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ELCDismissedConstitutional Petition (Nakuru), filed 3 November 2013· [2015] KEELC 692 (KLR)

Clement Kipchirchir & 38 others v Principal Secretary Ministry of Lands Housing and Urban Development& 3 others [2015] KEELC 692 (KLR)

Environment and Land Court
21 April 2015
9,863 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed 55 Mau Forest settlers' claims, ruling their 1997 titles were unlawfully issued before the forest was degazetted.

What this practically means

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Executive summary

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Fifty-five persons alleging allocation of land at Likia Settlement Scheme (Extension) in 1997 and issuance of title deeds petitioned after their 2011 eviction during the Mau Forest restoration, seeking declarations that the eviction and degazettement were unconstitutional, mandamus for restoration, or market-value compensation. The court framed six issues. On res judicata, the prior judicial review applications cited were never determined on the merits and Nakuru Petition No. 22 of 2012 was unrelated, so the petition proceeded. KFS was properly joined, the court holding that Bill of Rights claims apply horizontally and that KFS was an alleged participant and necessary party under the Forest Act. On the merits, only 34 of 55 petitioners annexed title deeds; the claims of the other 21 were dismissed outright. The court doubted the authenticity of the titles absent allotment letters, RIMs or searches, and held that titles issued in 1997 over land only degazetted in 2001 were acquired unlawfully, contrary to the Forests Act (Cap 385). Such titles fall outside the protection of Article 40(6) of the Constitution and Section 26 of the Land Registration Act. Although the petitioners occupied in good faith and could claim compensation under Article 40(4), such compensation cannot equal full just compensation under Article 40(3), and the Kshs 400,000/= offered could not be faulted. On eviction, the court found the conservation of the Mau Forest, a critical water tower, a sufficient justification, and found no evidence of razing of houses, slashing of crops or inhumane treatment, the burden resting on the petitioners. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Res judicata / abuse of process

Holding

The petition is not res judicata; the prior matters cited were never heard on the merits or were unrelated

Reasoning

Nakuru Misc. No. 60 of 2011 was refused leave and never canvassed on merits; Nairobi Misc. Civil Suit No. 421 of 2002 was not substantiated with pleadings; Nakuru Petition No. 22 of 2012 concerned unrelated Enosupukia displacement claims.

p. 9
02

Joinder of KFS (horizontal application of the Bill of Rights)

Holding

KFS was properly enjoined as an alleged participant and necessary party

Reasoning

The court adopted the view that constitutional rights apply both vertically and horizontally; whether a petition lies against a private or subordinate body depends on the nature of the right, the parties and available alternative mechanisms. KFS manages forests under the Forest Act.

p. 11
03

Validity of titles issued before degazettement of the forest

Holding

Titles issued in 1997 over land only degazetted in 2001 were unlawfully acquired

Reasoning

Land still within a gazetted forest could not lawfully be allocated; the Forests Act (Cap 385) required proper degazettement before excision. Titles issued in 1997 over forest land degazetted in 2001 were therefore obtained in contravention of the law. Only 34 of the 55 petitioners annexed title deeds; the other 21 had no proof of allotment, settlement or eviction, and their claims were dismissed outright.

p. 13
04

Protection of unlawfully acquired titles

Holding

Unlawfully acquired titles are not protected by Article 40 or Section 26 of the Land Registration Act

Reasoning

Article 40(6) excludes rights over unlawfully acquired property, and Section 26(1)(b) of the Land Registration Act subjects titles acquired illegally, unprocedurally or through a corrupt scheme to challenge. Such titles cannot seek the protection of the law.

p. 14
05

Entitlement to and level of compensation

Holding

Good-faith occupants are entitled to compensation under Article 40(4), but not at market value equivalent to Article 40(3) compensation

Reasoning

The petitioners occupied in good faith and fall within Article 40(4). However, compensation for an occupant without lawful title must be differentiated from full just compensation for a lawful title holder, otherwise there would be no distinction between a title holder and a squatter in good faith. The Kshs 400,000/= paid could not be faulted absent evidence of its inadequacy.

p. 15
06

Forced eviction and violation of dignity/security and international obligations

Holding

The eviction was justified and there is no evidence it was carried out inhumanely or in breach of the Constitution or international obligations

Reasoning

The Mau Forest is a critical water tower and ecological pillar; Article 69 obligates the State to protect the environment. Eviction of unlawful occupation was not arbitrary. Allegations of razing houses and slashing crops were unsupported by photographs, reports or medical evidence, and the valuation reports showed no destroyed structures. The burden of proof lay on the petitioners.

p. 17

Legal principles established

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  • Titles issued over land that was still a gazetted forest, before proper degazettement, are unlawfully acquired and cannot be protected
  • Article 40(6) of the Constitution and Section 26 of the Land Registration Act deny protection to unlawfully or unprocedurally acquired titles
  • Compensation for good-faith occupants without lawful title under Article 40(4) cannot be equated to full just compensation under Article 40(3)
  • Evictions to conserve an ecologically critical forest are justified and not arbitrary where justified, humane and accompanied by safeguards
  • The burden of proving inhumane or forced eviction lies on the person alleging it

Court orders

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  1. 1.The petition is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Constitutional petition under the Bill of Rights (Articles 20, 21, 27, 28, 29, 40, 42, 47 of the Constitution of Kenya, 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Clement Kipchirchir & 38 others v Principal Secretary Ministry of Lands Housing and Urban Development& 3 others [2015] KEELC 692 (KLR)", Case Analysis (2015). Constitutional Petition (Nakuru), filed 3 November 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/692/eng@2015-04-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.