Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others [2018] KEELC 4490 (KLR)
The bottom line
#The Environment and Land Court dismissed clan members' bid for Embobut Forest compensation, holding that compensating illegal forest occupiers is a political question, not a legal one.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the issues raised in the petition are justiciable
- 2.Whether the petitioners had capacity to institute the suit as representatives of the Kasugut clan without a signed authority
- 3.Whether the petitioners' rights under Articles 19, 27, 40, 47, 48 and 50(1) of the Constitution were violated by their omission from the harmonized registers
- 4.Whether an order of certiorari should issue to quash the harmonized registers of Embobut Forest evictees
- 5.Whether the petitioners are entitled to be declared genuine evictees/IDPs and compensated and resettled
Key legal issues
#Justiciability of the claims concerning the harmonized registers
The issues raised were non-justiciable political questions, since compensation of illegal forest dwellers is a politically motivated decision
The court held that dwelling in the gazetted Embobut Forest is illegal and any decision to compensate or resettle forest dwellers is politically motivated. Attempting to test the legality of the register would therefore wade into non-justiciable political territory; the genuineness of an illegal forest dweller is itself non-justiciable.
Representative capacity of the petitioners
The petitioners had capacity under Article 22(2)(b) and (c) without a signed authority from clan members
The court distinguished submissions invoking Order 1 Rules 8 and 13 of the Civil Procedure Rules, holding that constitutional petitions under the Mutunga Rules are governed by Article 22, which permits any person to sue on behalf of a group or class, and Article 260's expansive definition of 'person'. The Civil Procedure Rules do not apply to such proceedings.
Alleged violations of Articles 27, 40, 47, 48 and 50(1)
No violation was established; equality and property claims fail because petitioners were not in legal occupation and did not claim ownership
The court found that the equality claim fails because the benefit sought is not a legal benefit flowing from illegal occupation; Article 40 does not arise since the petitioners did not claim land ownership; and the profiling was resolved politically rather than by application of law, so no fair administrative action claim was established.
Whether certiorari should issue to quash the registers
No grounds for certiorari were demonstrated; no jurisdictional excess, procedural impropriety or irrationality was proved, and public participation was evidenced
Certiorari issues where a body acts without or beyond jurisdiction, with procedural impropriety or irrationally. The petitioners did not clearly establish these grounds, did not show denial of hearing, and the respondents demonstrated public participation in preparing the register. The register had also been implemented with over Kshs.1.5 billion paid out.
Legal principles established
#- The harmonization of registers of forest evictees for compensation is a political question, not a legal question, and therefore non-justiciable
- No person should benefit from an illegality; occupation of a gazetted forest being illegal cannot ground compensation
- Under Article 22(2)(b) and (c) of the Constitution, a person may institute proceedings as a member of, or in the interest of, a group or class of persons without a signed representative authority; the Civil Procedure Rules do not apply to proceedings under the Mutunga Rules
Court orders
#- 1.The petition is dismissed
- 2.No order as to costs, each party bearing own costs, given the petitioners prosecuted the petition in public interest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 165(3) of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#Order of certiorari quashing the harmonized registers of Embobut Forest evictees
The issue was a political question, non-justiciable, and no ground for quashing was demonstrated; the register had also been implemented
Declaration that the petitioners are genuine Embobut Forest evictees/IDPs entitled to compensation and resettlement
The petitioners failed to demonstrate occupation of the forest or violation of rights; occupation of a gazetted forest is illegal and no person should benefit from an illegality
Costs
No order as to costs - the petition was dismissed with no order as to costs as the petitioners were prosecuting the petition in public interest
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I do find that the harmonization of the register of the Embobut forest evictees or the internally displaced persons was a political question and not a legal question as dwelling in the forest is illegal and any decision to either compensate or resettle the forest dwellers is a politically motivated decision
The benefit sought by the petitioners is not a legal benefit because they were occupying the forest illegally and that no person should benefit from an illegality.
The petitioners were in court properly pursuant to the provisions of Article 22(b) and (c) of the Constitution of Kenya, 2010.
Ultimately, the petition is found without substance as the petitioners have raised non-justiciable issues and have not even demonstrated that they were in the occupation of the forest albeit illegally and therefore no evidence of violation of rights. The same is dismissed with no order as to costs as the petitioners were prosecuting the petition in public interest.
Issues in the judgment
#The judgment uses two spellings of the clan name interchangeably
Paragraph numbering is defective in the analysis section (repeats 'liv', 'lv' sequence and skips xlviii)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others [2018] KEELC 4490 (KLR)", Case Analysis (2018). not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4490/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.