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ELCPartially AllowedPetition No 11 of 2020 (lead file; consolidating Petition No 130 of 2017, Petition No E005 of 2020, Petition No E006 of 2020 and Petition No E16 of 2020)· [2024] KEELC 6320 (KLR)

Tonui v Kenya Forest Service & 3 others; Law Society of Kenya & Others & 12 others (Interested Parties) (Constitutional Petition 11 of 2020) [2024] KEELC 6320 (KLR)

Environment and Land Court
30 September 2024
19,085 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~76 min to read original · ~4 min brief

The bottom line

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Mau forest settlers' land titles are valid, but encroachers on forest land can be lawfully evicted once boundaries are marked on the ground.

What this practically means

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Executive summary

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Five petitions concerning the Eastern Mau Forest Complex were consolidated with Petition No 11 of 2020 as the lead file. The petitioners, residents of the Nessuit, Mariashoni, Sururu, Likia, Terit and Sigotik Settlement Schemes, and the Ogiek Community, challenged evictions, threats to their titles and the activities of an un-gazetted Multi Agency Task Force. The court held the Government consciously established the settlement schemes; that Gazette Notice No 889 of January 30, 2001 gave notice of intention to alter the forest boundary and Legal Notice No 142 of October 8, 2001 validly effected the excision of 35,301.01 hectares, neither notice having been revoked or quashed; and that a stay of implementation could not be indefinite. Settlers within the excised area therefore enjoyed a legitimate expectation and valid titles which the Government could not defeat without a resettlement plan. The Multi Agency Task Force, not gazetted and without published terms of reference, was declared a nullity. The court held it was not bound by the African Court on Human and Peoples' Rights decisions, which were persuasive only, and that the Ogiek's access-to-information right was violated but rendered otiose by the June 23, 2022 reparations judgment. The claim for compensation for evictions was dismissed for want of proof, as was the Ogiek petition. The court ordered implementation of the excision and beacon delineation of the forest boundary within 12 months, verification of allottees and issuance of titles, humane eviction of encroachers under section 152G of the Land Act, riparian protection and 30% tree cover within 60 months, with each party bearing their own costs.

Key legal issues

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01

Validity of the degazettment of 35,301.01 hectares of Eastern Mau Forest

Holding

Legal Notice No 142 of October 8, 2001 validly altered the Eastern Mau Forest boundary; the notices were never revoked or quashed and no stay could be indefinite

Reasoning

The Minister gave the 28-day notice of intention under section 4(2) of the repealed Forest Act via Gazette Notice No 889 of January 30, 2001, and Legal Notice No 142 of October 8, 2001 effected the alteration of 35,301.01 hectares. The Attorney General claimed judicial review proceedings stayed implementation but did not furnish the judgment or order; the notice was never quashed, and a stay cannot run indefinitely. Accordingly, the excision was valid and land settled within it was lawfully settled.

p. 34
02

Legitimate expectation and validity of titles

Holding

Settlers within the excised area had a protected legitimate expectation; titles issued within the excised area are valid and should be respected

Reasoning

The Government promised settlement, established the six schemes, issued the notices of boundary alteration and processed titles from 1997. Under the legitimate expectation principles from the Supreme Court, there was a clear representation by a competent authority which the settlers reasonably acted upon. The Government cannot reverse course without a massive resettlement plan. Persons settled within the excised 35,301.01 hectares were validly settled and their titles valid.

p. 5
03

Legality of the Multi Agency Task Force

Holding

The Task Force, not gazetted and without publicized terms of reference, lacked legal backing and its activities were a nullity

Reasoning

The Task Force was established in August/September 2020 without gazettement, without published terms of reference, and without involvement of Ogiek community representatives, despite one of its objectives being implementation of the African Court judgment. Lacking any legal framework anchoring its activities, it was unlawful. This engages articles 10, 35 and 47 concerns regarding participation, information and fair administrative action.

p. 38
04

Relationship between national courts and regional court decisions

Holding

This court is not bound by the African Court's decisions; national courts interpret the Constitution and national laws, with regional jurisprudence persuasive only

Reasoning

Relying on the Supreme Court advisory opinion in Attorney General v Karua on subsidiarity, the court held that interpretation of the Constitution and national laws and weighing of evidence is the mandate of domestic courts, which cannot be surrendered to regional courts. Regional jurisprudence is persuasive. The Ogiek should pursue implementation of the reparations judgment rather than seek enforcement in this petition.

p. 38
05

Compensation for evictions

Holding

Claim for damages dismissed for want of proof

Reasoning

Although there was evidence some evictions occurred, the court could not ascertain whether they were executed on forest land or settlement land. KFS may lawfully evict persons from forest land upon notice and humanely. No evidence demonstrated unlawful or inhumane evictions, so the compensation claim failed.

p. 37

Legal principles established

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  • A gazette notice altering a forest boundary that has not been quashed or annulled remains valid and completes the degazettment; an order of stay cannot be indefinite
  • Settlers allocated land by the Government pursuant to a gazetted forest excision acquire a legitimate expectation, and the Government cannot go back on its promise in violation of their property rights
  • A national court is not bound by decisions of regional courts; such jurisprudence is persuasive only
  • A Multi-Agency Task Force established without gazettement or publicized terms of reference, and without involving affected indigenous community representatives, is unlawful and a nullity
  • KFS may evict encroachers from forest land but only upon notice and in a humane manner

Court orders

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  1. 1.Declaration that the Government created Nessuit, Mariashoni, Sururu, Likia, Terit and Sigotik Settlement Schemes and allocated individual parcels of land to the petitioners
  2. 2.Declaration that the Government gave notice to alter the boundary of East Mau Forest vide Legal Gazette Notice No 889 of January 30, 2001 and the boundary was altered vide Legal Gazette Notice No 142 of 8.10.2001, neither of which has been cancelled or revoked
  3. 3.Order that Legal Notice No 142 of October 8, 2001 be implemented and the Government establish and delineate the forest boundaries within the Settlement Schemes by placing physical and visible beacons on the ground within 12 months
  4. 4.Direction that the Ministry of Interior and Coordination of National Government and the Ministry of Lands, Housing and Urban Development verify and authenticate the allottees and issue titles to any allottees not yet issued titles
  5. 5.Order that upon delineation, any person found to have encroached onto forest land to vacate forthwith failing which the Kenya Forest Service may evict forcefully but humanely and in compliance with section 152G of the Land Act, 2012
  6. 6.Order that owners of land within the Schemes shall not interfere with riparian reserves and shall increase tree cover to a minimum of 30% within 60 months
  7. 7.Order that the Ministry of Interior, the Kenya Forest Service, NEMA and WARMA oversee implementation of the tree cover obligation under article 69(2) of the Constitution
  8. 8.Declaration that the Ogiek Community's right of access to information was violated but the reparations judgment of June 23, 2022 renders any orders otiose; the Government should facilitate implementation of that judgment
  9. 9.Each party to bear their own costs of the consolidated petitions
Jurisdiction invoked
Original constitutional petition jurisdiction under article 22 and 23 of the Constitution (Environment and Land Court)

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, "Tonui v Kenya Forest Service & 3 others; Law Society of Kenya & Others & 12 others (Interested Parties) (Constitutional Petition 11 of 2020) [2024] KEELC 6320 (KLR)", Case Analysis (2024). Petition No 11 of 2020 (lead file; consolidating Petition No 130 of 2017, Petition No E005 of 2020, Petition No E006 of 2020 and Petition No E16 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6320/eng@2024-09-30

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