Nicholas Kimutai Cheruiyot & 5 others v Kenya Forest Service & 2 others [2016] KEELC 341 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed landowners' claim that their Mau Forest-area titles were constitutionally protected, ruling titles issued before degazettement are invalid.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners' titles to the Nakuru/Likia parcels are protected by Article 40 of the Constitution
The titles were issued in 1997 before the Mau Forest was degazetted on 8 October 2001 vide Legal Notice No. 142 of 2001; they were irregularly issued and are excluded from Article 40 protection by Article 40(6).
The parcels formed part of the Mau Forest. Titles issued in 1997 predated the degazettement in 2001, so no lawful allocation could have existed when the titles were issued. The same issue was decided by the same court in Petition No. 42 of 2013 concerning the same Nakuru/Likia titles, which were held illegal and unprotected. The court adopted that reasoning here.
Whether the petition is res judicata
Yes; the validity of the titles was already determined in Petition No. 42 of 2013, so the court could not make fresh declarations of violation.
The court had previously held, in a suit involving the same Nakuru/Likia titles, that they were issued illegally and could not be protected. That prior determination bound the court in this petition, barring re-litigation of title validity and any declaration of violation of the petitioners' rights.
Whether the petitioners are entitled to declarations, conservatory orders and damages
No; given the prior decision on the titles, the declarations and orders sought could not be granted and the petition was dismissed.
Because the titles could not attract Article 40 protection, no violation of the petitioners' property rights or right to fair administrative action could be made out. The court dismissed the petition but suggested the parties consider the earlier offer of compensation of Kshs. 400,000/= per person, and made no order as to costs.
Legal principles established
#- Titles issued over forest land before the forest was degazetted are irregularly issued and cannot enjoy constitutional protection under Article 40(6)
- Article 40(6) of the Constitution does not protect titles irregularly acquired
- Where validity of the same titles has already been decided in a prior suit, the question is res judicata
Court orders
#- 1.The petition is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Articles 40 and 47 of the Constitution of Kenya (petition for enforcement of constitutional rights in the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Kimutai Cheruiyot & 5 others v Kenya Forest Service & 2 others [2016] KEELC 341 (KLR)", Case Analysis (2016). Petition No. 16 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/341/eng@2016-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.