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ELCDismissedNot stated in judgment (Petition dated 8th November, 2023, amended 24th May, 2024)· [2024] KEELC 4427 (KLR)

Ngusilo (Suing as the Chairman of the Ogiek Council of Elders) & 2 others v Attorney General & 5 others (Petition 1 of 2023) [2024] KEELC 4427 (KLR)

Environment and Land Court
30 May 2024
6,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed an Ogiek community claim to Mau Forest land, confirming that long occupation alone cannot defeat gazetted public forest status.

What this practically means

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Executive summary

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The Petitioners, members of the Ogiek community including the Kenya National Commission on Human Rights, petitioned the Environment and Land Court at Nakuru challenging evictions, demolitions and burning of houses in the Sasumwani and Nkareta areas of the Maasai Mau Forest Complex carried out in October and November 2023. They relied heavily on the African Court on Human and Peoples' Rights judgments of 26th May 2017 and 23rd June 2022 affirming Ogiek ancestral land rights, and sought declarations of violation, restraining orders, a profiling order and general damages. The 3rd Respondent (Kenya Forest Service) and 4th Respondent (Kenya Wildlife Service) filed replying affidavits; the other Respondents did not respond. The court framed two issues: its jurisdiction and whether the Petitioners were entitled to the orders sought. On jurisdiction, it adopted a separationalistic approach, holding that the ELC, as a specialised court of equal status with suis generis jurisdiction under Article 162(2)(b), could determine the land and environment aspects of the petition. On the merits, the court held that the Petitioners bore the burden of proving their claims under Section 107 of the Evidence Act, and that their ancestral land claims failed because the Mau Forest is gazetted public forest under the Forest Conservation and Management Act, 2016 and has not been procedurally degazetted; long occupation and belief in ancestral rights are immaterial absent formal allocation or title. The Petition was dismissed with no orders as to costs, the court noting the matter was a public interest claim.

Key legal issues

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01

Jurisdiction of the ELC over petitions combining land, environmental and human rights claims

Holding

The ELC has jurisdiction over the land/environment aspects and will apply a separationalistic approach guided by the remedies sought

Reasoning

Relying on the Supreme Court's decision in Republic v Karisa Chengo, the court noted the ELC is a specialised court with suis generis jurisdiction, distinct from and equal in status to the High Court, and cannot hear matters reserved to the High Court. Following Patrick Musimba and Kibos Distillers, the court held that where causes of action are intertwined, a separationalistic approach is adopted rather than dismissing half the claim.

p. 12
02

Whether the Ogiek have enforceable ancestral/community land rights over the gazetted Maasai Mau Forest

Holding

No - the forest is gazetted public land and no evidence of allocation, title or procedural degazettement was produced

Reasoning

Applying Letuya, Parkire Stephen Munkasio and David Kiptum Yator, the court held that ancestral claims do not override formal title processes; forest land requires excision before allocation, and gazetted forest reserves form public land under Article 62(1)(g). The Petitioners relied solely on long occupation and the African Court judgments, which the court did not treat as conferring Kenyan registrable title.

p. 14
03

Whether the Petitioners proved the alleged evictions and violations

Holding

The Petitioners did not discharge the burden of proof under Section 107 of the Evidence Act

Reasoning

The court noted the claims rested on the affidavits of the 1st and 2nd Petitioners; the 3rd Respondent denied any Ogiek member was under threat of eviction and the 4th Respondent denied involvement in demolitions. Applying the rule that he who alleges must prove, the court found the allegations unproved and the Petition without merit.

p. 7

Legal principles established

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  • Claims to ancestral land require evidence of formal processes of allocation, transfer and registration; long occupation alone does not confer title over gazetted public forest
  • He who alleges must prove - the burden of proof lies on the party asserting facts

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No orders as to costs, the matter being a public interest claim
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act, 2011

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, "Ngusilo (Suing as the Chairman of the Ogiek Council of Elders) & 2 others v Attorney General & 5 others (Petition 1 of 2023) [2024] KEELC 4427 (KLR)", Case Analysis (2024). Not stated in judgment (Petition dated 8th November, 2023, amended 24th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4427/eng@2024-05-30

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