Langat & another (Suing on behalf of Talai Community Clan Organization) v Kenya Forest Service & 2 others (Environment and Land Petition E004 of 2025) [2026] KEELC 3624 (KLR)

INTRODUCTION. 1. The Petitioners commenced the present proceedings vide the Petition dated 27th February, 2025. 2. The Petitioners aver that they are the Chairman and Secretary General of the Talai community clan organization a duly registered community-based organization. 3. The Petitioners also aver that on 8th October 2001 and pursuant to legal notice No.153, there was an alteration of Boundaries of the West of Mau Forest which excluded LR No. 25005. 4. The Petitioners further aver that the said land was identified as a suitable area for the resettlement of the Talai community who were historically marginalized and internally displaced as a result of the pre- and post-colonial setup in the Republic of Kenya. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 2 of 48

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5. It is the Petitioners averment that various Government Agency recommendations were issued and the resettlement program commenced. 6. It is also the Petitioners averment that despite the resettlement program being ongoing, the 1st Respondent has been uncooperative in ascertaining the boundaries of LR No. 25005 and continues to claim the said parcel of land. 7. It is further the Petitioners averment that the 1 st Respondent’s actions have led to the stalling of the resettlement program. 8. The Petitioners aver that the 1st Respondent’s actions have occasioned suffering to the members of the Talai Community who are homeless and destitute. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 3 of 48

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9. The Petitioners also aver that the Respondents are currently implementing a similar Court’s decision with regard to Gazette Notices that affect the East of Mau Forest. 10. The Petitioners also aver that they feel discriminated against given the similarities in the purpose of altering the forest boundaries. 11. The Petitioners further aver that the 3 rd Respondent has the mandate of coordinating government administrative actions. They go on to state that the 3rd Respondent has failed to execute its mandate which is to their detriment as they have a legitimate expectation that they will be resettled on the said parcel of land. 12. It is the Petitioners averments that this Court pronounced itself in Nakuru ELC Petition No. 11 of 2020 on the validity of the gazette notices that altered the boundaries of Eastern Mau Forest. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 4 of 48

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13. It is also the Petitioners averment that the Respondents are discriminating against them by implementing the resettlement exercise in the East of Mau and neglecting them. They go on to state that they are the beneficiaries of LR 25005 which was excised from West of Mau. 14. It is further the Petitioners averment that they are apprehensive that LR No. 25005 is attracting trespassers who are taking advantage of the unclear ownership status of the said parcel of land. 15. The Petitioners aver that their rights under Articles 40 & 47 of the Constitution and Section 7(2)(k) of the Fair Administrative Actions Act,2015, have been infringed. 16. The Petitioners seek the following orders: a. A declaration do issue that Legal Notice Number 153 of 8th October, -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 5 of 48

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2001 excluded LR 25005 from the 1st Respondent land(sic). b. An order compelling Respondents to facilitate the the Petitioners in so far as ascertaining boundaries over LR 25005 is survey be conducted concerned. c. A joint between the 1st Respondent and the Petitioners with a ascertaining boundaries view of over LR 25005 d. The 3rd Respondent be compelled to provide security and supervise the resettlement of the Petitioners over LR 25005. e. Any other relief the Court may deem just and expedient in the circumstances. f. That the costs of this Petition be borne by the Respondent (sic). THE PETITIONERS CONTENTION. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 6 of 48

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17. This Petition is supported by the affidavit of David Kiprono Langat the 1st Petitioner. It is sworn on the 27 th February 2025. 18. He contends that he has the authority of his co-petitioner to swear the affidavit. 19. He reiterates that on 8th October 2001, vide legal notice number 153, there was an alteration of the boundaries of the West Mau Forest which resulted in the exclusion of LR No.25005 from being part of forest land. 20. He also contends that prior to the said legal notice, there was a 28-day notice of the intention to alter boundaries to exclude LR No. 25005 vide gazette notice No. 891 of 30 th January,2001. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 7 of 48

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21. He further contends that the main objective of the alteration of boundaries was for the establishment of a settlement scheme for the landless. 22. It is his contention that that the County Government of Kericho issued an approval that allowed LR No.25005 to be used for the purposes of the settlement of the Talai Community. 23. It is also his contention that the County Government of Kericho has in the past made public the proposed subdivision of LR No. 25005 and no objection has ever been raised with respect to the proposed subdivision. 24. It is further his contention that 516 members of the Petitioners Community are to be resettled on LR No. 25005. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 8 of 48

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25. He contends that they have on a number of occasions notified the 3rd Respondent of their intention to ascertain the boundaries of LR No. 25005 but the 3rd Respondent has been uncooperative leading to the delay in their resettlement. 26. He also contends that if the 1 st Respondent was acting in good faith, it would have accorded them the right to be heard and clarified the circumstances surrounding their claim over LR No. 25005 before regarding it as part of forest land. 27. He further contends that vide a letter dated 29 th March, 2023, the Respondents stated that LR No. 25005 was part of forest land. 28. It is his contention that it is extremely unprocedural for the Respondents to ignore their plight and contend that LR No. 25005 is still forest land. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 9 of 48

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29. He reiterates that this Court pronounced itself on the validity of the Gazette Notices that altered the boundaries with regard to the alteration of boundaries of Eastern Mau Forest in Nakuru ELC Petition No. 11 of 2020. He goes on to state that they are facing the same predicament in the west of Mau Forest. 30. He ends his deposition by stating that this Court has jurisdiction to issue the orders sought. THE RESPONDENTS RESPONSE. 31. In response to the Petition, the Respondents filed a Replying Affidavit sworn by Evans K. Aluda the Ag. Manager, Forest Survey and Information Management at the Kenya Forest Service. It is sworn on 12th August, 2025. 32. He deposes that the South Western Mau Forest Block is a public forest which is vested in the Kenya Forest services in -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 10 of 48

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accordance with the Forest Conservation and Management Act, 2016. 33. He also deposes that the South Western Mau Forest Block covering an area of 90,731.3 Ha (224,197 acres) was gazetted as a Forest Reserve vide proclamation No. 44 of 1932. 34. He further deposes that Legal Notice No. 153 of 2001 depicts the suit property as measuring approximately 323.7 Ha and refers to boundary plan No.175/395. 35. It is his deposition that Boundary Plan No. 175/395 was irregular as it was not prepared by the 1st Respondent’s Survey and Mapping Department. 36. It is also his deposition that the 1 st Respondent conducted a survey of the suit property and found that it measures -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 11 of 48

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approximately 443.5 Ha contrary to the contents of Legal Notice No. 153 of 2001. 37. It is further his deposition that the unprocedural excision of the suit parcel of land was corroborated by the Ndung’u Land Report which recommended that the excisions under Legal Notice No. 153 of 2001 be revoked and the land be maintained as a forest area. 38. He deposes that the Ndung’u Land Report noted that an environment impact assessment was not conducted prior to the alleged excision of the suit property proving that the excision process was irregular. 39. He also deposes that in light of the fact that the excision process by the Petitioners was un procedural, the Petitioners have consequently failed to establish their right over the suit property and are not entitled to the reliefs sought. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 12 of 48

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40. He further deposes that he is advised by Counsel for the Respondents that the Gazette Notices altering boundaries in reference to the Eastern Mau Forest in Nakuru ELC Petition No. 11 of 2020 have no bearing in the instant suit. 41. It is his deposition that he is advised by Counsel for the Respondents that the Petition has fallen short of the statutory threshold required in constitutional petitions. 42. It is also his deposition that the Petitioners have failed to prove that they act on behalf of the Talai Community. He goes on to state that the Petitioners have not provided any resolution passed by the Talai Community to act on their behalf in the present suit. 43. He ends his deposition by stating that the Petition is frivolous, misconceived and it ought to be dismissed with costs. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 13 of 48

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THE PETITIONERS RESPONSE TO THE RESPONDENTS REPLYING AFFIDAVIT. 44. The Petitioners filed a Supplementary Affidavit sworn on 27 th January, 2026 by the 1st Petitioner in response to the Respondents’ Replying Affidavit. 45. He deposes that the Legal and Gazette Notices referred to by the Petitioners form part of the laws of Kenya until they are revoked. 46. He also deposes that LR No. 25005 no longer forms part of Forest Land. 47. He further deposes that vide a letter dated 15 th January, 2006, the Director of Surveys confirmed that boundary Plan No. 175/395 exists in their offices and it supports gazette notice No. 891 of 2001. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 14 of 48

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48. It is his deposition that the Respondents response confirms that there has been a hindrance to the Petitioners occupation of the suit parcel of land. 49. It is also his deposition that the Petition herein is specific to LR No. 25005 and they do not claim land forming part of the forest. 50. It is further his deposition that if the Court issues an order for the joint survey as sought, then the boundaries of the said parcel will be properly captured. 51. He ends his deposition by stating that it is in the interest of justice that the prayers sought be granted as the Respondents will not be prejudiced in any way. ISSUES FOR DETERMINATION. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 15 of 48

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52. The Petitioners filed submissions on 3 rd November, 2025 while the Respondents filed their submissions on 3 rd September, 2025. 53. The Petitioners submit on the following issues; a. Whether there is a Gazette Notice altering the 1st Respondent’s boundaries. (sic) b. Whether the Gazette Notice is valid. c. Whether the Talai community have a legitimate expectation for re- settlement. d. Whether there are approvals warranting the resettlement of Talai Community over LR No. 25005 in support of the prayers sought (sic). 54. On the first issue, the Petitioners submit that Legal Notice No. 153 of 8th October, 2001 and Gazette Notice No. 891 of 30th January, 2001 altered the boundaries of forest land and excluded LR No. 25005 from forming part of the forest. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 16 of 48

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55. The Petitioners also submit that the said Legal and Gazette Notices were attached to the affidavit in support of the Petition sworn by David Kiprono Langat on 28th February, 2025. 56. On the second issue, the Petitioners submit that the said gazette notices are valid and LR No. 25005 has not reverted back to the 1st Respondent. 57. The P etitioners rely on the judicial decision of Hon. Samuel Kipkemoi Tonui vs Kenya Forest Service [2024] eKLR and submit that Courts have held that unless a gazette notice is revoked, its legal effect is binding. 58. On the third issue, the Petitioners rely on the judicial decisions of Kenya Revenue Authority vs Export Tading Co. Ltd [2022] KESC 31, Kenya Human Rights vs NonGovernmental Organization Coordination Board [2016]eKLR and submit that the National Land Commission, the Ministry of Lands and the County Government of Kericho -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 17 of 48

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identified LR No. 25005 as ideal for the resettlement of the Talai Community. 59. It is the Petitioners submissions that they have attached documentary evidence depicting the said position and the 1 st Respondent should be estopped from claiming LR No. 25005. 60. It is also the Petitioners submissions that from the conduct of the government and the assurances made to the Talai Community, a legitimate expectation has been established that LR No. 25005 no longer belongs to the Kenya Forest Service and it is reserved for the resettlement of the Talai Community. 61. On the fourth issue, the Petitioners submit that they have availed to Court various acknowledgements, approvals and correspondences in support of their claim that LR No. 25005 is no longer forest land. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 18 of 48

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62. The Petitioners also submit that they have attached a letter to the affidavit in support of the Petition marked as DKL-4 which confirms that LR No. 25005 was hived from west of Mau forest with the intentions of establishing a settlement scheme. 63. The Petitioners further submit that the document marked as DKL-5 that is attached to the affidavit in support of the Petition, is the County Assembly of Kericho – Committee on Lands, Housing and Physical Planning & Resettlement Report which is dated 16th March, 2021. 64. It is the Petitioners submissions that the said report recommends the approval of the no objection regarding the request to use LR No. 25005 for purposes of settling members of the Talai Community. 65. It is also the Petitioners submissions that the document attached and marked DKL-6 to the affidavit in support of the -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 19 of 48

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Petition is a Notice published by the County Government of Kericho showing the proposed subdivision of LR No. 25005. 66. It is further the Petitioners submissions that various correspondences have been availed to Court that without a doubt show that the Petitioners were historically displaced and they were therefore rightly identified for resettlement on LR No. 25005. 67. The Petitioners submit that the document attached to their Supplementary Affidavit which is marked DKL1a is a certified map that shows where LR No. 25005 is situated. 68. The Petitioners also submit that the said map shows that the suit parcel of land does not form part of forest land. 69. The Petitioners rely on Article 43 of the Constitution of Kenya and urge the Court to allow the Petition as prayed. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 20 of 48

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70. The Respondents submit on the following issues; a. Whether the Petitioners have locus standi to file the Petition. b. Whether the Petition meets the threshold of Constitutional Petitions. c. Whether the orders sought are merited. d. Costs of the Petition. 71. On the first issue, the Respondents rely on Order 1 Rule 13(1) & (2) of the Civil Procedure Rules, the judicial decisions of Alfred Njau & 5 Others vs City Council of Nairobi [1983] Research Institute eKLR, v Kenya Anthony Trypanosomiasis Kabimba Gusinjilu (Suing for and on behalf of 112 Plaintiffs) C.A Civil Appeal No. 212 of 2015 [2015] eKLR and submit that the Petitioners have not filed any document to prove the existence of the Talai Community Clan Organization. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 21 of 48

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72. The Respondents also submit that the Petitioners have not produced a list of individuals from the alleged organization that grant the Petitioners authority to file the Petition. 73. The Respondents further submit that the Petitioners don’t have a right of audience before the Court and therefore the Petition ought to be dismissed with costs. 74. On the second issue, the Respondents rely on the judicial decision of Annarita Karimi Njeru vs Republic [1979] KLR and submit that the Petitioners contend that their rights under Article 40 of the Constitution were violated. 75. The Respondents also submit that the suit parcel of land forms part of forest land and the Petitioners have failed to demonstrate how the protection and conservation of public forest land violated their constitutional rights. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 22 of 48

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76. The Respondents further submit that the Petitioners are using the Constitution to disguise their attempts to claim public land through an illegal and unprocedural process. 77. On the third issue, the Respondents submit that the South Western Mau Forest was gazetted as a Forest Reserve vide Proclamation No. 44 of 1932. 78. It is the Respondents submissions that the validity of Proclamation No. 44 of 1932 was addressed by the Supreme Court in Pati Limited vs Funzi Island Development Limited & 4 Others (Petition 37 of 2019) [2021] KESC 29 (KLR). 79. It is also the Respondents submissions that the suit property is a public forest and it is managed by the 1 st Respondent. The Respondents rely on Section 31(1) of the Forest Conservation and Management Act in support of their submissions. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 23 of 48

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80. It is further the Respondents submissions that Section 34 of the Forest Conservation and Management Act describes the procedure for variation of boundaries of forest land and the revocation of the registration of a public forest. 81. The Respondents submit that the Petitioners are required to submit a Petition before the National Assembly upon recommendation by the 1st Respondent. 82. The Respondents also submit that the Petitioners have not demonstrated that they complied with the said procedure. 83. The Respondents further submit that they have observed that there were various discrepancies in the procedure followed by the Petitioners which will render the entire process irregular. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 24 of 48

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84. It is the Respondents submissions that the excisions of the Mau Forest Complex vide the Legal Notices issued in the year 2001 were nullified by the Court in Joseph Letuya & 21 Others vs Attorney General & 5 Others [2014] KEHC 6421 (KLR). 85. It is also the Respondents submissions that Legal Notice No. 153 of 2021 inaccurately states that the suit parcel of land measures approximately 323.7 Ha and refers to boundary Plan No. 175/395. 86. It is further the Respondents submissions that the said boundary plan was prepared fraudulently and the suit parcel of land actually measures 443.5 Ha as depicted in survey Plan No. F/R No. 588/144. 87. The Respondents reiterate the averments in their Replying Affidavit, rely on the judicial decision of Timothy Ingosi and 87 Others vs KFS & 2 Others [2016] eKLR and -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 25 of 48

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submit that the Petitioners are not entitled to the prayers sought. 88. The Respondents rely on Section 27 of the Civil Procedure Act, the judicial decision of Joseph Oduor Anode vs Kenya Red Cross Society [2012] eKLR as was cited in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014]eKLR and urge the Court to dismiss the Petition with costs. ANALYSIS AND DETERMINATION. 89. After considering the Petition, the response thereto, the supplementary affidavit and the rival submissions, it is my view that the following issues arise for determination; a. Whether the Petitioners have the locus standi to commence the present proceedings. b. Whether the jurisdiction of this Court was properly invoked. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 26 of 48

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c. Whether the Petitioners are entitled to the orders sought in the Petition. d. Who should bear the costs of the Petition. A. Whether the Petitioners have the locus standi to commence the present proceedings. 90. The Respondents submit that the Petitioners do not have the locus standi to commence the present proceedings on behalf of the Talai Community. 91. The Respondents also submit that the Petitioners have not filed any documents to show the existence of the Talai Community Clan Organization and neither have they produced a list of the members of the said organization. 92. The Respondents further submit that the Petitioners do not therefore have a right of audience before this Court. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 27 of 48

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93. The Petitioners did not submit on this issue. 94. The Court of Appeal in Njau & 5 others v City Council of Nairobi [1983] KECA 56 (KLR) held as follows; “The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.” (Emphasis mine) 95. In the Petition, the Petitioners contend that they are suing on behalf of the Talai Community Clan Organization which represents the interests of the members of the Talai Community. 96. The Petitioners allege violation of their rights under Articles 40 and 47 of the Constitution among other provisions of the law. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 28 of 48

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97. The Petitioners have attached a copy of a Resolution of the Talai Community Clan Organization to the affidavit in support of the Petition. 98. The Resolution is pursuant to Min/1/2/25 and it states that, David Kiprono Langat and Ngeno K. Kenet, being the Chairman and Secretary of the Talai Community Clan Organization, are authorized to institute a suit on behalf of the organization with regards to LR No. 25005 on their behalf and on behalf of the general public. 99. The Resolution is dated 28th February, 2025 and it signed by the Patron and Secretary whose names are not disclosed. 100. Article 22(1) & (2) of the Constitution of Kenya provides as follows; “22. (1) Every person has the right to institute Court proceedings -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 29 of 48

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claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. (2) In addition to a person acting in their own interest, Court proceedings under clause (1) may be instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members. (Emphasis mine) 101. In the judicial decision of Sangahani & 2 others (For and on Behalf of Parklands Residents Association) v Nairobi City County Government & 5 others; 108 (Interested Party) [2025] KEELC 6985 (KLR) the Court -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 30 of 48

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while considering the issue of whether or not the Petitioners in the said suit had locus standi, relied on Articles 22 and 70 of the Constitution of Kenya and held as follows; “Guided by these constitutional provisions, it is correct to say that any person seeking for enforcement of rights under the Bill of Rights and environmental rights may file petitions on their own behalf and even on behalf of the general public. The Petitioners as such have the requisite locus.” (Emphasis mine) 102. In the above cited judicial decision, the Court held that any person seeking enforcement of rights under the bill of rights can file petitions on their own behalf and on behalf of the general public. 103. The Constitution provides that every person has the right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 31 of 48

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infringed, or is threatened. This can be done by a person acting; on their own interest or on behalf of another person or as a member of, or in the interest of, a group or class of persons or in the public interest. 104. Apart from a person, an association acting in the interest of one or more of its members has the right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. 105. That being the case, I find that, the Petitioners have locus standi to institute these proceedings. B. Whether the jurisdiction of this Court was properly invoked. 106. As stated, the Petitioners contend that they are the Chairman and Secretary General of the Talai Community -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 32 of 48

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Clan Organization which represents the interests of the members of the Talai Community. 107. The Petitioners also contend that on 8 th October, 2008, Legal Notice No. 153 was issued and it had the effect of altering the boundary of the West of Mau Forest and excised LR No. 25005 from the forest. 108. The Petitioners further contend that LR No. 25005 was identified as a suitable area for the resettlement of the Talai Community who are marginalized and internally displaced. 109. It is the Petitioners contention that various government agency recommendations were issued for their resettlement on the suit parcel of land but the 1 st Respondent has been uncooperative. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 33 of 48

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110. It is also the Petitioners contention that the 1 st Respondent declined to cooperate in the ascertainment of boundaries of LR No. 25005 and claimed that it was part of forest land. 111. It is further the Petitioners contention that they feel discriminated against because the Respondents are implementing similar gazette notices which are in East of Mau Forest. 112. The Petitioners therefore contend that their rights under Articles 40 and 47 of the Constitution have been infringed. 113. Among the documents attached to the affidavit in support of the Petition is a copy of Legal Notice No. 153 dated 8 th October, 2001 which states as follows; “ALTERATION OF BOUNDARIES- WESTERN MAU FOREST. IN EXERCISE of the powers conferred by Section 4 (1) of the Forests Act, the Minister declares that for the Environment boundaries of Western Mau Forest, be altered so -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 34 of 48

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as to exclude the area described in the schedule thereto. SCHEDULE An area of approximately land measuring 323.7 hectares, known as LR No. 25005, lying within and adjoining the south-western boundary of Western Mau Forest, situated approximately 7 kilometers east of Kericho Municipality, Kericho District, Rift Valley Province, the boundaries of which are more particularly delineated, edged red, on boundary plan No. 175/395, which is signed and sealed with the seal of the Survey of Kenya and deposited at the Survey Records Office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the office of the District Forest Officer, Forest Department, Kericho District.” 114. The Legal Notice is issued by N.K Ngala the then Minister for Environment. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 35 of 48

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115. The Petitioners have also attached a copy of Gazette Notice No. 891 issued on 30th January, 2001. The Gazette Notice is issued under the Forests Act and gives a twenty-eight-day notice of the intention to declare the alteration of the boundaries of the Western Mau Forest. The Gazette Notice is issued by F.M Nyenze the then Minister for Environment. 116. A copy of a letter dated 9 th February, 2023 written by Kennedy N. Githunguri, the Director – Directorate of Land Adjudication and Settlement and addressed to the County Land Adjudication and Settlement Officer, Kericho is also attached. The reference of the letter is “LR No. 25005 – Squatter Settlement”. The letter refers to Legal Notice No. 153 of 8th October, 2001 and Gazette Notice No. 891 of 30 th January, 2001 and states that a portion of land measuring 323.7 Ha was hived off Western Mau Forest for the settlement of the landless. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 36 of 48

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117. The letter also states that the County Executive and the County Assembly approved the settlement and it directs the County Land Adjudication and Settlement Officer, Kericho to liaise with the relevant authorities and prepare a workplan to facilitate the implementation of the program. 118. The Respondents on the other hand contend that South Western Mau Forest is a public forest which was gazetted as a Forest Reserve vide Proclamation No. 44 of 1932. 119. The Respondents also contend that LR No. 25005 was unprocedurally excised vide Legal Notice No. 153 of 2001. 120. The Respondents further contend that Legal Notice No. 153 of 2001 referred to boundary plan No. 175/395 and stated that LR No. 25005 measures 323.7 Ha. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 37 of 48

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121. It is the Respondents contention that boundary plan No. 175/395 was irregular as it was not prepared by the 1 st Respondent’s survey and mapping department. 122. It is also the Respondents contention that they resurveyed LR No. 25005 and found that it measures approximately 443.5 Ha. 123. It is further the Respondents contention that the Ndung’u Land Report observed that no Environment Impact Assessment was done before LR No. 25005 was excised and therefore the process of excision was irregular. 124. The Respondents also contend that the gazette notices altering the boundaries of the Eastern Mau Forest have no bearing to the present suit. 125. Among the documents attached to the Respondents Replying Affidavit is a copy of Proclamation No. 44 of 1932. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 38 of 48

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126. On one hand, the Petitioners contend that LR No. 25005 was excised from forest land vide Legal Notice No. 153 of 8 th October, 2001 for purposes of the settlement of the members of the Talai Community while on the other hand, the Respondents contend that the suit parcel of land was unprocedurally excised and it still forms part of forest land. 127. The Respondents also contend that LR No. 25005 is public land and the Petitioners are illegally and unprocedurally claiming it. 128. It is apparent that the central issues in dispute are whether LR No. 25005 was procedurally excised from the South Western Mau Forest Block and/or whether LR No. 25005 is public land and/or whether LR No. 25005 is intended or has been set aside for resettlement of the Talai Community. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 39 of 48

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129. Further, the prayers sought in the Petition shed light on the nature of dispute for determination by this Court. 130. The said prayers have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference. They are: a. A declaration do issue that Legal Notice Number 153 of 8th October, 2001 excluded LR 25005 from the 1st Respondent land(sic). b. An order compelling the Respondents to facilitate the Petitioners in so far as ascertaining boundaries over LR 25005 is concerned. c. A joint survey be conducted between the 1st Respondent Petitioners with a ascertaining boundaries and the view of over LR 25005. d. The 3rd Respondent be compelled to provide security and supervise the resettlement of the Petitioners over LR 25005. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 40 of 48

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e. Any other relief the Court may deem just and expedient in the circumstances. f. That the costs of this Petition be borne by the Respondent (sic). 131. From the prayers sought in the Petition it is evident that the dispute in this matter revolves around the alleged excision of LR No. 25005 from forest land, the alleged failure to establish the boundaries of LR No. 25005 and the alleged failure to settle the Petitioners on LR No. 25005. 132. It is my view that the said issues are civil in nature and can be determined without invoking the Constitution. 133. In the judicial decision of Rumasila v Kenya Urban Roads Authority & 2 others (Environment & Land Petition E006 of 2022) [2024] KEELC 4826 (KLR) (20 June 2024) (Judgment) the Court observed as follows; -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 41 of 48

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“The procedural law relating to constitutional matters requires that where there exist ample statutory avenues for resolution of a dispute, the statutory options for redress must be followed and the constitutional Court will decline to entertain the dispute. The basis for that kind of approach is the principle of constitutional principle bars avoidance. the The practice of bringing ordinary disputes to the constitutional Court.” (Emphasis mine) 134. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment) discussed the principle of Constitutional avoidance as follows; “(256) The appellants in this case are seeking to invoke the “principle of avoidance”, also known as -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 42 of 48

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“constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without issue, reaching that is a the constitutional course which should be followed.” (257) Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 43 of 48

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Tennessee Valley Authority, 297 U.S. 288, 347 (1936)). (258) From principle the well foundation developed of in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. therefore, not a falling the jurisdiction to This proper was, question of the Appellate Court.” (Emphasis mine) 135. In KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) the Court held as follows; “36. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 44 of 48

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constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and determination ripeness of the avert the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause.” 136. Essentially, the principle of Constitutional avoidance deals with instances where a Constitutional Court declines to deal with a matter because there exists another remedy provided in law which the aggrieved party is yet to utilize. 137. As stated, some of the issues in dispute are whether LR No. 25005 is public land, whether LR No. 25005 was procedurally excised from Forest Land, whether the purpose of its alleged excision was for the resettlement of the members of the Talai Community, whether the Respondents should be -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 45 of 48

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compelled to establish and/or ascertain the boundaries of LR No. 25005 and whether the Petitioners should be settled on LR No. 25005. 138. This Court, sitting as a Constitutional Court, invokes the doctrine of constitutional avoidance and finds that the issues raised in this petition are such as can be pursued in a Civil Court. C. Whether the Petitioners are entitled to the orders sought in the Petition. 139. Given my finding on issue (B) above, the prayers sought in the Petition cannot be granted. D. Who should bear the costs of the Petition. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 46 of 48

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140. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 141. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. DISPOSITION. 142. In the result, the Petition is hereby struck out with costs to the Respondents. 143. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 11TH DAY OF JUNE, 2026. L. A. OMOLLO JUDGE. -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 47 of 48

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In the presence of: Mr. Sang for the Petitioners. Mr. Ojwang for the Respondents. Court Assistant: Mr. Joseph Makori -----------------------------------------------------------------------------------------------------------------------------------------ELC PETITION NO. E004 OF 2025 [KERICHO] Page 48 of 48

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