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ELCDismissedPetition dated 25th July, 2016 (not otherwise numbered in the judgment)· [2024] KEELC 4003 (KLR)

Maiyo & 4 others v Land Adjudication & Settlement Officer, Nandi County & 8 others (Environment & Land Petition 7 of 2021) [2024] KEELC 4003 (KLR)

Environment and Land Court
30 April 2024
11,494 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that gazetted forest land can never be privately owned, dismissing families' claims to Nandi North Forest.

What this practically means

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Executive summary

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Five petitioners, land owners in the Kamwega Land Adjudication Section in Nandi County, petitioned against the re-establishment of the boundary between their adjudication section and Nandi North Forest, claiming the subdivision of the section and re-demarcation violated their proprietary rights under Article 40, breached a mandamus order issued in Kisumu High Court Misc. Civil Application No. 13 of 2002, and sought orders of mandamus compelling titling per the register compiled and published on 14th August 2000. The State respondents and the Kenya Forest Service officials opposed, contending the forest was gazetted in 1936 and declared a Central Forest in 1964, was public land, and no portion was degazetted for adjudication. The court framed six issues. It held the petition was properly before it despite Sections 18 and 19 of the Land Registration Act because the claim was multifaceted (relying on the Supreme Court's Abidha Nicholus decision), and that consent under Section 30 of the Land Adjudication Act was unnecessary for an Article 22 constitutional petition. On the merits it found the forest was public land under Article 62(1)(g), never degazetted under Section 4 of the Forest Act, hence incapable of adjudication; no proprietary rights or legitimate expectation could arise over a public forest. The petition, described as a self-aggrievement rather than public interest litigation, was dismissed with costs to the participating respondents; compensation was refused because the occupation of the forest was illegal; titling of the adjudication section may proceed but excluding any forest land; a Section 152 notice against forest occupiers was directed; and interim orders were discharged.

Key legal issues

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01

Jurisdiction given Sections 18 and 19 of the Land Registration Act

Holding

The objection fails; the petition is multifaceted and the Land Registrar has no jurisdiction over such claims

Reasoning

Although the correct rule is that boundary disputes belong to the Land Registrar, this petition combines boundary issues with Article 40 proprietary rights and Article 69 environmental conservation. Guided by the Supreme Court's Abidha Nicholus decision on multifaceted claims, the ELC is the appropriate forum and is clothed with jurisdiction.

p. 18
02

Whether consent under Section 30 of the Land Adjudication Act was required

Holding

Not required for a constitutional petition under Article 22 seeking Article 23 reliefs including judicial review

Reasoning

Article 22 petitions need no leave, unlike Order 53 judicial review. Requiring the adjudication officer's consent would limit access to fundamental rights enforcement; consent is needed only in ordinary civil proceedings concerning land in an adjudication section.

p. 19
03

Whether Kamwega Adjudication Section comprised degazetted portions of Nandi North Forest

Holding

No; the forest was public land and was never degazetted, so it could not form part of the adjudication section

Reasoning

The forest was proclaimed in 1936 and declared a central forest by Legal Notice 174/1964, operating retrospectively from 1st June 1963, becoming public land under Article 62(1)(g). The burden lay on the Petitioners to prove degazettement under Section 4 of the Forest Act; none was produced.

p. 21
04

Whether the Petitioners' proprietary rights and legitimate expectation were infringed

Holding

No proprietary rights or legitimate expectation could accrue over a public forest; no violation of Articles 40 or 47 was established

Reasoning

Proprietary interests were acquired only within the adjudication section proper; since the forest area was never part of it and was never degazetted, no rights arose there. Public forests serve environmental and carbon-sinking functions, so individual proprietary claims over them are inconceivable.

p. 21

Legal principles established

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  • Boundary disputes fall to the Land Registrar under Sections 18 and 19 of the Land Registration Act, but a multifaceted claim involving boundaries, constitutional proprietary rights and environmental conservation is properly before the ELC
  • Consent of the Land Adjudication Officer under Section 30 of the Land Adjudication Act is not required for an Article 22 constitutional petition
  • Gazetted forest land is public land and can only be alienated upon degazettement in accordance with Section 4 of the Forest Act; no proprietary rights can arise over a public forest

Court orders

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  1. 1.The petition is dismissed with costs
  2. 2.No orders of compensation for the Petitioners' occupation of parts of Nandi North Forest
  3. 3.The 5th and 6th Respondents shall, in liaison with the National Land Commission, issue a Notice under Section 152 to the occupiers of the portions forming Nandi North Forest
  4. 4.Issuance of titles in respect of Kamwega Land Adjudication Section (halted by the petition) shall proceed, but such titles shall not comprise any land within Nandi North Forest
  5. 5.All interim orders issued pending determination of the petition are discharged
  6. 6.Costs awarded to the 1st, 2nd, 3rd, 4th, 5th, 6th and 9th Respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 2, 3, 10, 22, 23, 27, 40, 47, 50, 62(1)(g), 63, 69, 159, 165
  • Independence (Retired) ConstitutionSections 114(2), 115, 116, 117; paragraph 22(2) of Schedule 2
  • Land Adjudication Act (Cap 284)Sections 3(1), 5(1), 8, 10(1), 25, 26, 26(1)(2), 27, 29(1)(a), 29(2)(3), 30(1)
  • Land Consolidation Act (Cap 283)Section 8
  • Land Registration Act 2012Sections 18(2), 19
  • Land Act 2012generally
  • National Land Commission Act 2012generally
  • Trust Land Act (Cap 288)generally
  • Forest Act (Cap 285, repealed by Forests Act No. 7/2005)Section 4(1)
  • Civil Procedure Rules (Order 53)judicial review leave
  • Proclamation No. 76 of 1936declaration of Nandi North Forest
  • Legal Notice No. 174 of 20th May 1964declaration as Central Forest
  • Land Adjudication Act (Nandi District) Order (L.N. 136/1970)generally

Cases cited (20)

  • Wilfred Juma Wasike & 11 others vs Ministry of Interior and Coordination and the Attorney General
  • Mitubell Welfare Society vs Kenya Airports Authority and 2 others
  • Law Society of Kenya and Joseph Kinyua vs Shem Migot
  • CNM vs WMA
    2018 eKLR
  • Ali Farah vs Moses Ole Nasisit & 9 others
    2016 eKLR
  • Lucy Agape Wayodi vs Kenya National Highway Authority & 2 others
    (2019) eKLR
  • David Kiptum Yator & 23 others vs Attorney General & 15 others
    (2020) eKLR
  • Pati Limited vs Funzi Island Development Limited
    Petition No. 37/2019, KESC 29 KLR
  • Simon Kiprotich and 2 others vs Principal Secretary, Ministry of Devolution and Planning and 4 others
  • James Rotich & 4 others vs David Kangogo & 5 others
  • Ledid Ole Tuta vs Attorney General & 2 others
  • Joseph Lutuya & 21 others vs Attorney General & 5 others
  • Azzuri Limited vs Pink Properties Limited
    2018 eKLR
  • John Harun Mwau vs Peter Gastrow & 3 others
  • Yusuf Gitau Abdalla vs Building Centre (K) Ltd & 2 Others
  • Benjamin Okwaro Estika vs Christopher Anthony Ouko & another
    2013
  • Abidha Nicholus vs Attorney General & 7 others
    Petition No. 7/2023, (2023) KESC 113 KLR
  • George Matua Ndoto vs Kenya Forest Service, Chief Land Registrar & the Hon. Attorney General
  • Clement Kipchirchir & 38 others vs The Principal Secretary, Ministry of Lands, Housing & Urban Development & 3 others
  • Kiboss Distillers Case
Jurisdiction invoked
Articles 22, 23(2) and 165 of the Constitution of Kenya 2010 (enforcement of the Bill of Rights); Court rejects ouster under Sections 18 and 19 of the Land Registration Act

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, "Maiyo & 4 others v Land Adjudication & Settlement Officer, Nandi County & 8 others (Environment & Land Petition 7 of 2021) [2024] KEELC 4003 (KLR)", Case Analysis (2024). Petition dated 25th July, 2016 (not otherwise numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4003/eng@2024-04-30

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