Maiyo & 4 others v Land Adjudication & Settlement Officer, Nandi County & 8 others (Environment & Land Petition 7 of 2021) [2024] KEELC 4003 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction given Sections 18 and 19 of the Land Registration Act
The objection fails; the petition is multifaceted and the Land Registrar has no jurisdiction over such claims
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.
Whether consent under Section 30 of the Land Adjudication Act was required
Not required for a constitutional petition under Article 22 seeking Article 23 reliefs including judicial review
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.
Whether Kamwega Adjudication Section comprised degazetted portions of Nandi North Forest
No; the forest was public land and was never degazetted, so it could not form part of the adjudication section
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.
Whether the Petitioners' proprietary rights and legitimate expectation were infringed
No proprietary rights or legitimate expectation could accrue over a public forest; no violation of Articles 40 or 47 was established
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.
Legal principles established
#- 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
#- 1.The petition is dismissed with costs
- 2.No orders of compensation for the Petitioners' occupation of parts of Nandi North Forest
- 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.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.All interim orders issued pending determination of the petition are discharged
- 6.Costs awarded to the 1st, 2nd, 3rd, 4th, 5th, 6th and 9th Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.