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ELCDismissedEldoret ELC Petition No. 15 of 2013 (Consolidated with Eldoret ELC Petition No. 3 of 2018)· [2020] KEELC 3961 (KLR)

Yator & 23 others (Suing as Leaders of the Sengwer Community) v Attorney General & 15 others (Environment and Land Petition 15 of 2013 & Petition 3 of 2018 (Consolidated)) [2020] KEELC 3961 (KLR)

Environment and Land Court
13 May 2020
6,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This judgment of the Environment and Land Court at Eldoret (Kibunja, J) determined two consolidated petitions by members of the Sengwer Community concerning Embobut Forest: ELC Petition No. 15 of 2013 (sought orders restraining eviction, declarations under Articles 44 and 10, conservatory orders and mandamus against the National Land Commission) and ELC Petition No. 3 of 2018 (sought declarations of violations of Articles 26, 28, 29, 40, 42, 44, 56 and 10 arising from violent evictions, house-burnings and destruction of property, and a permanent injunction). The court framed five issues, principally whether Embobut Forest is public or community land. It found the forest was proclaimed a forest reserve in 1954 and gazetted a central forest in 1964, undisputed facts, and held it is public land under Article 62(1)(g); ancestral-land claims could not alter that status, following persuasive authorities including Ledidi Ole Tauta, Joseph Letuya and Kedong Ranch. The court found community members left the forest after receiving Kshs.400,000 per household under the 2009 Task Force process, and that any re-entry after the 18th February 2015 status quo order breached that order and rendered the 2018 petition sub-judice under Section 6 of the Civil Procedure Act. The January 2018 operations were held uncontroverted as targeted at armed criminals, and the petitioners failed to prove the alleged deaths, injuries and destruction, contrary to Section 107 of the Evidence Act. The court directed the community to the National Land Commission (historical land injustices) or licensing/benefit-sharing mechanisms under the Forest Conservation and Management Act. Both petitions were dismissed, each party bearing its own costs in view of the public-spirited nature of the proceedings.

Key legal issues

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01

Whether Embobut Forest is community land or public land

Holding

Embobut Forest, proclaimed a forest reserve in 1954 and gazetted as a central forest in 1964, is public land under Article 62(1)(g); ancestral occupation claims do not convert gazetted public forest into community land absent degazettement or lawful alienation.

Reasoning

The court traced the gazettement through Proclamation No. 26 of 1954 and Legal Notice No. 174 of 1964 and noted these were not disputed. Relying on persuasive superior court decisions (Ledidi Ole Tauta, Joseph Letuya, Kedong Ranch) it held that claims founded on ancestral/historical occupation do not defeat the constitutional classification of government forests as public land.

p. 13
02

Whether forceful evictions and rights violations by the Respondents were proved

Holding

The Petitioners failed to prove the alleged evictions, shooting deaths, injuries and destruction of property; the January 2018 operations were aimed at flushing out armed criminals and were justified.

Reasoning

Respondents' uncontroverted explanation was that the January 2018 operations targeted armed criminals, militia and illegal re-entrants. Community members had left the forest after receiving Kshs.400,000 per household under the 2009 Task Force process, and those who re-entered did so in breach of the 18th February 2015 status quo order. No documented evidence of deaths or injuries existed.

p. 14
03

Whether Article 10 national values were breached

Holding

No breach of Article 10 was established given the consultative Task Force process and compensation leading to voluntary relocation.

Reasoning

The court applied Anarita Karimi Njeru and related authorities requiring precision in pleading constitutional violations. The undisputed Task Force of 2009, sensitisation and payment of Kshs.400,000 per household showed consultation and participation, negating claims of decisions procured without free informed participation.

p. 14
04

Availability of alternative remedies for the Sengwer community

Holding

The community should pursue historical land injustice claims before the National Land Commission or seek licences/permits and benefit-sharing arrangements under the Forest Conservation and Management Act.

Reasoning

The court noted the National Land Commission's mandate under Article 67(2)(e) to investigate present or historical land injustices, and Sections 8(c)-(d), 44-46 and 52 of the Forest Conservation and Management Act providing for licences, benefit sharing and customary use of forest produce, as avenues for appropriate redress.

p. 15

Legal principles established

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  • A gazetted forest reserve that has not been degazetted or lawfully alienated is public land under Article 62(1)(g) of the Constitution, notwithstanding claims of ancestral occupation.
  • A party alleging constitutional violation bears the burden of proving it, failing which the claim fails.

Court orders

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  1. 1.The two petitions (ELC Petition No. 15 of 2013 and ELC Petition No. 3 of 2018) were dismissed in their entirety.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(6), 3, 10, 11, 19(c), 20, 21(1) and (3), 22(1), 23(1) and (3), 25(a), 26, 27, 28, 29, 40, 42, 43, 44, 45, 47, 56, 62, 63, 67, 165(3)(b) and (6), 248, 258
  • Forest Conservation and Management ActSections 7, 8, 30, 34, 44, 45, 46, 52, 62, 64
  • Community Land Act No. 27 of 2016definition of Community Land
  • National Land Commission Act No. 36 of 2012Section 5(2)(c) and (e)
  • Land Laws (Amendment) Act No. 28 of 2016deletion of Section 5(2)(e) NLC Act
  • Public Officers Ethics Actnot specified
  • Environmental Management and Co-ordination Act of 1999not specified
  • Civil Procedure Act Chapter 21Section 6 (sub-judice)
  • Evidence Act Chapter 80Section 107
  • Forest Ordinance (repealed)Proclamation No. 26 of 1954; Legal Notice No. 174 of 20th May, 1964

Cases cited (7)

  • Ledidi Ole Tauta & Others v Attorney General & 2 Others
    [2015] eKLR
  • Joseph Letuya & 21 Others v Attorney General & 5 Others
    [2014] eKLR
  • Perskire Stephen Muskasio & 14 Others v Kedong Ranch Limited & 8 Others
    Nakuru High Court Petition No. 57 of 2014
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Northern Nomadic Disabled Person's Organization (Nondo) v Governor County Government of Garissa & Another
    [2013] eKLR
  • James Kaptipin & 43 Others v The Director, Forest & 2 Others
    [2014] eKLR
Jurisdiction invoked
Articles 165(3)(b) and 258 of the Constitution of Kenya, 2010 (Enforcement of the Bill of Rights)

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, "Yator & 23 others (Suing as Leaders of the Sengwer Community) v Attorney General & 15 others (Environment and Land Petition 15 of 2013 & Petition 3 of 2018 (Consolidated)) [2020] KEELC 3961 (KLR)", Case Analysis (2020). Eldoret ELC Petition No. 15 of 2013 (Consolidated with Eldoret ELC Petition No. 3 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3961/eng@2020-05-13

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