of proof required in a claim of historical injustice? Read More..

Held :

  1. Being a first appeal, it behooved the court to re-evaluate, re-assess and re-analyze the evidence on record and then determine whether the conclusions reached by the trial court should hold.
  2. The National Land Commission Act, at section 15(2) and (3) provided a description of historical injustices and the threshold for such a claim to be admitted, registered and processed. Section 15(3)(a) specified that a claim based on historical injustices must be verifiable, and specifically, that the act(s) complained of be shown to have resulted in displacement of the claimants or other form of historical land injustice.
  3. The evidence presented was problematic. First of all, the statement of all the witnesses except the Assistant Chief were generic to the extent that the statement were similar word for word. Secondly, there was no specifications of relevant issues in the statements, just generalized lyrics that were mere speculation, impersonal in terms of ownership of the information given and hypothetical in nature. The third problem with the statements, was the lack of supportive evidence in substantiation of the generalized allegations made.
  4. It was not sufficient for a petitioner to simply refer to various articles of the Constitution without linking those articles to the issues for determination. A petition must therefore set out the articles alleged to have been violated or threatened with violation and state the relevance of those articles to the issues for determination. The appellants fell short of making linkages between the acts of violations complained of, with the articles of the Constitution invoked, and the issues presented for the determination of the court.
  5. When the title of a party was under scrutiny, the concerned party ought to travel beyond and show that he validly acquired title. There was no allegation that the respondents obtained their titles through fraud or misrepresentation, or illegally, unprocedurally or through corrupt scheme.
  6. From the trial court’s judgment, there was nothing to justify the accusation that it applied a stricter standard of proof above that set under section 15 of the National Land Commission Act. That section required a claimant of historical injustice adduced evidence that was verifiable, that the act(s) complained of be demonstrated to have resulted in displacement of the claimant or other form of historical land injustice. The trial court applied the correct test to the appellants claims and correctly found it undiscernible and unverifiable.
  7. The trial court made certain observations; however, they were general observations arising from the circumstances of the petition. They were really not directed at the appellants, but were an appeal to Kenyans of all ethnic groups to embrace people from other ethnic groups.
  8. The generic statements of the appellants’ five witnesses, and the statement of the retired Assistant Chef in support of claims to the suit lands on behalf of 734 appellants, did not establish their claims to the suit lands, nor did they substantiate the alleged violations of their constitutional rights. There was no evidence of any of the allegations of violation of the appellants constitutional rights by any of the respondents. The trial court was right to arrive at the findings he did. The appellants provided little or no particulars as and the manner of the alleged infringements.

Appeal dismissed; each party to bear their own costs.
CONSTITUTIONAL LAW The one sure way of determining the interests of the child was to interview the child and weighing the child’s views against all the circumstances of the case

Headnote: : In the instant case the appellant was aggrieved by the ruling of the trial court issuing interim access orders of his children to their maternal grandparents. The court held that it was the interests of the child which were paramount and not the interests of the parent. The court further held that one sure way of determining the interests of the child was where as in the instant case there was a request to interview the child, interview that child and then weigh the views of the child against all the circumstances of the case.

SM v DK & another (Civil Appeal 120 of 2023) [2024] KEHC 162 (KLR) (Civ) (19 January 2024) (Judgment)
High Court at Nairobi
PM Nyaundi, J
January 19, 2024
Reported by Kakai Toili

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Constitutional Law – fundamental rights and freedoms – children rights – right to access children - whether it was necessary and in the best interests of children for courts to interview children before issuing interim orders of access of the subject children – Constitution of Kenya, article 53; Children Act (cap 141), sections 3(b), 4(2) and 76.

Brief Facts:
The respondents were the maternal grandparents of the minors who were 12 and 10 years old. The appellant was their biological father. The mother of the minors died on February 26, 2020. The respondents moved the trial court and sought for among other interim orders; that pending the hearing and determination of the application, they be granted reasonable access to the children as follows; two evenings after school during the week and one overnight stay either on Friday or Saturday during the school term; four days out of the ten days of the half term break; and two weeks of the long school holiday and one week out of the other holidays. The appellant opposed the request for access on the reason that the grounds upon which the same was sought was fraught with misrepresentation of facts. He argued that the children were in school and attending evening classes and that the access order would disrupt their schedule. The trial court made the following orders; that the respondents to have access of the minors one evening during the week on Wednesdays for a period of 120 minutes; that the plaintiffs have an overnight access on alternate weekends from Friday evening to Saturday morning; access during the summer vacation to await determination of the application. Being dissatisfied with the trial court’s ruling, the appellant filed the instant appeal.

Issue:

  1. Whether it was necessary and in the best interests of children for courts to interview children before issuing interim orders of access of the subject children. Read More..

Held :

  1. The guiding principles when considering matters concerning children’s welfare were found in the Constitution that required that the best interests of the child be of paramount importance. The same principles were echoed in section 4(2) and 3(b) of the Children Act. Section 76 of the Children Act provided the general principles applicable in regard to proceedings in children’s courts.
  2. The respondents were very attached to the minors. The trial court erred in principle in failing to interview the minors prior to granting the interim orders of access especially since there was a request for the court to do so. That ran afoul of the best interests of the child principle which recognised children as subjects and not objects of the law. Persons who had agency to articulate and share their views and preferences when given an opportunity to do so.
  3. There were no aggravating circumstances that necessitated the court to move with haste to grant orders that impacted the children without hearing them. If the trial court had interviewed the children they would have for instance pointed out that the proposed after school visits on Wednesdays were in conflict with their school calendar.
  4. In the circumstances of the case, given the age of the minors, the events of February 28, 2023 that had occasioned one minor to send a message voicing concern to the appellant, the court was obligated to ascertain the wishes/ views of the children. It was the interests of the child which were paramount and not the interests of the parent. The one sure way of determining the interests of the child was where as in the instant case there was a request to interview the child, interview that child and then weigh the views of the child against all the circumstances of the case. It was in the best interest of the child that the matter before the lower court be heard on merits expeditiously.

Appeal partly allowed.
Orders

  1. The court directed that the matter be referred back to the Magistrate’s Court for hearing of the main suit on a priority basis.
  2. On interim access pending the determination of the main suit, when the matter was mentioned before the instant court, the court directed that the appellant would facilitate supervised visits by the minors. The court directed that the visits continue having regard to the school and social calendar of the minors at times to be mutually agreed upon.
  3. Each party to bear their own costs.