Endorois Welfare Council v Cabinet Secretary Ministry of Environment, Climate Change and Forestry & 4 others (Environment and Land Petition E01 of 2025) [2026] KEELC 432 (KLR)

Consultation with the National Land Commission and meaningful public participation is mandatory in the conversion of community land to public land The petitioner challenged the gazettement of approximately 13,195.8 hectares of land in Arabal Location, Baringo County, as a public forest contending that the land was community land and that the process violated constitutional and statutory requirements. The court held that the land was community land and that its conversion to a public forest did not comply with section 22 of the Community Land Act. The court found that consultation with the National Land Commission and meaningful public participation was mandatory. The gazettement was declared unconstitutional. Reported by Kakai Toili Land Law – community land – conversion of community land into public land - what were the ways in which community land could be converted to public land – whether consultation with the National Land Commission and the concerned community was mandatory before the conversion of community land into a public forest Constitution of Kenya, articles 10, 63, and 232; Community Land Act (Cap. 287), section 22; Forest Conservation and Management Act (Cap. 385), section 31(2); Community Land Act Regulations, 2017, regulation 19. Constitutional Law – doctrine of separation of powers – Parliament vis a vis Judiciary - whether the recommendations of a parliamentary committee were binding on courts. Constitutional Law – national values and principles of governance – public participation -what were the guiding principles for public participation. Brief facts The petitioner, Endorois Welfare Council, a community-based organization representing the Endorois indigenous community, filed the petition challenging the gazettement of land within Arabal Location, Baringo County, as a public forest. The petitioner contended that the suit land, measuring approximately 13,195.8 hectares and comprising Mukutani Hills Block and Lemaitai Hills Block, constituted community land within the meaning of article 63 of the Constitution and had historically been occupied and utilized by the Endorois Community for grazing, settlement, and cultural purposes. It was averred that in March 2016, the respondents caused the land to be gazetted as a forest through Gazette Notice No. 1470 without consulting the Endorois Community or complying with constitutional and statutory requirements. The petitioner alleged that the process lacked public participation, disregarded objections from community members, local leaders, and the County Government of Baringo, and failed to involve the National Land Commission as required by law. The petitioner further asserted that prior to the gazettement, residents had lodged formal objections highlighting that the land contained adjudicated areas, public utilities, and private developments, and that afiected persons, including previously displaced residents, had not been consulted. Despite the objections and a recommendation by the National Land Commission to suspend the process pending stakeholder consultations, the gazettement proceeded. The petitioner sought declaratory reliefs, quashing of the gazette notice, and injunctive orders to protect the community’s occupation and use of the land. In response, the respondents maintained that the gazettement was a community-driven initiative aimed at conserving the environment and protecting water catchment areas, and that due process, including consultations and surveys, had been undertaken. Issues i. Whether consultation with the National Land Commission and the concerned community was mandatory before the conversion of community land into a public forest. ii. What were the ways in which community land could be converted to public land? iii. Whether the recommendations of a parliamentary committee were binding on courts. iv. What were the guiding principles for public participation? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 2

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Relevant provisions of the Law Community Land Regulations, 2017 Regulation 19 - Setting a community land for Public purposes (1) A community may, through the resolution of at least two thirds of the community assembly, set aside land for an identified public purpose. (2) Where the intended public purpose that was not in the approved development plan, the community shall consult the relevant authority responsible for county planning for direction. (3) Upon recommendation from the planning authority, the community shall cause the preparation of a physical development plan for the land to be set aside and forward the plan to the relevant county government for approval. (4) The approved physical development plan for the land to be set aside for public purpose shall be forwarded to the National Land Commission for publication in the Gazette within fourteen days. (5) After publication in the Gazette, the Commission shall reserve the land to the relevant public entity in accordance with the Land Act (Cap. 280). Held 1. The suit land was community land. That was admitted by the respondents that the process of conversion of the suit land to forest land was community led who were identified as the IIchamus whom they alleged approached Marigat Forester to help in the conservation and converting the community land into a State forest. 2. The land which was the subject matter of the suit was community land. Counsel for the respondents submitted on an issue whether the gazetted suit land was situated in Arabal Location or Mukutani Location, that was an issue that never arose in the replying afidavit and there was no map or any other evidence adduced on the issue for determination. It could therefore not be raised in submissions as the petitioner may not be able to clarify the same. The respondent raised the issue of the geographical location which counsel said was done by experts but there was no evidence to rebut the claim that the suit land was situated in Arabal Location. 3. There were laid down procedures of conversion of land from community land to public or private and vice versa. If such procedures were not followed then the process was fiawed and contravened the rights of the parties who were afiected by the anomaly. 4. Section 22 of the Community Land Act provided for ways in which community land could be converted to public land, namely; vide compulsory acquisition, transfer or surrender. From the 2nd respondent’s replying afidavit, the process of conversion was through surrender as it was a community–driven initiative. If that was the case, then the respondents should have complied with the provisions of regulation 19 of the Community Land Act Regulations 2017 which stipulated the procedures for conversion of community land to public use through surrender. 5. The respondents submitted that they complied with the requirements for gazettement of community land as a State forest. The respondent gave confiicting evidence and submissions. The respondent stated that there was adequate consultation with the stakeholders and the National Land Commission prior to gazettement, but counsel submitted that the land subject to gazettment did not fall within the categories specified in section 31(2) of the Forest Conservation and Management Act that would trigger the mandatory consultation requirement with the National Land Commission. 6. From the evidence, it was clear that after the people became aware of the gazettement, National Land Commission wrote a letter dated 30 March 20l6, outlining several conditions that were to be met before any further steps could be taken. The objection cited concerns raised by Baringo County leadership, including the presence of public utilities such as schools, a dispensary, churches, dams, boreholes, and an irrigation scheme, which could not legally be incorporated into a forest reserve. 7. There were many objections to the gazettement as could be seen from the letters written by the National Land Commission, the Baringo County Government and specifically that on 24 March https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 3

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8. 9. 2016, seven Members of Parliament from the area also wrote to the Cabinet Secretary, Ministry of Environment and Natural Resources, objecting to the gazettement, but the same proceeded in complete disregard of the required approvals, the objections raised by the County Government, the contributions and objections of the Endorois community as well as the recommendations and conditions set out by the National Land Commission. That showed that the gazettement did not adhere to the laid down procedures of due process and constitutional and statutory imperatives. That was impunity at play. Article 10(2)(a) of the Constitution outlined public participation as one of the national values and principles of governance which bound all State organs and public oficers. The guiding principles for public participation were as follows: 1. As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance. 2. The public oficer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation. 3. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give efiect to that constitutional principle using reasonable means. 4. Public participation must be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to fulfill a constitutional requirement. There was need for both quantitative and qualitative components in public participation. 5. Public participation was not an abstract notion; it must be purposive and meaningful. 6. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case to case basis. 7. Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process. 8. Allegation of lack of public participation did not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis. 9. Components of meaningful public participation included the following; i. clarity of the subject matter for the public to understand; ii. structures and processes (medium of engagement) of participation that were clear and simple; iii. opportunity for balanced infiuence from the public in general; iv. commitment to the process; v. inclusive and efiective representation; vi. integrity and transparency of the process; vii. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. From the minutes that were attached to the replying afidavit by the respondent, the heading indicated that it was for IIchamus Community leaders, whose names and ID numbers were afixed together with their signatures. All the persons who attended knew how to write and their signatures were almost similar. No one thumb printed. That meant that the level of literacy was very high or there was a criterion of choosing only those who could read and write. There were no attachments of notices of invitation for the meetings, whether there was adequate notice for the people to attend and where. Those records were important for transparency. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 4

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10. Even if the respondent was to submit that they consulted the leaders or representatives, the same leaders raised objections but their objections were ignored. That was fortified by a petition that was filed in the National Assembly to the Public Petitions Committee by the Baringo residents challenging the declaration of Mututani as a public forest. The committee established that there was insuficient public participation and a lack of consultation with the National Land Commission and all the afiected communities which directly contravened the Constitution and the Forest Conservation and Management Act. The recommendations might not be binding to the court but were persuasive as that issue had been in the limelight where while that matter was pending in court a school was demolished on the suit land. 11. There was lack of public participation prior to the gazettement of the community land to a forest, the respondents did not adhere to the laid down procedures of conversion of community land to public land. If the afiected communities and the respondents so wished to convert the community land to public forest, then they were at liberty to follow the laid down procedures under the Community Land Act, Forest Conservation and Management Act, with the real members of Endorois Community, through transparency, and meaningful participation not box ticking. Petition allowed. Orders i. A declaration was made that Arabal Location was community land within the meaning of article 63 of the Constitution, and that the County Government of Baringo held it in trust for the community until registration was completed under the Community Land Act. ii. A declaration was made that consultation with the National Land Commission was mandatory before the declaration of Mukutani Forest which was part of Arabal Location and community land to be a public forest pursuant to section 31(2) of the Forest Conservation and Management Act. iii. A declaration that the gazettment of Arabal Location as a forest under Gazette Notice No. 1470 of 3 March 2016 was unconstitutional, unlawful, null and void ab initio. iv. A declaration was made that any dealings with or any decisions concerning Arabal Location community land rights could only be undertaken in consultation and with participation of the Endorois Community in compliance with articles 10,63, and 232 of the Constitution. v. An order of certiorari was made to quash Gazette Notice No. 1470 of 3 March 2016, which purported to establish Arabal Location as a forest. vi. A permanent injunction restraining the respondents, their agents, or any persons acting under their instructions from evicting, displacing, or interfering with the petitioners’ use occupation, and enjoyment of the community land within Arabal Location. vii. Costs of the petition to the petitioner. Citations Cases Kenya 1. Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) Constitutional Petition E473 of 2023; [2024] KEHC 8436 (KLR) - (Mentioned) 2. British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) Petition 5 of 2017; [2019] KESC 15 (KLR) - (Followed) 3. Dina Management Ltd v County Government of Mombasa & 5 others Petition 8 (E010) of 2021; [2023] KESC 30 (KLR) - (Mentioned) 4. Khalifa & 2 others v Independent Electoral and Boundaries Commission & another Constitutional Petition 168 of 2017; [2017] KEHC 4303 (KLR) - (Mentioned) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 5

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Kiambu County Government & 3 others v Gakuru & others Civil Appeal 200 of 2014; [2017] KECA 459 (KLR) - (Explained) 6. Musimba v National Land Commission & 4 others Petition 613 of 2014; [2016] KEHC 5956 (KLR) - (Mentioned) 7. National Land Commission v Afrison Export Import Ltd & 11 others Environment & Land Case of 20 of 2018; [2019] KEELC 4569 (KLR) - (Mentioned) 8. Owuor (Suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary Ministry of Agriculture, Livestock, Fisheries and Co-operatives & others Petition E263 of 2020; [2020] KEHC 1736 (KLR) - (Explained) South Africa Poverty Alleviation Network and others v President of the Republic of South Africa and others (CCT86/08) [2010] ZACC 5; 2010 (6) BCLR 520 (CC) (24 February 2010) - (Mentioned) Statutes Kenya 1. Community Land Act (Cap 287) sections 4(1); 19(3); 19(5); 22(1)(b) - (Interpreted) 2. Community Land Regulations, 2017 (Cap 287 Sub Leg) regulation 19 - (Interpreted) 3. Constitution of Kenya articles 10(2); 40; 42; 63; 69(1); 232 - (Interpreted) 4. Forest Conservation and Management Act (Cap 385) section 31(2) - (Interpreted) 5. Land Act (Cap 280) In general - (Cited) 6. Land Adjudication Act (Cap 284) In general - (Cited) 7. Land Registration Act (Cap 300) In general - (Cited) 8. National Land Commission Act (Cap 281) section 5(2) - (Interpreted) 9. Survey Act (Cap 299) In general - (Cited) Advocates Mr Akang’o for the petitioner. Ms Nyambura for the 1st, 2nd and 5th respondents. 5. JUDGMENT 1. By a petition dated February 14, 2025, the petitioner herein filed a petition against the respondents seeking the following orders: a. A declaration that Arabal Location is community land within the meaning of article 63 of the Constitution, and that the County Government of Baringo holds it in trust for the community until registration is completed under the Community Land Act. b. A declaration that consultation with the National Land Commission was mandatory before the declaration of Mukutani Forest which is part of Arabal Location and Community land to be a public forest pursuant to section 31(2) of the Forest Conservation and Management Act, 2016. c. A declaration that the gazettment of Arabal Location as a forest under Gazette Notice No 1470 of March 3, 2016 was unconstitutional, unlawful, null and void ab initio. d. A declaration that any dealings with or any decisions concerning Arabal Location community land rights can only be undertaken in consultation and with participation of the Endorois Community in compliance with articles 10, 63, and 232 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 6

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e. An order of certiorari to quash Gazette Notice No 1470 of March 3, 2016, which purported to establish Arabal Location as a forest. f. A permanent injunction restraining the respondents, their agents, or any persons acting under their instructions from evicting, displacing, or interfering with the petitioners’ use occupation, and enjoyment of the community land within Arabal Location. g. Damages for violation and/or threatened violation of the petitioner’s constitutional rights. h. Any other or further reliefs as may be appropriate to protect and preserve the rights of the Endorois Community over Arabal Location community land. i. Costs of the petition. Petitioner’s Case 2. The petitioner is a community-based organization registered with the Registrar of Societies to protect the interests, rights and, welfare of the Endorois indigenous minority community. The community is indigenous to eight locations in Baringo South, Arabal location, Mukutani Ward, Baringo South Constituency. The petitioner stated that the petition is brought on the Petitioner’s own behalf and on behalf of the community afiected by the purported conversion and gazettement of community land under Gazette Notice No 1470 of March 3, 2016. 3. The petition was supported by the Afidavit of Richard Kamingóror who is the CEO of the petitioner and stated that the Gazette Notice No 1470 of 2016 covered community land known as Mukutani Hills Block and Lemaitai Hills Block, comprising approximately 13,195.8 hectares, as forest land. 4. The petitioner contends that the alleged conversion of land into forest land was carried out without public participation, due process, and in total disregard of the rights of the Endorois community under articles 10, 40, 42, and 63 of the Constitution, as well as the provisions of the Community Land Act, 20l6. He further stated that the Endorois community has historically occupied and utilized land in Arabal Location for grazing, settlement, cultural practices, and other community livelihood activities. 5. According to the petitioner, in April 1997, the Government commenced an adjudication process in Arabal Location under the Land Adjudication Act, demarcating approximately 105 farms, but the process was later disrupted due to insecurity. 6. It was the petitioner’s case that in 20l4, a section of individuals from the neighboring IIchamus community allegedly initiated a request to the Ministry of Environment to gazette part of Arabal Location as forest land, and that the members of the Endorois community and other residents who stood to be directly afiected by such a move were never consulted. 7. In response, over 500 residents from Arabal area, including political leaders, wrote to the National Land Commission and lodged a formal objection via a community petition dated October 23, 2015, where they objected to the proposal on the grounds that: there the concerned Arabal location community was not consulted; there was no public participation conducted as required before such an exercise could be undertaken; that the initial residents who had been displaced from the area as a result of cattle rustling activities in the area were not consulted yet they still retained interest in the land; that part of the land earmarked for conversion is an already adjudicated area of Ngelecha Sub Location since the year 1997; that the area had existing public utilities like schools, dispensaries, boreholes, churches and private property which were not taken into consideration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 7

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8. The petitioner further stated that the County Government of Baringo, also wrote to the then Cabinet Secretary for Environment, Natural Resources and Regional Development Authority, honorable Professor J Wakhungu on behalf of the Èndorois community objecting to the proposed gazettement of the community land and the letters were copied to the National Land Commission, and that despite these objections, Gazette Notice No 1470, was issued on March 11, 2016, purporting to declare the subject land as forest land. 9. The petitioner contends that the gazettement was irregular, discriminatory, and failed to comply with the constitutional and statutory requirements for converting unregistered community land into forest land, hence violated their rights. 10. The petitioner’s CEO Mr Richard Kamingóror, filed a further afidavit in response to the 2nd respondent’s replying afidavit sworn by Evans Kegode Aluda on May 21, 2025, and stated that the gazettment process of Mukutani forest was not a community- driven initiative but rather an action initiated by certain government oficers without involving the Endorois community who are the inhabitants of the land. The members of the community were displaced from their ancestral land and were neither consulted nor involved in the gazettement process. 11. Mr Kamingóror further deponed that if the IIchamus community planned and undertook the process of gazettment of Mukutani forest land, then the same was done without the knowledge, involvement, or concurrence of the Endorois community, despite the land being part of their ancestral community land. It was his contention that the due process was not followed and in particular, the matter was not tabled for discussions by the Baringo County government as required by law and all the leadership of the Baringo County government as well as the Endorois community objected to the gazettment. 12. According to the petitioner, the respondent made vague statements with the word “sometime” in reference to meetings which are vague and not context specific as no distinct date is provided thereby casting doubt on the accuracy and likelihood and intention of such meetings. 13. The petitioner further stated that on March 30, 2016 the Chair of the National Land Commission wrote to the then Cabinet Secretary, Ministry of Environment, water and Natural Resources suggesting the suspension of the Gazaette Notice pending a round table discussion with all stakeholders but the advice was not heeded. 1st 2nd and 5th Respondents’Case 14. The 2nd respondent filed a replying afidavit sworn by Evans Kegode Aluda, the Ag Manager Forest Survey & Information management, Kenya Forest Service dated May 21, 2025, and stated that the gazettment was a community-driven initiative to reserve community land as a forest reserve. 15. He stated that the community approached the Forester Marigat in 2013, and sought advice on reservation of the area for conservation, of which they cited displacement and destruction of water catchment area as the main concern. It was his disposition that the community made a presentation at the international colloquium held in Eldoret in March 2015 where the community highlighted the following specific reasons for gazettement of the hills as a forest: a. Politically instigated confiicts with Pokot neighbors and displacement of the community from their ancestral land since the year 2005. b. Denial of community to access sacred sites of cultural importance, c. Degradation of the water catchment and riparian vegetation upstream, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 8

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d. 16. Increasing poverty due to loss of traditional livelihood sources arising from the displacement of populations and displacements from homes. Mr Kegode deponed that the community resolved to address the various challenges through conservation of the hills by gazetting Mukutani Forest as a state forest and that the community belied that they would be guaranteed the following: a. Peace and security in the region in the long run, b. Required access to the cultural sites c. Improved water fiows for domestic and irrigation purposes from the rivers emanating from the hills, d. Economic empowerment through ecotourism and other non-consumptive uses of the forest. e. Opportunities for infrastructure and general development f. Community participation. 17. He further deponed that the due process was followed in the gazettment of the suit land as in 2013, Marigat Forester organized field visit for the Kenya Forest Service Oficers from Headquarters and that sometime in November 2013 stafi in the company of Baringo County Survey Department met the County Lands Adjudication Oficer, Zonal Forest manager, Forester Marigat, MCA Mukutani and the Chief Mukutani, whereby the County Surveyor identified the boundary with Laikipia and the Ngelesha Registration section. 18. According to Mr Kegode, KFS Oficers met with elders in Sirata village Mukutani division in 2013 and in 2014 a reconnaissance survey was done and the two block were identified and demarcation was done. That the recommendations were sent to the Kenya Forest Service Headquarters and the National Land Commission wrote a letter dated March 13, 2015 to initiate the gazettment process. 19. He also deponed that in 2015 the boundary survey was conducted, the two blocks surveyed with a total area of 13,195.8 Ha approximately, boundary Plan No 175/437 and Draft schedules were prepared in July 2015, checked and authenticated/approved by the Director of Surveys, and finally in November 2017 Mukutani Forest was gazetted vide Legal Notice No 166 of 2017 (Legal Notice No 265). Petitioner’s Submissions 20. Counsel for the petitioner filed submissions dated July 25, 2025, and identified the following issues for determination: a. Whether the land measuring approximately 13,195.8 hectares delineated on Survey plan No 17Sl437 and gazetted as Mukutani Forest on March 11, 20l6 was community land. b. Whether the National Land Commission was adequately consulted prior to the gazettement of the land as forest land, and whether the conversion and gazettement of the 13,195.8 hectares of community land as forest land followed due process. c. Whether there was adequate public participation as required in law in the conversion and gazettement of community land as forest land. d. Whether the petitioner is entitled to the reliefs sought. e. Who pays the costs of the petition? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 9

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21. On the first issue as to whether the land measuring approximately 131195.8 hectares delineated on Survey Plan No 1751437 and gazetted as Mukutani Forest on March 11, 2016, was community land, counsel relied on the definition of Community land as provided for under article 63 of the Constitution and submitted that the suit land is community land as the land is occupied and used by the Endorois community identified by ethnicity and cultural practices. 22. Mr Akang’o further submitted that suit land is owned by the Endorois community as community land under communal form of holding as per section 4(1) of the Community Land Act which provides that community land in Kenya shall vest in the community. 23. On the 2nd issue as to whether the National Land Commission was adequately consulted prior to the gazettement of the land as forest land, and whether the conversion and gazettement of the 13,195.8 hectares of community land as forest land followed due process, counsel submitted that the lawful process of conversion of land leading to its gazettment was not adhered to thereby contravening article 40 of the Constitution. 24. Counsel also relied on section 22 of the Community Land Act which provides for conversion of community land to public land, which is vide, compulsory acquisition, transfer or surrender. It was counsel’s submission that the gazettment was neither of the above and relied on the case of Patrick Musimba v National Land Commission & 4 others [2016] KEHC 5956 (KLR), where the court outlined the process of compulsory acquisition. 25. Counsel submitted that compulsory acquisition is initiated by the national or county government through the Cabinet Secretary or the relevant County executive Committee Member and in this case neither of the two initiated the process, the purported conversion of land cannot be deemed to constitute compulsory acquisition. 26. Additionally, that the process could not constitute a transfer as the applicable legal procedures were not followed. Section 22(1)(b) of the Community Land Act provides for transfer as one of the methods through which community land may be converted to public land but subsection 4 imposes two major restrictions for the transfer to be valid. It provides that community land shall not be transferred without prior approval by the members of the registered community in a community meeting and that the transfer should be in line with the land Act, and any other applicable law. 27. It was counsel’s submission that there are steps to be followed before conversion which were not complied with and from the 2nd respondent’s replying afidavit sworn by Evans Kegode, he deponed that the process of conversion was through surrender and that it was community driven initiative to reserve the community land as a forest reserve. 28. Counsel relied on section 19 of the Community Land Act Regulations, 2017 which stipulates the procedure to be followed for the conversion of community land to public use through surrender. 29. Mr Akang’o stated that the procedures under the above section was reafirmed in the case of National Land Commission v Afrison Export Import Ltd & 10 others [2019] KEELC 4569 (KLR), where the court outlined the process for surrender of community land, and submitted that the Endorois community was expected to convene an assembly of its members and come up with a resolution supported by two thirds of the assembly to set aside the land for conversion to forest land. The petitioner contended that they were excluded from the process resulting in the issuance of a letter of objection to the NLC and the Cabinet Secretary Ministry of Environment, Climate Change and Forestry upon discovery of the intention to gazette their land as a forest. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 10

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30. Counsel further relied on section 19(5) of the Community Land Act which provides that approval from the National Land Commission is required before community land can be converted for public purposes and the NLC upon being made aware of the intention to convert the community land to forest land in a letter dated March 31, 2015 and received in the ofices of Kenya Forest on April 20, 20l5, in the 2nd respondent's replying afidavit, the NLC requested consultations between itself and the Kenya Forest Service to initiate a process of determining the type of forests required and the extent of conservation needed in the area. 31. It was counsel’s submissions that there is no evidence that such consultations or further engagement were ever undertaken between the Director, Kenya Forest Service and the NLC as suggested in the letter, and instead, what followed was the gazettement on March 11, 2016 of Mukutani Forest vide gazette Notice Number 1470. 32. According to counsel, following the Gazette Notice dated March 11, 20l6, the NLC issued an objection on March 30, 20l6, outlining several conditions that were to be met before any further steps could be taken. The objection cited concerns raised by Baringo County leadership, including the presence of public utilities such as schools, a dispensary, churches, dams, boreholes, and an irrigation scheme, which could not legally be incorporated into a forest reserve. 33. Additionally, counsel cited section l9(3) of the Community Land Act which requires approval from the relevant county government and in this case, Baringo County Government, as custodian of unregistered community land, issued a letter dated March 30, 2016 objecting to the gazettement and expressly requesting that the Gazette Notice be revoked. The objection brings to question whether there was approval and concurrence/consensus of the community. 34. Similarly, on March 24, 2016, seven (7) Members of Parliament from the area also wrote to the Cabinet Secretary, Ministry of Environment and Natural Resources, objecting to the gazettement, but the same proceeded in complete disregard of the required approvals, the objections raised by the county government, the contributions and objections of the Endorois community as well as the recommendations and conditions set out by the National Land Commission. 35. Counsel relied on the case of Dina Management Ltd v County Government of Mombasa & Another [2023] KESC 30 (KLR), where the Supreme Court held that where the required procedure is not followed, leading to violation of the Constitution, any resulting action cannot stand as valid in law. The petitioner contends that the failure to follow the prescribed procedure in the alleged surrender process amounts to a violation of constitutional and statutory requirements, thereby invalidating the entire process and any actions arising from it. 36. On the third issue as to whether there was adequate public participation as required in law in the conversion and gazettement of community land as forest land the petitioner submits that the process failed to meet the threshold of the principles of public participation as defined in law, as the Endorois community, being the inhabitants and rightful beneficiaries of the land, ought to have been included in the process to ensure their interests were protected and their views considered. 37. Further that the Baringo County Government, as the custodian of unregistered community land on behalf of the community, was a necessary party and should have been consulted. Additionally, the National Land Commission, as a responsible agency for management and administration of all unregistered trust land pursuant to section 5(2) of the National Land Commission Act was required to be engaged, therefore the omission of these key stakeholders renders the process fundamentally fiawed. 38. Counsel noted from the purported community meetings that the same were not inclusive as the list of the attendees were exclusively members of the IIchamus community, despite the fact that mainly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 11

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the Endorois community inhabits the Arabal location. Further that the list of names merely contains names, ID numbers and signatures with no mention of the date, venue or time of the alleged meeting. There was no notice or invitation to the public or verifiable method of how the said meeting was convened, who called it and whether it was open to all afiected persons. 39. Additionally, counsel pointed out that the National Land Commission wrote a letter dated March 31, 2015 where it emphasized the need for consultation between Kenya Forest Service and relevant stakeholders, but there is no evidence that this was done prior to the gazettement. This led the community to raise an objection through a petition delivered to the NLC on November 11, 2015 and CS Ministry of Environment, signed by over 400 residents expressing their opposition. However, the objections raised, were ignored without reason or feedback from the respondents. 40. Mr Akang’o submitted on the principles of public participation, and relied on the Supreme Court case of British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) and the case of Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8436 (KLR) (Constitutional and Human Rights) (12 July 2024) (Ruling), and stated that the process fell short of the constitutional and legal threshold for public participation, as it lacked clarity of the subject matter, reasonable notice, proper sensitization of the afiected community, facilitation for meaningful engagement, inclusivity and fair representation, transparency, and due consideration of public views with reasons for the rejection. 41. Counsel therefore urged the court to find that the petitioners is entitled to the reliefs sought together with costs. 1st 2nd and 5th Respondents’Submissions 42. 43. Counsel for the 1st 2nd and 5th respondents identified issues for determination as follows: a. Whether the land subject to gazette Notice No 166 of November 2017 establishing Mukutani Forest is situated in Arabal location or Mukutani location? b. Whether the gazettement process under gazette Notice No 166 of November 2017 complied with the constitutional and statutory requirements for public participation and community consultations? c. Whether consultation with the National Land Commission was mandatory before gazettment of Mukutani Forest as a public forest under section 31(2) of the Forest Conservation and Management Act? d. Whether the gazettment of Mukutani Forest under gazette Notice No 166 of November 2017 was constitutional lawful and valid? e. Whether the petitioner has demonstrated any violation of constitutional rights warranting the reliefs sought/ On the first issue, counsel submitted that one of the fundamental issues in this petition is the geographical location of the land subject of the gazettement under Gazette Notice No 1470 of March 11, 2016. That the petitioner contends that the gazetted area, comprising Mukutani hills block and Lemaitai block totaling 13,195.8 hectares, is situated in Arabal location rather than Mukutani location. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 12

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44. Counsel submitted that the actual survey and demarcation of land boundaries fall within the purview of the Survey of Kenya as provided for by the Survey Act and Land Registration Act. Counsel asserted that due process was adhered to ensuring the precise location was gazetted, which was done by a multitiered verification process involving several competent authorities. That therefore the petitioner’s assertion that the land is situated in Arabal location lacks evidential foundation. 45. On the second issue on whether the gazettement process complied with the constitutional and statutory requirement for public participation, counsel submitted relied on article 10(2) of the Constitution on national values and articles 118 and 69 on public participation. Counsel also cited section 31 of the Forest Conservation and Management Act 2016 which provides for the creation and management of public forests 46. Ms Nyambura submitted that the Act specifically empowers the Cabinet Secretary to gazette public forests upon recommendation by the board of Kenya Forest Service and in consultation with the National Land Commission, following proper technical and administrative processes. Therefore the public participation process was both comprehensive and inclusive and that the gazettement was initiated by the IIchamus community themselves responding to their legitimate concerns about environmental degradation and destruction of critical water catchment area. 47. Counsel relied on the cases of Poverty Alleviation Network and Others v President of the Republic of South Africa and others (CCT86/08) [2010] ZACC 5; 2010 (6) BCLR 520 (CC) (24 February 2010) and Khelef Khalifa & 2 others v Independent Electoral and Boundaries Commission & another [2017] eKLR, on the principles of public participation and submitted that the 2nd respondent applied the established legal principles to the gazettement process in this case. Additionally there was adequate notice and that the participation was meaningful. 48. Ms Nyambura further submitted that it was not mandatory to consult with the National Land Commission for all forest gazettements and that the process having been initiated by the IIchamus community, it follows that the land was not unalienated as it was subject to community occupation and use. Counsel therefore stated that the land subject to gazettment does not fall within the categories specified in section 31(2) of the Forest Conservation and Management Act that would trigger the mandatory consultation requirement with the National Land Commission. 49. Additionally, on the issue of whether the gazettement was valid, counsel relied on article 69 of the Constitution and submitted that the gazettement directly serves as an environmental protection objective to protect the critical water catchment areas 50. Counsel therefore concluded that the gazettement was valid and met the process of the threshold for public participation and urged the court to dismiss the petition with costs to the respondents. Analysis and Determination 51. The petitioner and the respondents gave an elaborate background to the petition which has been helpful to the court since the petition was canvassed by way of afidavit evidence and submissions. The documents attached have also illuminated the genesis of the gazettement leading to the current dispute. 52. Flowing from the petition and the afidavits, the issues for determination in this Petition are as follows: a. Whether the land measuring approximately 13,195.8 hectares delineated on Survey plan No 17Sl437 and gazetted as Mukutani Forest on March 11, 20l6 was community land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 13

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b. Whether the National Land Commission was adequately consulted prior to the gazettement of the land as forest land, and whether the conversion and gazettement of the 13,195.8 hectares of community land as forest land followed due process. c. Whether consultation with the National Land Commission was mandatory before gazettment of Mukutani Forest as a public forest under section 31(2) of the Forest Conservation and Management Act? d. Whether there was public participation as required in law in the conversion and gazettement of community land as forest land. e. Whether the petitioner is entitled to the reliefs sought. f. Who pays the costs of the petition? 53. On the first issue as to whether the land measuring approximately 131195.8 hectares delineated on Survey Plan No 1751437 and gazetted as Mukutani Forest on March 11, 2016, was community land, it is not in dispute that the suit land was community land. 54. This is admitted by the respondents that the process of conversion of the suit land to forest land was community led who were identified as the IIchamus whom they alleged approached Marigat Forester to help in the conservation and converting the community land into a state forest. This was elaborately explained in the 2nd respondent’s replying afidavit sworn by Evans Kegode Aluda, who deponed that the community resolved to address the various challenges through conservation of the hills by gazetting Mukutani Forest as a state forest and that the community belied that they would be guaranteed peace, security, access to cultural sites, improved water fiow for domestic and irrigation purposes, economic empowerment. 55. What was the purpose of engaging the community if they did not have a stake in the land? The petitioner stated that the Endorois community has historically occupied and utilized land in Arabal Location for grazing, settlement, cultural practices, and other community livelihood activities. The Endorois fall within the definition of community land as provided for under article 63 of the Constitution as follows: (1) Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest. (2) Community land consists of-(a) land lawfully registered in the name of group representatives under the provisions of any law; (b) land lawfully transferred to a specific community by any process of law; (c) any other land declared to be community land by an Act of Parliament; and (d) land that is-(i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; (ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 14

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(iii) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under article 62(2). (3) Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held. (4) Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively. (5) Parliament shall enact legislation to give efiect to this article. 56. Therefore there is no doubt that the land which is the subject matter of this suit is community land. Counsel for the respondents submitted on an issue whether the gazetted suit land is situated in Arabal location or Mukutani location, this is an issue that never arose in the replying afidavit and there was no map or any other evidence adduced on the issue for determination. It can therefore not be raised in submissions as the petitioner may not be able to clarify the same. The respondent raised the issue of the geographical location which counsel said was done by experts but there was no evidence to rebut the claim that the suit land is situated in Arabal location. 57. On the 2nd issue as to whether the National Land Commission was adequately consulted prior to the gazettement of the land as forest land, and whether the conversion and gazettement of the 13,195.8 hectares of community land as forest land followed due process, there are laid down procedures of conversion of land from community land to public or private and vice versa. If such procedures are not followed then the process is fiawed and contravenes the rights of the parties who are afiected by the anomaly. 58. Section 22 of the Community Land Act provides for ways in which community land can be converted to public land, namely; vide compulsory acquisition, transfer or surrender. It is noted from the 2nd respondent’s replying afidavit sworn by Evan Kegode that the process of conversion was through surrender as it was a community–driven initiative. If that was the case, then the respondents should have complied with the provisions of section 19 of the Community Land Act Regulations 2017 which stipulates the procedures for conversion of community land to public use through surrender as follows: 59. Section 19. Setting a community land for public purposes: (1) A community may through the resolution of at least two thirds, of the community assembly set aside land for an identified public purpose (2) Where the intended public purpose that was not in the approved development plan, the community shall consult the relevant authority responsible for county planning for direction. (3) Upon recommendation from the planning authority, the community shall cause the preparation of a physical development plan for the land to be set aside and forward the plan to the relevant county government for approval. (4) The approved physical development plan for the land to be set aside for public purpose shall be forwarded to the National Land Commission for publication in the Gazette within fourteen days. (5) After publication in the Gazette, the Commission shall reserve the land to the relevant public entity in accordance with the Land Act Cap 280. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 15

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60. The respondents submitted that they complied with the requirements for gazettement of community land as a state forest. It is interesting to note that the respondent gave confiicting evidence and submissions. The respondent stated that there was adequate consultation with the stakeholders and the National Land Commission prior to gazettement, but counsel submitted that the land subject to gazettment does not fall within the categories specified in section 31(2) of the Forest Conservation and Management Act that would trigger the mandatory consultation requirement with the National Land Commission. 61. From the evidence it is clear that after the people became aware of the gazettement, National Land Commission wrote a letter dated March 30, 20l6, outlining several conditions that were to be met before any further steps could be taken. The objection cited concerns raised by Baringo County leadership, including the presence of public utilities such as schools, a dispensary, churches, dams, boreholes, and an irrigation scheme, which could not legally be incorporated into a forest reserve. 62. It is evident that there were many objections to the gazettement as can be seen from the letters written by NLC, the Baringo County government and specifically that on March 24, 2016, seven (7) Members of Parliament from the area also wrote to the Cabinet Secretary, Ministry of Environment and Natural Resources, objecting to the gazettement, but the same proceeded in complete disregard of the required approvals, the objections raised by the county government, the contributions and objections of the Endorois community as well as the recommendations and conditions set out by the National Land Commission. 63. This shows that the gazettement did not adhere to the laid down procedures of due process and constitutional and statutory imperatives. This was impunity at play. 64. On the issue whether there was meaningful public participation, prior to the gazettement of the community land as forest land, article 10(2) a of the Constitution outlines public participation as one of the national values and principles of governance which bind all state organs and public oficers. Similarly article 69(1)(d) of the Constitution on the other hand provides that: …the State shall encourage public participation in the management, protection and conservation of the environment.” 65. The Supreme Court case of British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) established the following guiding principles for public participation as follows: i. As a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance. ii. The public oficer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give efiect to this constitutional principle using reasonable means. iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 16

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66. v. Public participation is not an abstract notion; it must be purposive and meaningful. vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis. vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis. ix. Components of meaningful public participation include the following: a. clarity of the subject matter for the public to understand; b. structures and processes (medium of engagement) of participation that are clear and simple; c. opportunity for balanced infiuence from the public in general; d. commitment to the process; e. inclusive and efiective representation; f. integrity and transparency of the process; g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. Similarly, in the Court of Appeal case of Kiambu County Government & 3 others v Robert N Gakuru & others [2017] eKLR, the court held that: “ [20] …The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. the Constitution in article 10 which binds all state organs, state oficers, public oficers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation,..” 67. The court also emphasized that public participation must include and be seen to include the dissemination of information, invitation to participate in the process and consultation on the legislation. That is, people must be accorded an opportunity to participate in the legislative process and this is a question of fact to be proved by the party that was required to comply with this constitutional requirement that indeed there was compliance. 68. From the minutes that were attached to the replying afidavit by the respondent, the heading indicated that it was for IIchamus community leaders, whose names and ID numbers were afixed together with their signatures. I notice that all the persons who attended knew how to write and their signatures were almost similar. No one thumb printed. This means that the level of literacy is very high or there was a criterion of choosing only those who could read and write. 69. There were no attachments of notices of invitation for the meetings, whether there was adequate notice for the people to attend and where. These records are important for transparency. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 17

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70. In the case of Richard Owuor & 2 others (Suing on behalf of Busia Sugarcane Importers Association v Cabinet Secretary, Ministry of Agriculture Livestock, Fisheries and Cooperatives & 8 others [2020] eKLR, Justice Mrima made the following observations: “ Consultations or stakeholder’s engagement tends to give more latitude to key stakeholders in a given field to take part in the process towards making laws or formulations of administrative decisions which to a large extent impacts on them. That is because such key stakeholders are mostly afiected by the law, policy or decisions in a profound way. Therefore, in appropriate instances a Government agency or a Public Oficer undertaking public participation may have to consider incorporating the aspect of consultation or stakeholder’s engagement…" 71. Even if the respondent was to submit that they consulted the leaders or representatives, which leaders did they consult and yet the same leaders raised objections but their objections were ignored. This is fortified by a petition that was filed in the National Assembly to the Public Petitions Committee by the Baringo residents challenging the declaration of Mututani as a public forest. The committee established that there was insuficient public participation and a lack of consultation with the National Land Commission and all the afiected communities which directly contravened the Constitution and the Forest Conservation and Management Act. The recommendations might not be binding to the court but are persuasive as this issue has been in the limelight where while this matter was pending in court a school was demolished on the suit land. 72. Having found that there was lack of public participation prior to the gazettement of the community land to a forest, it follows that the respondents did not adhere to the laid down procedures of conversion of community land to public land. 73. If the afiected communities and the respondents so wish to convert the community land to public forest, then they are at liberty to follow the laid down procedures under the Community Land Act, Forest Conservation and Management Act, with the real members of Endorois community, through transparency, and meaningful participation not box ticking. I therefore find that the petitioner is entitled to the orders sought and issue the following specific orders: a. A declaration is hereby made that Arabal Location is community land within the meaning of article 63 of the Constitution, and that the County Government of Baringo holds it in trust for the community until registration is completed under the Community Land Act. b. A declaration is hereby made that consultation with the National Land Commission was mandatory before the declaration of Mukutani Forest which is part of Arabal Location and Community land to be a public forest pursuant to section 31(2) of the Forest Conservation and Management Act, 2016. c. A declaration that the gazettment of Arabal Location as a forest under Gazette Notice No 1470 of March 3, 2016 was unconstitutional, unlawful, null and void ab initio. d. A declaration is hereby made that any dealings with or any decisions concerning Arabal Location community land rights can only be undertaken in consultation and with participation of the Endorois Community in compliance with articles 10,63, and 232 of the Constitution. e. An order of certiorari is hereby made to quash Gazette Notice No 1470 of March 3, 2016, which purported to establish Arabal Location as a forest. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 18

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f. A permanent injunction restraining the respondents, their agents, or any persons acting under their instructions from evicting, displacing, or interfering with the petitioners’ use occupation, and enjoyment of the community land within Arabal Location. g. Costs of the petition to the petitioner. DATED, SIGNED AND DELIVERED AT NAKURU THIS 4TH DAY OF FEBRUARY 2026. M. A. ODENY JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/432/eng@2026-02-04 19

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