Letuya & 21 others v Attorney General & 5 others (Environment and Land Case Civil Suit 821 of 2012) [2014] KEELC 683 (KLR)

The court held that legal and equitable property rights in land arise from formal allocation, transfer and registration, none of which the Applicants proved; long occupation alone cannot confer rights, and forest land as government land cannot support adverse possession. However, the Applicants' livelihood is directly dependent on forest resources, so their rights to life, dignity and socio-economic rights apply in relation to their access to the forest. Applying the Capotorti and Deschenes definitions and the ILO Convention No. 169 definition of indigenous peoples, the court found the Ogiek to be a significant minority and indigenous community deserving affirmative action under Article 56.

It was undisputed that land occupied by the Applicants was allocated to others. The court found the Applicants' livelihood directly dependent on the forest; the State's own policy documents (National Land Policy, Sessional Paper No. 3 of 2009) admitted the loss of minority communities' access to land and forests; and the Mau Task Force Report showed the excisions were intended to settle the Ogiek. Allocating their land to others defeated that purpose and differentially affected them as a minority and indigenous group, amounting to discrimination contrary to section 82 of the old Constitution and Articles 27 and 56 of the 2010 Constitution.

The Respondents provided no evidence of compliance with the excision procedure under the Forest Act. The Mau Task Force Report, adopted by the court, found allocations by unauthorised persons, benefit to non-deserving people including senior officials, breach of governing statutes, multiple allocations, over 99% of title deeds affected by irregularities, and schemes established beyond excision boundaries. The court therefore could not uphold the legality of the allocations, but rather than nullifying them, adopted the Task Force recommendations that irregular titles be revoked and deserving Ogiek members be settled outside critical catchment areas.

Having found violations, the court held the Applicants entitled to declaratory relief. However, the nullification and removal orders were overtaken by the Task Force process and the 2010 constitutional framework under which only the National Land Commission may allocate public land and implement settlement programmes; an effective remedy required the Commission's participation though it was not a party. Further, deserving beneficiaries must first be identified through a register developed with the Ogiek Council of Elders. The claim against the 5th Respondent, sued personally, was not proved. The court distinguished Kemai v Attorney General as decided before the 2005 Forests Act, the 2009 land policy, the 2010 Constitution and the Task Force Report.