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ELCDismissedPetition No. 16 of 2012· [2016] KEELC 341 (KLR)

Nicholas Kimutai Cheruiyot & 5 others v Kenya Forest Service & 2 others [2016] KEELC 341 (KLR)

Environment and Land Court of Kenya
12 October 2016
1,482 words in judgment
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The bottom line

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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

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Executive summary

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Six petitioners, suing on behalf of about 29 others, claimed to be the legal proprietors of 36 parcels in Nakuru/Likia extension, holding title deeds issued in 1997 and in occupation since then. They alleged that on about 23 April 2012 officers of the Kenya Forest Service entered the land, destroyed crops and began demarcating and surveying it without audience, notice or compensation. They sought a declaration that the entry was unconstitutional under Article 40, a conservatory order restraining interference with the parcels, damages (counsel quantified general damages at Kshs. 5,000,000/=) and costs. The Kenya Forest Service, through the affidavit of Inspector Nancy Maina, contended that the parcels were illegal extensions of the Mau Forest; that titles issued in 1997 predated the degazettement of the forest on 8 October 2001 vide Legal Notice No. 142 of 2001; that the titles were products of disobedience of court orders; and that Article 40 does not protect illegally acquired property, the greater public interest requiring conservation. The court, relying on its own earlier decision in Petition No. 42 of 2013 (Clement Kipchirchir & 38 Others) involving the same Nakuru/Likia titles, held that titles issued before degazettement were irregularly issued and excluded from Article 40 protection by Article 40(6). The question of the validity of the titles was therefore res judicata, and no declaration of violation could be made. The petition was dismissed with no orders as to costs, the court observing that the parties might consider the earlier offer of compensation of Kshs. 400,000/= per person.

Key legal issues

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01

Whether the petitioners' titles to the Nakuru/Likia parcels are protected by Article 40 of the Constitution

Holding

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).

Reasoning

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.

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02

Whether the petition is res judicata

Holding

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.

Reasoning

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.

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03

Whether the petitioners are entitled to declarations, conservatory orders and damages

Holding

No; given the prior decision on the titles, the declarations and orders sought could not be granted and the petition was dismissed.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of the Republic of KenyaArticle 40
  • Constitution of the Republic of KenyaArticle 40(6)
  • Constitution of the Republic of KenyaArticle 47
  • Legal Notice No. 142 of 2001degazettement of Mau Forest, 8 October 2001

Cases cited (3)

  • Clement Kipchirchir & 38 Others vs Principal Secretary, Ministry of Lands, Housing and Urban Development
    Petition No. 42 of 2013
  • Nakuru Misc. Application No. 60 of 2011
  • Nairobi High Court Misc Application No. 421 of 2002
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.