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ELCPartially AllowedPetition No. 7 of 2022 (formerly Petition dated 26th July 2022, amended 5th October 2022)· [2024] KEELC 511 (KLR)

Bundotich & 3 others v Kenya Forest Service (Environment & Land Petition E005 of 2022) [2024] KEELC 511 (KLR)

Environment and Land Court
30 January 2024
LWL. N. Waithaka
3,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The court voided landowners' titles over gazetted Kapchorua forest land, holding Kenya Forest Service acted lawfully because the area was never legally degazetted.

What this practically means

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Executive summary

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Twenty-five petitioners, registered owners of plots in Mosop/Kapchorua, petitioned the Environment and Land Court at Iten alleging that the Kenya Forest Service entered their land in July 2022, cut trees and dug trenches, violating their property rights under Article 40 of the Constitution. They sought a declaration of violation, a conservatory injunction and costs. KFS responded with a cross-petition asserting that the plots fall within Block IV of Kapchorua forest, gazetted by Proclamation No. 102 of 1941, and that legal notice No. 174 of 1964 defining the forest's boundaries was never degazetted; it sought cancellation of the petitioners' titles as fraudulently and unlawfully acquired. The court framed four issues: whether the suit properties lie in gazetted forest; whether that area was degazetted before titling; whether the titles enjoy legal protection; and what orders should issue. PW1 admitted the parcels fall within Block IV and that legal notice No. 174 of 1964 superseded earlier notices. RW2, KFS Head of Survey, confirmed no notice degazetted Blocks I and IV. The court found the petitioners failed to prove degazettement, the burden being on them. It held that although registration confers indefeasibility, titles issued over gazetted forest land are impeachable under Article 40(6) and section 26(1)(b) of the Land Registration Act, following the Clement Kipchirchir decision. The petition was dismissed; the cross-petition was allowed as prayed except costs, with each party bearing its own costs because the petitioners were not solely to blame.

Key legal issues

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01

Whether the suit properties fall within gazetted forest area

Holding

The suit properties fall within Block IV of Kapchorua forest, proven by the respondent's witnesses and admitted by the petitioners' witness

Reasoning

PW1 Isaac Kiprotich Kiptoo admitted that their parcels fall within Block IV of Kapchorua forest and that legal notice No. 174 of 1964 declared it central forest. RW2, the KFS Head of Survey, confirmed via Proclamation No. 102 of 1941, legal notices 500 of 1962 and 174 of 1964, and boundary plan No. 180/10 that Blocks I and IV remained forest, and there was no legal notice degazetting Block IV.

p. 6
02

Whether the area was degazetted before titles were issued to the petitioners

Holding

No evidence of degazettement was produced; the burden lay on the petitioners and was not discharged

Reasoning

The petitioners bore the burden of proving that Block IV had been degazetted before their titles were processed. RW2 confirmed there was no legal notice degazetting Blocks I and IV. The petitioners' reliance on the 1941 Proclamation's schedules did not establish excision of Block IV, which remained gazetted forest under legal notice No. 174 of 1964, which was never revoked.

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03

Whether the petitioners' titles are protected by law

Holding

Although registered, the titles are not protected because they were issued over gazetted forest land without degazettement

Reasoning

Registration under sections 24, 25 and 26 of the Land Registration Act ordinarily confers indefeasible title, but Article 40(6) of the Constitution and section 26(1)(b) withhold protection from titles acquired illegally, unprocedurally or through a corrupt scheme. Titles created from gazetted forest land without the requisite degazettement procedure fall outside constitutional protection, following Clement Kipchirchir & 38 others.

p. 6

Legal principles established

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  • Titles acquired over gazetted forest land without degazettement are impeachable and not protected by Article 40(6) of the Constitution or Section 26(1)(b) of the Land Registration Act
  • The burden of proving that land was degazetted before titles were issued lies on the party asserting it

Court orders

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  1. 1.The Petition is dismissed for lack of merit
  2. 2.The respondent's cross-petition is allowed as prayed save for the prayer for costs
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40; Article 40(6)
  • Land Registration ActSections 24(a), 25(1), 26(1) and 26(1)(b)

Cases cited (3)

  • Anarita Karimi Njeri vs. Republic
    1976-1980 KLR 127
  • Clement Kipchirchir & 38 others vs. Principal Secretary Ministry of Lands Housing and Urban Development & 3 others
    (2015) eKLR
  • Henry Muthee Kathurima vs. Commissioner of Lands & Another
    Civil Appeal No. 8 of 2014 (2015) eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya (petition for violation of property rights), Environment and Land Court jurisdiction

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, "Bundotich & 3 others v Kenya Forest Service (Environment & Land Petition E005 of 2022) [2024] KEELC 511 (KLR)", Case Analysis (2024). Petition No. 7 of 2022 (formerly Petition dated 26th July 2022, amended 5th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/511/eng@2024-01-30

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