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ELCPartially AllowedNot stated in the judgment as provided· [2016] KEELC 1181 (KLR)

Timothy Ingosi And 87 Others v Kenya Forestry Services & 2 others [2016] KEELC 1181 (KLR)

Environment and Land Court (High Court)
8 January 2016
AOAntony Ombwayo
4,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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An Eldoret court ruled that land inside a gazetted forest cannot be legally allocated unless it is first formally degazetted, so the settlers' titles are invalid.

What this practically means

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Executive summary

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The plaintiffs, beneficiaries of Land Parcel Block No. 7561/R at Turbo under an alleged Presidential grant issued in accordance with the Government Lands Act, sued the Kenya Forest Service, the Attorney General and the Commissioner of Lands. They sought a declaration of lawful ownership, orders compelling the Director of Adjudication to prepare a degazettement legal notice, compelling registration and issuance of titles, and prohibition against harassment of their occupation. The 1st defendant, by amended defence and counterclaim, asserted that the land is gazetted forest under Gazette Notice No. 145 of 17.5.64 and Legal Notice No. 167 of 12.8.1971, never degazetted, and that the allocation was fraudulent and illegal; it sought declarations that the land is forest land and the titles irregularly acquired. At trial, the 1st plaintiff and Sarah Mwihaki Kamau testified for the plaintiffs; Stanley Irungu Mwangi, Zonal Forest Manager, testified that no excision or revocation of the gazettement had occurred. The court held that since the land had never been excised from the forest by ministerial notice under section 4 of the repealed Forest Act, Cap 385, it was not available for allocation and the titles issued were questionable. By dint of Article 40(6), the plaintiffs could not invoke constitutional property protection over unlawfully acquired property. The suit was dismissed, the counterclaim allowed with declarations that the parcel is forest land irregularly allocated, but the declaration was suspended for two years while the State considers completing the due process of allocation, given the settlers' occupation. Each party was ordered to bear its own costs.

Key legal issues

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01

Availability of gazetted forest land for allocation

Holding

Land not excised from a gazetted forest by ministerial notice under section 4 of Cap 385 remained government/public land not available for allocation

Reasoning

The court applied section 4 of the repealed Forest Act, Cap 385, requiring ministerial gazette notice to declare a forest area ceased. Since the suit land was gazetted under Gazette Notice No. 145 of 17.5.64 and Legal Notice No. 167 of 12.8.1971 and never degazetted, it remained forest land and could not lawfully be alienated or allocated to private individuals.

p. 8
02

Effect of irregular allocation on title and Article 40 protection

Holding

Titles flowing from an irregular allocation are questionable and unprotected under Article 40(6), though the State may ratify the process given the settlers' occupation

Reasoning

The court found the allocation was effected without the planning and degazettement process required under the Government Lands Act and Physical Planning Act. Article 40(6) excludes unlawfully acquired property from constitutional protection. However, given schools, hospitals, churches and a police station on the land, the court directed the State to consider completing the due process of allocation.

p. 9

Legal principles established

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  • Land within a gazetted forest that has never been degazetted in accordance with section 4 of the Forest Act (Cap 385) is not available for allocation, and titles issued over it are questionable
  • Property found to have been unlawfully acquired enjoys no protection under Article 40 of the Constitution

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.The 1st defendant's counterclaim is allowed and a declaration issued that parcel No. 7561/R is forest land and therefore not available for allocation until due process is followed
  3. 3.A declaration that the allocation of land parcel 7561/R by the 3rd defendant to the plaintiffs was conducted through an irregularity and all titles issued over Block No. 7561/R were irregularly acquired
  4. 4.The Ministry of Environment and Natural Resources and the Kenya Forestry Services, in consultation with the Attorney General, to consider the plight of the plaintiffs with a view of completing the due process of allocation
  5. 5.The declaration that land parcel no 7561/R is forestland is suspended for two years as the plaintiffs wait for consideration by the Government of Kenya
  6. 6.Each party to bear its own costs

Authorities

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Legislation

  • Government Lands ActCap 280, sections 2, 3
  • Forest ActCap 385, section 4
  • Forest Act, 2005No. 7 of 2005, section 28, section 64
  • Physical Planning ActCap 286, section 2
  • Constitution of Kenya, 2010Article 40, Article 62
  • Kenya Independence Order in Council, 1963Schedule 2, sections 204 and 205
  • Constitution of Kenya (Amendment) Act, 1964sections 21, 22, 25 and 26

Cases cited (3)

  • Norbixin Kenya Limited v The Attorney General
    HCCC No. 1814 of 2002
  • Niaz Mohamed Jan Mohamed v Commissioner for Lands & 4 Others
    HCCC No. 423 of 1996
  • Kenya Industrial Estates Limited v Anne Chepsiror & 5 Others
    E&L No. 71 of 2013
Jurisdiction invoked
Original jurisdiction over land claims within the court's jurisdiction; the judgment states 'The jurisdiction of this Honourable court is admitted.'

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, "Timothy Ingosi And 87 Others v Kenya Forestry Services & 2 others [2016] KEELC 1181 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1181/eng@2016-01-08

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