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ELCPartially AllowedEnvironment & Land Petition 12 & 13 of 2018 (Consolidated)· [2022] KEELC 13468 (KLR)

Mapelu & 13 others v Cabinet Secretary, Ministry of Lands & Physical Planning & 164 others; Nyayo Tea Zones Development Corporation & 2 others (Interested Parties)

Environment and Land Court of Kenya
13 October 2022
27,587 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~110 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled Maasai Mau Forest land titles, upheld the evictions, and ruled no compensation is owed to anyone who held those titles.

What this practically means

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Executive summary

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Two consolidated constitutional petitions were filed by Joseph Kimeto Ole Mapelu and others and by Prof Paul Kiprono Chepkwony challenging the government's eviction of occupants and alienation of land within the former Reiyo, Enakishomi, Sisiyan, Enoosokon and Nkaroni Group Ranches bordering the Maasai Mau Forest. The petitioners claimed lawful titles, violations of articles 10, 27, 28, 35, 40, 43, 47 and 63, and sought declarations, injunction, prohibition and compensation. The state cross-petitioned for cancellation of titles created over land in excess of the adjudicated acreage, alleging unlawful encroachment onto forest land. A three-judge bench (Mutungi, Kullow and Ong'ondo JJ, the latter replacing the recused Munyao J) held that the adjudication registers became final under section 27 of the Land Adjudication Act and the Chief Land Registrar had no authority to alter them; the unexplained exponential increase in acreage was unlawful and constituted encroachment onto trust land/community forest that was never lawfully set apart or de-gazetted. Titles derived from the excess land were null and void and unprotected under article 40(6) and section 26 of the Land Registration Act, even for bona fide purchasers. The evictions were justified, notices were issued and no force was proved; no compensation was payable. Both petitions were dismissed; the cross-petition was allowed with declarations of invalidity, cancellation of titles, an order to vacate within 90 days, a boundary survey within 12 months and erection of a perimeter fence within 24 months. Each party was ordered to bear its own costs in light of the public interest nature of the litigation.

Key legal issues

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01

Authority of the Chief Land Registrar to alter an adjudication register

Holding

The Chief Land Registrar had no authority to alter the adjudication register; the purported amendments increasing the group ranches' acreage were unlawful, illegal and null and void.

Reasoning

Under section 27 of the Land Adjudication Act, the adjudication register becomes final once objections are determined and the register is submitted to the Chief Land Registrar. Alterations could only be made by the adjudication officer under section 27(1) or the Director of Land Adjudication after a Ministerial appeal under section 29(3). The mutation supporting the amendment was never exhibited, so the amendment could not be verified or justified. Rectification powers under the Registered Land Act or Land Registration Act cannot extend to adjudication registers.

p. 3
02

Status of Maasai Mau Forest and procedure for alienating forest/trust land

Holding

Maasai Mau was unalienated trust land/community forest under the Narok County Council; it could not be alienated without a formal process of setting apart under section 117 of the repealed Constitution and section 13 of the Trust Land Act, or de-gazettement under the Forest Act.

Reasoning

No declaration or resolution by the National Government or County Council of Narok set apart or excised any part of the forest for human settlement. The elaborate statutory procedure for setting apart trust land and de-gazetting forest land was never followed, so the additional land allocated to the group ranches constituted unlawful encroachment onto forest land and any titles over it were null and void.

p. 35
03

Validity of titles derived from unlawfully acquired land

Holding

Titles created from the excess land were invalid and liable to cancellation; the group ranches could not pass good title they never had, and article 40(6) denies protection to unlawfully acquired property.

Reasoning

The petitioners never explained how the adjudicated acreage of 3,070.54 hectares grew to over 18,000 hectares. Article 40(6) and section 26(1) of the Land Registration Act permit challenge of titles acquired illegally, unprocedurally or through corruption. Even innocent third-party purchasers acquire void titles and must seek recourse against the allocators or sellers.

p. 44
04

Whether the evictions were unlawful and violated constitutional rights

Holding

The evictions were justified and lawful; notices were issued, most occupants vacated voluntarily, and no evidence of force or inhumane conduct was adduced.

Reasoning

Section 152G of the Land Act and the Land Regulations, 2017 prescribe mandatory eviction procedures. Notices were issued and the operation 'Okoa Msitu Wa Mau' assisted occupants to vacate. The test is whether the respondents acted civilly, reasonably and humanely; the petitioners led no evidence of force, injury or wanton destruction, so no violation of articles 10, 28, 40, 43 or 47 was established.

p. 41
05

Entitlement to compensation

Holding

Neither the petitioners nor the interested parties were entitled to compensation or alternative land; article 40(4) was inapplicable because the land always belonged to the state as a public forest.

Reasoning

Compensation presupposes lawful ownership or a violation of rights in the manner of eviction. Since the land was illegally acquired and the evictions lawful, no compensation arises. Article 40(4) concerns occupants in good faith of land acquired by the state under article 40(3), which was not invoked here as the land was already public.

p. 5
06

Conservation and delineation of the Maasai Mau Forest

Holding

The forest must be delineated, conserved and protected as a critical water tower under articles 42 and 69 of the Constitution.

Reasoning

The state and every person are obligated to conserve the environment for present and future generations. The court directed a ground survey to fix the forest boundary and a perimeter fence to be maintained by the Kenya Forest Service, to ensure the forest is protected and conserved for posterity.

p. 6

Legal principles established

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  • The Chief Land Registrar has no mandate or jurisdiction to alter or amend an adjudication register submitted under section 27(c) of the Land Adjudication Act; rectification powers under section 142 of the repealed Registered Land Act or section 79 of the Land Registration Act do not extend to adjudication registers.
  • Gazetted forest land and trust land can only be alienated after a valid statutory process of de-gazettement or setting apart; titles issued over land alienated without such process are null and void.
  • Property unlawfully acquired is not protected under article 40(6) of the Constitution; titles acquired fraudulently, unprocedurally or through corruption may be challenged under section 26(1) of the Land Registration Act.
  • A registered proprietor whose root of title is under challenge must prove the legality of the acquisition, not merely produce the title instrument.
  • Titles derived from unlawfully acquired land cannot acquire validity even in the hands of a bona fide third-party purchaser without notice; such purchasers' recourse is against those who allocated or sold the land.
  • Evictions from unlawfully occupied land are lawful if conducted humanely, with notice and in accordance with section 152G of the Land Act and the Land Regulations, 2017.

Court orders

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  1. 1.Declaration that the subdivision of Reiyo, Enakishomi, Sisiyian, Enoosokon and Nkaroni Group Ranches beyond the initial acreage at the time of adjudication and first registration was irregular, unlawful, null and void and conferred no proprietary rights on the respondents to the cross petition
  2. 2.Declaration that the subdivided land over and above the initial registered acreage comprised part of Maasai Mau Forest reserve and should be restored to the forest
  3. 3.Order that the land titles created following the subdivisions were obtained illegally, unlawfully and unprocedurally, a nullity ab initio, and are nullified, cancelled and revoked
  4. 4.Respondents in the cross petition still in the forest land ordered to vacate with immediate effect and in any event within 90 days failing which an order of eviction shall issue
  5. 5.Respondents/cross petitioners in conjunction with the County Government of Narok directed to carry out a ground survey delineating and establishing the Maasai Mau Forest boundary by fixing beacons and/or permanent features within twelve months
  6. 6.Once the boundary is established, respondents/cross petitioners to erect a perimeter fence on the portion of the forest abutting the adjudicated land within 24 months, to be maintained by the Kenya Forest Service
  7. 7.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010articles 10, 27(4)(8), 28, 35(1), 40, 42, 43, 47, 53, 63(4)(5), 67(2), 69, 117 (repealed Constitution)
  • Evidence Actsections 106A, 106B, 107, 108
  • Forest Conservation and Management Act, 2016section 34
  • Land (Group Representatives) Actin general (repealed)
  • Land Act, 2012section 152G; Part VIII
  • Land Adjudication Actsections 3(2), 5, 23(5), 26, 27, 28, 29(3)
  • Land Consolidation Actsections 3(2), 26, 29(1)
  • Land Registration Act, 2012sections 26, 79, 80
  • National Land Commission Act, 2012sections 14(6)(7), 40(6)
  • Survey Actsection 32
  • Wildlife Conservation and Management Actsection 6
  • Trust Land Actsection 13
  • Forests Act (repealed)sections 4, 27, 28
  • Registered Land Act (repealed)sections 19(1), 142, 143
  • Environment and Land Court Actsection 18(a)(iv)
  • Land Regulations, 2017 (L.N. 280/2017)regulations 63 to 70
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rule 24(1)
  • International Covenant on Civil and Political Rights (ICCPR), 1966
  • International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
  • Universal Declaration of Human Rights (UDHR), 1948

Cases cited (20)

  • Arthi Highway Developers Limited v West End Butchery Limited & others
    Civil Appeal 246 of 2013; [2015] KECA 816 (KLR)

    Standard of proof of fraud required to vitiate title (relied on by petitioners)

  • Chemei Investment v Attorney General & others
    Petition 94 of 2005

    Constitution protects integrity and rule of law over indefeasibility of title

  • Githinji, Elizabeth Wambui v Kenya Urban Roads Authority & 4 others
    Civil Appeals 156 & 160 of 2013 (Consolidated); [2019] eKLR

    Nullification of titles of land grabbers pleading indefeasibility

  • Henry Muthee Kathurima v Commissioner of Lands & Director National Youth Service
    Civil Appeal 8 of 2014; [2015] KECA 892 (KLR)

    Indefeasibility of title is subject to article 40(6); estoppel cannot protect unlawfully acquired property

  • Ingosi, Timothy & 87 others v Kenya Forestry Services & others
    Environment & Land Case 479 of 2012; [2016] KEELC 1181 (KLR)

    Forest land not available for allocation without de-gazettement and due process

  • Kalyasoi Farmer Co-Operative Society & 6 others v County Council of Narok
    Civil Case 664 of 2005; [2005] KEHC 564 (KLR)

    Prior case relied on by petitioners as affirming their ownership rights

  • Kenya Medical Supplies Agency (KEMSA) v Mavji Kanji Hirani & 8 others
    Civil Appeal 115 of 2017; [2018] KECA 485 (KLR)

    Article 40 rights do not extend to unlawfully acquired property

  • Kenya National Highway Authority v Shalien Masood Mughal & 5 others
    Civil Appeal 327 of 2014; [2017] KECA 465 (KLR)

    Approval of Maraga J's dicta on nullifying titles of land grabbers

  • Kipchirchir, Clement & 38 others v Principal Secretary Ministry of Lands & Urban Development & 3 others
    Petition 42 of 2013; [2015] eKLR

    Unlawfully acquired titles cannot shelter under article 40; no compensation for unlawfully acquired land; evictions permissible if justified and humane

  • Letuya, Joseph & 21 others v Attorney General & 5 others
    ELC Civil Suit 821 of 2012; [2014] eKLR

    Allocation of forest land requires statutory excision process before allocation

  • Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
    Petition 3 of 2018; [2021] KESC 34 (KLR)

    Relied on by petitioners on evictions and right to housing

  • Mring'a, Stephen & 2 others v County Council of Taita Taveta & 2 others; Interested Parties Banton Fundi Sareli & 7 others
    Constitutional Petition 925 of 2006; [2016] KEHC 2554 (KLR)

    Explained (trust land/setting apart principles)

  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal 239 of 2009; [2013] KECA 94 (KLR)

    A registered proprietor must prove legality of acquisition beyond the title instrument

  • Mureithi & 2 others v Attorney General & 4 others
    Civil Appeal 158 of 2005; [2006] KEHC 14 (KLR)

    Nyamu J's dicta on nullifying land grabbers' titles pleading indefeasibility

  • NK Arap Ng'ok, Joseph v Moijo Ole Keiwua & 4 others
    Civil Application 60 of 1997; [1997] KECA 1 (KLR)

    Standard of proof of fraud that would vitiate title

  • Republic v Minister for Transport & Communication & 5 others ex parte Waa Ship Garbage Collector & 15 others
    Civil Appeal 617 of 2003; [2004] KEHC 10 (KLR)

    Maraga J's dicta that courts should nullify titles of land grabbers

  • Shah, Milan Kumar & 2 others v County Council of Nairobi & another
    Civil Suit No 1024 of 2005; [2005] eKLR

    Indefeasibility extends only to titles created in accordance with law and not procured through a cartel disregarding law and public interest

  • Maritime Electronic Co Ltd v General Dairies Ltd
    [1937] All ER 748

    No estoppel against a statute

  • Tarmal Industries Ltd v Commissioner of Lands & Excise
    [1968] EA 4H

    No estoppel against a statute

  • Funzi Island Development Ltd & 2 others v County Council of Kwale & 2 others
    [2014] eKLR

    A court cannot sanction an illegality or approve an irregularly obtained title on the basis of indefeasibility

Jurisdiction invoked
Original constitutional petition jurisdiction under article 22 and 23 of the Constitution read with the Environment and Land Court Act (three-judge bench empanelled by the Chief Justice as a matter of great public importance)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mapelu & 13 others v Cabinet Secretary, Ministry of Lands & Physical Planning & 164 others; Nyayo Tea Zones Development Corporation & 2 others (Interested Parties)", Case Analysis (2022). Environment & Land Petition 12 & 13 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13468/eng@2022-10-13

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