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)
The bottom line
#Kenya's Environment and Land Court dismissed the Ogiek community's claim to Mt Elgon Forest, holding gazetted public forest land outweighs ancestral land claims.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC vis-à-vis the NLC over historical land injustice claims
The ELC has jurisdiction under articles 162(2)(b) and 165(3)(b), (d), (e) and sections 13 and 21 of the ELC Act; the NLC's mandate does not oust the court's jurisdiction
Relying on Chief Land Registrar v Koech, the court held that a court may hear historical injustice claims whether or not the NLC is seised of the matter; section 15(3)(b) of the NLC Act permits the ELC to deal with such claims. The reliefs sought (declarations, invalidity, injunctions) fall within section 13(7) of the ELC Act. Limitation under section 7 of the Limitation of Actions Act did not bar the constitutional petition.
Constitutionality of section 77 and the third schedule of the FCMA
The provisions are constitutional; they give effect to article 69 of the Constitution
Applying the presumption of constitutionality and plain-language interpretation, the court found the Act's objective clear: to give effect to article 69 on sustainable management of forest resources. No ambiguity or inconsistency with the Constitution was demonstrated. The petitioners, bearing the burden on a balance of probabilities, failed to prove that section 77 and the third schedule violated article 40 or article 10.
Whether Mt Elgon Forest is community land under article 63(2)(d)(ii)
No; it is public land under article 62(1)(g), having been gazetted in 1932 and never degazetted
The forest was gazetted on April 30, 1932 under Proclamation No 44, becoming a protected area under KFS. The gazettement extinguished the Ogiek claim. The community had abandoned hunting, and cultural sites, honey gathering and vegetable gathering did not qualify the land as community land. The petitioners had not undertaken any registration steps under section 7 of the Community Land Act, and had been compensated through allocation of land in Chepyuk Settlement Scheme.
Whether the doctrine of native title preserved the petitioners' pre-existing rights
The native title argument failed; gazettement as a state forest extinguished any such rights
Although counsel cited Mabo v Queensland and other Commonwealth authorities, the court followed the line of Kenyan decisions (Kemai, Letuya, Kaptipin, Kiptum Yator, Ole Tauta, Munkasio) holding that claims based on ancestral occupation of gazetted forests have no basis where the land remains gazetted public land and has not been degazetted or alienated to the community.
Whether the June 20, 2016 eviction violated constitutional rights
No violation proved; the petitioners failed to discharge the burden of proof
The court accepted an eviction took place but found the manner of the eviction unclear; no evidence from police or a government valuer quantified loss, and the site visit revealed no apparent destruction. The petitioners had already been allocated alternative land in Chepyuk Settlement Scheme and could access the forest for herbs and ceremonies with permits. The claim that eviction threatened the right to life was unsustainable.
Priority of environmental conservation over community land claims
Ecosystem preservation takes priority over the Ogiek claims
Article 69 obligates the State to conserve the environment; Chepkitale National Reserve is an ecologically sensitive wildlife corridor for elephants, and increased human activity would destabilize the ecological balance. The court invoked Kemai on balancing individual and group rights with environmental protection and EMCA's definition of sustainable development.
Legal principles established
#- Gazettement of land as a public forest under article 62(1)(g) prevails over claims of ancestral/community land under article 63(2)(d)(ii) unless the land is degazetted through the statutory procedure
- The burden of proving unconstitutionality of a statute lies on the petitioner, on a balance of probabilities, and there is a presumption of constitutionality
- The need to preserve the ecosystem takes priority over community claims of ownership and use of land claimed as community land
- A community claiming community land must follow the registration procedure under section 7 of the Community Land Act
- Constitutional rights founded on the right to property do not extend to property unlawfully acquired or occupied
Court orders
#- 1.Petition dismissed
- 2.No order as to costs, the matter being a public interest claim
- Jurisdiction invoked
- Articles 162(2)(b) and 165(3)(b), (d) and (e) of the Constitution; sections 13 and 21 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "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)", Case Analysis (2022). Environment and Land Petition 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13783/eng@2022-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.