Peter Kitelo Chongeiywo & 10 others (suing as representatives of the Ndorobo/Ogiek Community of Chepkitale, Mt. Elgon) v Attorney General & 4 others; Kenya National Commission on Human Rights (Amicus Curiae) [2020] KEELC 2404 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled the Ogiek community's eviction case is so significant it must be heard by three judges appointed by the Chief Justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition raises a substantial question of law under Article 165(4) of the Constitution
Yes. The Petition raises weighty issues of general public importance touching on interpretation of Article 63(2)(d), indigenous community land rights, environmental conservation and violation of Bill of Rights provisions, warranting certification for hearing by an enlarged bench of three Judges.
The Court adopted the Chunilal v Mehta guidelines as applied in NASA v IEBC by Mativo J, considering whether the question affects substantial rights, is of general public importance, is open or novel, and is not free from difficulty. The Court found that the Petition involves forced eviction of the Chepkitale Ogiek from Mt Elgon Forest, questions the inclusion of Mt Elgon Forest in the 3rd Schedule of the Forest Conservation and Management Act as against Articles 40 and 63(2)(d), and raises rights under Articles 26, 28, 29, 40, 42, 44 and 56. These affect not only the parties but the larger Chepkitale Ogiek Community, engaging Article 165(3)(b) and (d).
Whether the Respondents' submissions in opposition to the application amounted to a proper response
No. Submissions are not evidence and do not amount to a preliminary objection, replying affidavit or grounds of opposition under Order 51 Rule 14(1) of the Civil Procedure Rules, so the application was effectively unopposed.
The Court noted that no Respondent filed a notice of preliminary objection, replying affidavit or statement of grounds of opposition as required by Order 51 Rule 14(1) of the Civil Procedure Rules. The 1st and 3rd Respondents filed only submissions through State Counsel. Relying on Daniel Toroitich Arap Moi v Mwangi Stephen, the Court held that submissions are merely 'marketing language' and cannot substitute for evidence or constitute a formal response to an application.
Legal principles established
#- Submissions do not constitute evidence and cannot take the place of a reply to an application
- An unopposed application for certification under Article 165(4) must still be determined on its merits by the Court seized of it
- Certification under Article 165(4) requires a substantial question of law under Article 165(3)(b) or (d), and the factors in Chunilal v Mehta guide that determination
Court orders
#- 1.The Petition is referred to the Honourable Chief Justice to empanel a bench of three (3) Judges to hear and determine it in accordance with Article 165(4) of the Constitution
- 2.No orders as to costs
- Jurisdiction invoked
- Article 165(4) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kitelo Chongeiywo & 10 others (suing as representatives of the Ndorobo/Ogiek Community of Chepkitale, Mt. Elgon) v Attorney General & 4 others; Kenya National Commission on Human Rights (Amicus Curiae) [2020] KEELC 2404 (KLR)", Case Analysis (2020). Petitioners' Notice of Motion dated 18th December 2019 (in the Amended Petition dated 8th April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2404/eng@2020-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.