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ELCPartially AllowedKericho ELC Constitutional Petition No. 4 of 2017· [2018] KEELC 2030 (KLR)

John K.Keny & 7 others v Principal Secretary Ministry of Lands, Housing and Urban Development & 4 others [2018] KEELC 2030 (KLR)

Environment and Land Court
27 July 2018
JOJ. M. Onyango
6,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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The court confirmed Ogiek evictees' rights were violated but routed their compensation and resettlement through the National Land Commission, not new lawsuits.

What this practically means

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Executive summary

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Seven Petitioners, acting for themselves and the Ogiek Independent Council of South West Mau Forest (Konoin-Bomet), petitioned the Kericho Environment and Land Court claiming that their 2009 eviction from South Western Mau Forest, following the 2001 de-gazettement gazette notices, violated their rights to dignity, security, property, equality, fair administrative action, fair hearing and access to justice. They sought declarations, re-occupation of their parcels, mandamus, quashing of the de-gazettement, setting aside of allocations, compensation at market value and damages. The Respondents opposed, contending the suit was res judicata given the prior judgments in Joseph Letuya, Clement Kipchirchir and the African Court Ogiek case, that Mau Forest is public land under Article 62, that the Petitioners proved no proprietary interest and could not invoke the 2010 Constitution for a pre-2010 cause of action. The court framed six issues. It held the suit res judicata, interpreting the doctrine widely given the recurrent, politically charged Mau evictions, and found the three prior decisions to be judgments in rem binding on the Petitioners, the African Court judgment being binding under Article 2(6). Out of caution the court also found the Petitioners had proved violations of their rights. However, it declined the declaratory and compensatory reliefs, instead directing the National Land Commission to register and resettle the evicted Ogiek community members within ten months in line with the 2009 Task Force Report. Each party was ordered to bear its own costs. The petition was partially allowed in the sense of the NLC directions, though the substantive claims were resolved through res judicata.

Key legal issues

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01

Res judicata and judgments in rem

Holding

The Petition is res judicata; the prior decisions in Joseph Letuya, Clement Kipchirchir and the African Court Ogiek case are judgments in rem binding on the Petitioners

Reasoning

Applying Section 7 of the Civil Procedure Act and the four-part test in Uhuru Highway Development v Central Bank, the court found the Petitioners, as members of the Ogiek community from Konoin-Bomet, are part of the wider Ogiek community whose eviction from the Mau Forest was adjudicated in the three prior suits. Given the recurrent nature of Mau evictions and the binding African Court judgment under Article 2(6), res judicata was to be interpreted widely.

p. 7
02

Violation of the Petitioners' rights

Holding

The Petitioners proved violation of their rights (property, economic and social rights, environment, non-discrimination, fair administrative action) by the eviction without due process or compensation

Reasoning

Despite the finding on res judicata, the court determined the substantive issue out of caution. The Petitioners were evicted in 2009 following the 2001 gazettement of South West Mau Forest as forest reserve, their houses were burnt and plantations destroyed, and they were neither compensated under Article 40(3)(b)(i) read with Section 111 of the Land Act nor resettled, while communities evicted from other forests were compensated and resettled, amounting to discrimination.

p. 11
03

Appropriate remedy

Holding

The Petitioners were directed to pursue their compensation remedies with the National Land Commission, which was ordered to identify and register the evicted Ogiek community members and identify resettlement land

Reasoning

Because the courts and the African Court had already set out the manner of redress for persons evicted from the Mau Forest, the court restated those authorities and directed the National Land Commission, as the body mandated to manage and allocate public land under the Land Act 2012, to identify and register the affected Ogiek community members and identify resettlement land within 10 months, in line with the 2009 Task Force Report.

p. 11

Legal principles established

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  • The doctrine of res judicata applies to constitutional petitions and must be interpreted widely where prior suits by members of the same community have adjudicated the same subject matter
  • Decisions such as the African Court on Human and Peoples' Rights judgment on Ogiek eviction are judgments in rem binding on subsequent litigants with a bearing on the property rights of Mau Forest occupants
  • The decision of the African Court on Human and Peoples' Rights is binding on Kenyan courts by virtue of Article 2(6) of the Constitution

Court orders

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  1. 1.The 2nd Respondent (National Land Commission) is directed, within 10 months from the date of judgment, in consultation with the chiefs and the Ogiek Council of elders, to identify and open a register of members of the Ogiek community who were evicted from South Eastern/South Western Mau Forest specifically Konoin-Bomet, and to identify land for resettlement of members not resettled in line with the Report of the Government Task Force on the Conservation of the Mau Forest Complex 2009
  2. 2.A copy of the judgment to be served upon the Chairman of the National Land Commission for necessary action
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2(6), 19, 21, 26, 27, 28, 29(c) and (f), 40, 42, 43, 47, 48, 50, 62, 63, 65
  • Civil Procedure ActSection 7
  • Land Act No. 6 of 2012Section 111
  • Fair Administrative Action ActSections 4(1), 4(3)(b)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 3(8)

Cases cited (12)

  • Uhuru Highway Development vs Central Bank
    [1996] LLR CAK 2126
  • E.T v Attorney General and Another
    (2012) eKLR
  • Okiya Omtatah Okoiti v CAK & 14 Others
  • Njangu v Wambugu & Another
    Nrb HCCC No. 2340 of 1991
  • Okiya Omtatah Okoiti & Another v Attorney General & 2 Others
    Petition No 593 of 2013
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Edward R-Ouko vs Speaker of the National Assembly & 4 others
    (2017) eKLR
  • Kamuyu and others vs Attorney General & others
    (2007) IEA 116
  • Japheth Nzila Muangi vs Kenya Safari Lodges & Hotels Ltd
    (2008) eKLR
  • Joseph Letuya & Others v Attorney General & Others
    Nairobi ELC Civil Suit No. 821 of 2012 (O.S)
  • Clement Kipchirchir & Others v P.S Ministry of Lands & Others
    Nakuru ELC Petition No. 42 of 2013
  • African Court on Human and Peoples Rights v Republic of Kenya
    Application No. 006 of 2012
Jurisdiction invoked
Original constitutional petition jurisdiction under Article 22 and 23 of the Constitution of Kenya 2010 (Bill of Rights enforcement)

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, "John K.Keny & 7 others v Principal Secretary Ministry of Lands, Housing and Urban Development & 4 others [2018] KEELC 2030 (KLR)", Case Analysis (2018). Kericho ELC Constitutional Petition No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2030/eng@2018-07-27

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