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ELCDismissedEnvironment & Land Petition E001 of 2020· [2023] KEELC 19858 (KLR)

Wasike & 2 others v Attorney General & 2 others

Environment and Land Court of Kenya
20 September 2023
DOD. O. Ohungo
2,682 words in judgment
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The bottom line

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A Kenyan court dismissed squatters' bid to force forest land resettlement, ruling that disputed factual claims belong in ordinary civil suits, not constitutional petitions.

What this practically means

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Executive summary

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Three petitioners, suing on their own behalf and on behalf of M/s 1992 Squatters Sacco, petitioned the Environment and Land Court at Kakamega claiming to be squatters benefiting from a 1992 presidential resettlement programme in Turbo Forest Reserve/Mautuma Central Settlement Scheme. They alleged violations of articles 19, 25, 26, 27, 28, 40, 43, 47, 48, 50 and 68 of the Constitution and sought mandamus to complete the resettlement scheme, prohibition against fresh vetting, conservatory orders over 1577.86 hectares, declarations of violation of fair administrative action and legitimate expectation, an injunction, and costs. The National Land Commission opposed on the basis that settlement implementation is the National Government's mandate under sections 134(1) and 134(3) of the Land Act. The Attorney General and Kenya Forest Service, through replying affidavits, contended that all genuine squatters were already settled, that the petitioners' list was foreign, and that Parliament had not approved de-gazettement. The court framed two issues: whether the petitioners are squatters within Turbo/Lugari Forest and Mautuma Central Settlement Scheme, and whether the reliefs should issue. Applying Communications Commission of Kenya and Sumayya Athmani Hassan, Ohungo J held that determining genuine squatter status is purely evidential and belongs in an ordinary civil claim, not constitutional litigation. The court also declined to compel de-gazettement of forest land, citing statutory fidelity and sustainable development principles, and found the prohibition against vetting self-defeating. The petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the petitioners are genuine squatters entitled to allocation of land at Mautuma Central Settlement Scheme

Holding

The question is evidential and belongs in an ordinary civil claim, not a constitutional petition; the constitutional jurisdiction was not engaged

Reasoning

The court held that the petitioners' claim rested on disputed facts about squatter status and entitlement to land allocation. Citing Communications Commission of Kenya and Sumayya Athmani Hassan, it reasoned that such purely evidentiary questions do not require constitutional adjudication, so the petitioners were in the wrong forum.

p. 5
02

Whether the court could compel de-gazettement of Lugari Forest for settlement

Holding

No - de-gazettement of forest land is a serious matter requiring statutory compliance and sustainable development principles

Reasoning

The court noted dwindling forest cover affects climate and biodiversity. It held that any de-gazettement must adhere to statutory provisions, sound science and sustainable development principles including the precautionary principle, and therefore declined to compel the respondents to de-gazette the forest as sought.

p. 5
03

Whether the reliefs sought should issue

Holding

No - the reliefs flow from the unresolved evidential question and the prohibition against vetting was internally incoherent

Reasoning

Since the reliefs depended on establishing genuine squatter status, which the court declined to determine in constitutional proceedings, none could issue. The court also found it contradictory for the petitioners to seek land while seeking to bar their own vetting, and dismissed the petition.

Legal principles established

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  • Whether a party is a genuine squatter entitled to allocation of land is a question of evidence for an ordinary civil claim, not constitutional litigation
  • De-gazettement of forest land must comply with statutory provisions, sound science and sustainable development principles including the precautionary principle

Court orders

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  1. 1.The petitioners' case is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Actsection 134(1)
  • Land Actsection 134(3)
  • Constitution of Kenyaarticles 19, 25, 26, 27, 28, 40, 43, 47, 48, 50, 68

Cases cited (2)

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR

    Constitutional jurisdiction is not for purely evidentiary questions; proper forum doctrine

  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR

    Questions of fact/evidence should be determined in ordinary civil claims, not constitutional petitions

Jurisdiction invoked
Constitution of Kenya, 2010 - original constitutional petition jurisdiction of the Environment and Land Court (articles 19, 25, 26, 27, 28, 40, 43, 47, 48, 50 and 68 invoked)

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, "Wasike & 2 others v Attorney General & 2 others", Case Analysis (2023). Environment & Land Petition E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19858/eng@2023-09-20

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