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ELCDismissedConstitutional Petition (Notice of Motion dated 3rd November, 2023)· [2024] KEELC 1649 (KLR)

Ogiek Council of Elders, Narok Chapter (Suing on their own behalf and on behlaf of the Ogiek of Maasai Mau Forest) v Attorney General & 2 others (Environment & Land Petition E005 of 2023) [2024] KEELC 1649 (KLR)

High Court of Kenya
19 March 2024
3,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed Ogiek community conservatory orders because identical protection already existed from the Nakuru Environment and Land Court, warning against forum shopping.

What this practically means

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Executive summary

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The petitioner, a member of the Ogiek Council of Elders of Narok Chapter suing on behalf of the Ogiek community, moved the court by Notice of Motion dated 3rd November 2023 under Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice Directions, 2013, seeking conservatory orders stopping the respondents from evicting the Ogiek from Sasimuani area within Maasai Mau Trust Land. The application relied on the 2017 judgment and 2023 reparations judgment of the African Court on Human and Peoples' Rights, which found the Mau Forest Complex to be the ancestral land of the Ogiek, and on alleged evictions and demolitions by Kenya Wildlife Service, Kenya Forest Service and Administration Police officers in October and November 2023. The 1st respondent opposed, citing the principles in Gatirau Peter Munya on conservatory orders, the state's constitutional duty under Articles 60 and 69 to conserve the environment, and arguing the petitioners had no right to reside in the Mau Forest Reserve without licences under the Forest Conservation and Management Act. The court, citing Gatirau Peter Munya and Katiba Institute, accepted that the application raised matters fit for conservatory relief, but noted that the petitioner's own further affidavit disclosed conservatory orders already obtained in Petition E001 of 2023 before the ELC Court in Nakuru covering the Mau Forest Complex including Sasimuani area, with that application still pending. The petitioner did not disclose what transpired there. Holding that parallel pursuit of identical relief in courts of concurrent jurisdiction is impermissible forum shopping, the court dismissed the application with costs in the cause.

Key legal issues

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Whether conservatory orders should issue against evictions of the Ogiek community in Sasimuani area of Maasai Mau Trust Land

Holding

The application for conservatory orders was refused because the petitioner had already obtained conservatory orders in Petition E001 of 2023 before the ELC Court in Nakuru covering the entire Mau Forest Complex including Sasimuani area, and failed to disclose the outcome of that application; the parallel pursuit of identical relief in this court constituted forum shopping.

Reasoning

The court accepted the public-law character of conservatory orders as described in Gatirau Peter Munya and Katiba Institute, and found the application one for such consideration. However, the petitioner's further affidavit acknowledged conservatory orders granted by the ELC in Nakuru covering the Mau Forest Complex including Sasimuani area, with the application still pending hearing. The petitioner did not disclose what transpired there. Granting identical relief would embarrass the court and permit forum shopping among courts of concurrent jurisdiction.

p. 7

Legal principles established

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  • A litigant cannot pursue parallel conservatory relief in courts of concurrent jurisdiction; non-disclosure of the status of a similar pending application justifies refusal of orders

Court orders

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  1. 1.The Notice of Motion Application dated 3rd November, 2023 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3)(c), 52, 56, 60, 69, 258
  • Forest Conservation and Management ActNo. 34 of 2016
  • Evidence Actphotographic evidence requirements
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice Directions, 2013Rules 23 and 24

Cases cited (13)

  • Gatirau Peter Munya versus Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • African Commission on Human & Peoples' Rights v Republic of Kenya
    Application No. 006 of 2012
  • Joseph Kimeto Ole Mapelu & 12 Others versus Cabinet Secretary, Ministry of Lands, Housing and Urban Development & 10 Others
    [2020] eKLR
  • Muslim for Human Rights (Milimani) & 2 Others versus Attorney General & 2 Others
    [2011] eKLR
  • Centre for Rights Education & Awareness (CREAW) versus Attorney General
    [2011] eKLR
  • Law Society of Kenya versus Office of the Attorney General & Another; Judicial Service Commission (Interested Party)
    [2020] eKLR
  • Wilson Kaberia Nkunja versus The Magistrates and Judges Vetting Board & Others
    [2016] eKLR
  • Board of Management of Uhuru Secondary School versus City County Director of Education & 2 Others
    [2015] eKLR
  • Mrao Limited versus First American Bank of Kenya Limited & 2 Others
    [2003] eKLR
  • Dry Associates Limited versus Capital Markets Authority; Interested Party Crown Berger (K) Limited
    [2012] eKLR
  • Martin Nyaga Wambora versus Speaker of the County of Assembly of Embu & 3 Others
    [2014] eKLR
  • Katiba Institute vs Judicial Service Commission & 2 others; Kenya Magistrates and Judges Association & 2 others (Interested Parties)
    (Constitutional Petition E128 of 2022) [2022] KEHC 438 (KLR)
  • Judicial Service Commission v Speaker of the National Assembly & another
    [2013] eKLR
Jurisdiction invoked
Articles 22, 23(3)(c) and 258 of the Constitution of Kenya, 2010; Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice Directions, 2013

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, "Ogiek Council of Elders, Narok Chapter (Suing on their own behalf and on behlaf of the Ogiek of Maasai Mau Forest) v Attorney General & 2 others (Environment & Land Petition E005 of 2023) [2024] KEELC 1649 (KLR)", Case Analysis (2024). Constitutional Petition (Notice of Motion dated 3rd November, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1649/eng@2024-03-19

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