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ELCDismissedNot stated in judgment· [2017] KEELC 3724 (KLR)

Joseph M. Kurui & 4 others v Ministry of Forestry & Wildlife & 3 others [2017] KEELC 3724 (KLR)

High Court of Kenya
25 January 2017
AOA. Ombwayo
3,421 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Three petitioners, purporting to act for themselves and 259 other squatters of Kipkunur and Kewabus Forests within the Embobut Forest area of the Cherangani Water Tower, Elgeyo Marakwet County, petitioned against four government respondents. They complained that a 2009 task force constituted to identify genuine squatters for a resettlement and compensation programme excluded them, compiled lists containing bogus squatters, and failed to give reasons for their exclusion. They sought declarations that their exclusion was unconstitutional, prohibition of the task force recommendations, a permanent injunction protecting their occupation, mandamus for a fresh all-inclusive inquiry, and damages for decades of evictions and property losses. The Attorney General opposed, contending lack of locus standi, that Embobut is a gazetted forest never degazetted so occupation was illegal, that compensation was ex-gratia on humanitarian grounds, and that loss was unproved. Ombwayo J canvassed the locus standi jurisprudence under Articles 22 and 258 of the Constitution and the Anarita Karimi Njeru particularity rule as relaxed by Mumo Matemu. On the merits the court held the petitioners failed to prove they were genuine squatters discriminated against; their self-prepared lists were unverifiable and no evidence showed residence in the forest. Crucially, the court held that even genuine squatters have no right to reside in gazetted forests and cannot be compensated as squatters in a government forest. The petition was dismissed with no order as to costs.

Key legal issues

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01

Locus standi under the 2010 Constitution

Holding

Articles 22 and 258 confer wide standing on any person, including one acting in the public interest, and the court should not place hurdles on access to courts where litigation is bona fide

Reasoning

The court adopted the approach in Trusted Society and Mumo Matemu that the new Constitution broadens access to justice; a petition should be determined on its merits where the issues can be deciphered from the pleadings, provided the litigant acts bona fide and not for personal gain or oblique motives.

p. 6
02

Whether the petitioners proved discrimination in exclusion from the resettlement list

Holding

The petitioners failed to prove they were genuine squatters excluded in favour of bogus ones; the lists were self-prepared and unverified, and no evidence showed they resided in Embobut Forest

Reasoning

The court found the petitioners did not demonstrate differential treatment between genuine and bogus squatters, did not produce the list of paid non-genuine squatters, and the left-out list was prepared by themselves. Without proof of residence in the forest, the discrimination claim collapsed.

p. 6
03

Right to compensation for occupation of a gazetted forest

Holding

Even genuine squatters have no right to reside in gazetted forests and cannot be compensated for squatting in a government forest; compensation was ex-gratia on humanitarian grounds

Reasoning

Embobut Forest remains a gazetted forest never degazetted. Occupation is therefore unlawful and compensation flows not as of right but on ex-gratia humanitarian grounds, so the petitioners could not claim compensation or an injunction protecting that occupation.

p. 6

Legal principles established

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  • A petitioner enforcing fundamental rights must set out with particularity the specific right violated and the manner of violation
  • Under the 2010 Constitution the test for constitutional pleadings is substantive, not requiring mathematical precision, provided proper notice is given to the adversary
  • Squatters have no right to reside in gazetted government forests and cannot be compensated as squatters therein

Court orders

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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 3
  • Constitution of Kenya, 2010Article 10(1)(2)
  • Constitution of Kenya, 2010Article 22(1) & (2)
  • Constitution of Kenya, 2010Article 258(1) & (2)
  • Repealed Constitution of KenyaSection 84(1)

Cases cited (3)

  • Anarita Karimi Njeru v Republic (No. 1)
    [1979] 1 KLR 154
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    Civil Appeal No. 290 of 2012 [2013] eKLR
  • Trusted Society of Human Rights Alliance v AG & 2 Others
    [2012] eKLR
Jurisdiction invoked
Articles 22(1) & (2) and 258(1) & (2) of the Constitution of Kenya, 2010 - enforcement of fundamental rights and freedoms

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, "Joseph M. Kurui & 4 others v Ministry of Forestry & Wildlife & 3 others [2017] KEELC 3724 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3724/eng@2017-01-25

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