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ELCDismissedNot stated in the judgment (petition dated 30th July, 2020)· [2021] KEELC 2791 (KLR)

Leonard Gikaru Wachira v Kenya Forest Service & 2 others [2021] KEELC 2791 (KLR)

Environment and Land Court
24 June 2021
2,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that titles to public forest land obtained through irregular allocation enjoy no constitutional protection, even decades later.

What this practically means

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Executive summary

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The petitioner, Leonard Gikaru Wachira, petitioned the Environment and Land Court at Nyahururu under Articles 19, 22, 23, 40, 47, 50, 62 and 64 of the Constitution, seeking a declaration that Legal Notice No. 177 of 14th August 2017 (gazetting Muruai forest) was unconstitutional and invalid in respect of his titles Nyandarua/Muruai/1575 and 1576, an order of certiorari to quash it, a permanent injunction against the Kenya Forest Service, damages for violation of his right to property, and costs. He claimed he was allocated original Parcel 1152 by letter of offer dated 20th June 2002 under the Muruai Settlement Scheme, subsequently subdivided into the suit parcels. The respondents countered that the land had been surrendered by the Director of Land Adjudication and Settlement to the Forest Department in a 1979 exchange for Mekaro and Leshau forest land; a notice of intention to declare it forest was published in 1993 under the then Forests Act and attracted no objections; and the petitioner's 2002 allocation was illegal and void ab initio. The court found the 1979 exchange uncontroverted, held the allocation irregular and unlawful, and held that the delayed 2017 gazettement was lawful since the land had been effectively reserved as forest upon expiry of the 1993 statutory notice. Invoking Chemey Investments Ltd v Attorney General and Article 40(6), the court held that irregularly acquired titles attract no constitutional protection. The petition was dismissed in its entirety with costs to the respondents.

Key legal issues

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01

Whether the suit properties were lawfully allocated to the Petitioner

Holding

The allocation was irregular and unlawful, hence void ab initio, because the land had been surrendered to the Forest Department in a 1979 exchange and reserved as forest.

Reasoning

The Respondents' evidence of a 1979 land exchange with the Forest Department was uncontroverted; the Petitioner never filed the further affidavit he was permitted to file. A notice of intention to declare the area a forest was published in 1993 under the then Forests Act and no objections were lodged, so the area effectively became reserved for forest before the Petitioner's 2002 allocation.

p. 3
02

Whether the 2nd Respondent violated the law by declaring Muruai forest as a gazetted forest

Holding

No violation; the declaration was lawful because the area had been effectively reserved as forest upon expiry of the 1993 statutory notice, and delay in gazettement did not cure the invalid allocation.

Reasoning

The Minister published notice of intention to declare Muruai Forest a forest area on 30th July 1993 under Section 4 of the Forests Act then in force; no objections were received. The Minister was not obliged to publish the declaration on the 29th day. Since the Petitioner's 2002 allocation was void ab initio, the 2017 Legal Notice lawfully gazetted already-reserved forest land.

p. 3
03

Whether the Petitioner is entitled to the reliefs sought

Holding

Not entitled to any relief, as courts do not protect irregularly or illegally acquired property, and Article 40(6) excludes unlawfully acquired property from protection.

Reasoning

Both substantive issues were decided against the Petitioner. Relying on Chemey Investments Ltd v Attorney General, the court held that sanctity of title does not shield fraud or illegality, and that a title document to irregularly acquired public property confers no entitlement to judicial remedies.

p. 4

Legal principles established

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  • A title must have a lawful and legitimate origin to be afforded legal protection; sanctity of title is not a vehicle for fraud, illegalities or unjust enrichment at public expense.
  • Article 40 constitutional protection of property is not absolute and does not extend to unlawfully acquired property.
  • Delay in gazettement of reserved forest land does not defeat the Government's interest in land already surrendered and reserved for forest purposes.

Court orders

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  1. 1.The Petitioner's petition dated 30th July, 2020 was dismissed in its entirety.
  2. 2.Costs of the petition were awarded to the Respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 22, 23, 40 (including Article 40(6)), 47, 50, 62, 64
  • Land Registration ActNot specified
  • Fair Administrative Action ActNot specified
  • Forest Conservation and Management Act, 2016Section 77(1); Third Schedule
  • Forests Act (Cap. 385)Sections 4(2), 9(2), 28
  • Civil Procedure Act (Cap 21)Section 27

Cases cited (7)

  • Evelyn College v Director of Children’s Department & Another
    [2013] eKLR
  • Republic v Fazul Mohamed & 3 Others ex parte Okiyah Omtatah Okoiti
    [2018] eKLR
  • Timothy Ingosi & 87 Others v Kenya Forest Service & 2 Others
    [2016] eKLR
  • Adan Abdirahani Hassan v 2 Others v Registrar of Lands Kilifi ex parte Daniel Ricci
    [2013] eKLR
  • Funzi Island Development Ltd & 2 Others v County Council of Kwale
    [2014] eKLR
  • Chemey Investments Ltd v Attorney General & 2 Others
    [2018] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Articles 19, 22, 23, 40, 47, 50, 62 & 64 of the Constitution of Kenya, 2010 (petition invoking the constitutional right to property and related provisions)

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, "Leonard Gikaru Wachira v Kenya Forest Service & 2 others [2021] KEELC 2791 (KLR)", Case Analysis (2021). Not stated in the judgment (petition dated 30th July, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2791/eng@2021-06-24

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