Migori County Government v Attorney General & 3 others (Environment and Land Petition E001 of 2023) [2026] KEELC 5360 (KLR)

iii. That this honourable Court does specifically order and direct the 3rd Respondent, its Migori County Director of Forest, its Migori County Commandant of Forest Mr. Mohamed Mohamed and Forest Oficer Faith Chepleting be ordered to return immediately the generator keys taken from the premises of Maroa Stores Limited on 30th May 2026, restore normal operations therein and forthwith cease interfering with the operations of the said business; iv. That the costs of the Application be borne by the 3rd Respondent and its said oficers. 2. The Application was premised on the grounds on the face thereof. It was supported by the afidavits of one Mercy Sau Mwakio and Florence Akinyi Odongo, both sworn on 2nd June 2026. The background to the Application was as given hereafter, below. 3. The Petitioner was the registered proprietor of L.R. No. Muhuru Kadem/Macalder/498, Migori County. It stated that the parcel was also referred to in the record as Title No. 17955 Migori. It measured about 2,500 acres. I shall refer to it hereinafter as the suit property. 4. It added that by the Kenya Gazette Legal Notice No. 85 of 2023 the whole of the suit property was declared a forest land. The Petitioner was aggrieved by it. It moved this Court by the instant Petition in 2023. It complained of a breach of Articles 40, 47 and 63 of the Constitution, among others. 5. On 5th October 2023 the trial Judge issued conservatory orders against implementation of the Gazette Notice. The orders stayed the implementation of the Legal Notice No. 85 of 2023 pending the hearing and determination of this Petition. The Court also directed that the Petition be canvassed by written submissions. 6. The parties thereafter negotiated the issues in dispute. The negotiations bore fruit. The 3rd Respondent, by a letter dated 8th October 2025, issued by the Chief Conservator of Forests, confirmed that it was amenable to the terms proposed. The Hon. Attorney General executed the draft consent arising therefore, on 29th October 2025. The consent was recorded on 30th October 2025. 7. By that consent the Petition was settled, as per the annextture MO 2 of the Afidavit of Mercy Sau, on/ along the following terms: 8. a. The Parties, through their respective Surveyors to determine the area of Title No. 17955 Migori that is covered by forest and proceed to have the said title subdivided to demarcate the forested area and give the area its own title in the name of the Kenya Forest Service, the 1st Respondent herein with the rest of the land remaining with the Migori County Government, the Petitioner herein. b. The Parties to agree on who was to bear the costs of the Survey, the subdivision and the registration of the two resultant titles, and the costs of the Petition. Should the parties fail to agree, the Court to determine the same. c. There be at liberty to apply.” The survey was never undertaken to this day. The parties never agreed on who would meet the costs of the survey. The consent therefore remained unimplemented. It was by virtue of that state of afiairs that the Petitioner moved the Court by the Application now before me. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5360/eng@2026-08-12 2

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9. On 3rd June 2026 the Court declined to certify the Application urgent. It directed, instead, that physical service of the application to be efiected by 5th June 2026, responses within ten days of service, and an inter partes hearing thereafter. The hearing proceeded. The Applicant's Case 10. The Applicant’s case was set out in the two Supporting Afidavits both sworn on 2nd June 2026. 11. The first one was the Supporting Afidavit of Mercy Sau Mwakio, the County Executive Committee Member (CECM) for Lands, Housing, Physical Planning and Urban Development. She deponed that the Petitioner had, over the years, developed the suit property and licensed development partners to undertake economic activities on it. One such licensee was Maroa (Marowa) Stores Limited. It held a 2026 trade licence issued by the Petitioner for small mining on about five acres of the unforested part of the suit property. The licence was produced as annexure "MO1". 12. She deponed that the 3rd Respondent’s oficers had, relying on the stayed Gazette Notice, been intimidating, harassing and extorting the Petitioner’s licensees. The Petitioner wrote a letter of complaint dated 21st May 2026 to the Chief Conservator of Forests. It was produced as annexure "MO2". She deponed that despite the letter of complaint the harassment did not stop. 13. She deponed further that on 30th May 2026 oficers of the 3rd Respondent led by one Faith Chepleting invaded the premises of Maroa Stores Limited, assaulted its employees, chased them out and took away the generator keys. Photographs of the injuries were produced as annexure "MO3". Demands for the return of the keys were ignored. Losses followed. The afiected businesses had threatened to stop remitting revenue to the Petitioner. 14. The second was the Supporting Afidavit of Florence Akinyi Odongo, a Director of Marowa Stores Limited. She deponed that the company was licensed by the Petitioner and had invested millions of shillings in a mining operation on about five acres of the unforested part of the suit property. She repeated the account of the events of 30th May 2026. She deponed that raw materials worth millions went to waste as a result. Further, that the shutdown occasioned idle labour and lost revenue. She annexed the trade licence as "FAO 1" and photographs as "FAO 2". She prayed that the keys be returned and the interference stopped pending the agreed survey. Respondents' Case 15. The Respondents opposed the Application by two Replying Afidavits. One was by one Faith Chepleting, the Acting County Commander, Kenya Forest Service, Migori County, which she swore the first on 1st July 2026. She deponed that the suit property was gazetted forest land vide Legal Notice No. 85 of 2023. That the gazettement had not been set aside. She deponed further that in February 2026 oficers on routine patrol found that Maroa Stores Limited had entered upon the suit land, cleared natural vegetation on about three acres and set up a mining site without any licence. The oficers attempted to stop the activity and to arrest those responsible. That they were overpowered and had to retreat. The incident was booked at Macalder Police Station vide OB No. 22/23/02/2026. She deponed that investigations established that no licence had been issued to the company by the 3rd Respondent. 16. She denied the allegations made against her personally. She denied entering the premises of Maroa Stores Limited on 30th May 2026, assaulting anyone, confiscating generator keys or shutting down operations. She deponed that no complaint of assault had ever been lodged with the 3rd Respondent and that no oficer had been summoned over any such allegation. She maintained that she and her colleagues acted lawfully and within their mandate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5360/eng@2026-08-12 3

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17. The second Replying Afidavit was by John Opiyo Mbori, the County Forest Conservator, Migori County. He swore it on 24th June 2026. He deponed that the Application was founded on material non-disclosure and it was an attempt to portray lawful regulatory action as harassment. 18. He deponed that the conservatory orders of 5th October 2023 did not extinguish the statutory mandate of the Kenya Forest Service under the Forest Conservation and Management Act. Commercial operations within forest areas required a Special Use Licence. The operators had none. Upon noting the omission, the oficers engaged them and asked them to regularize it. The operators sought seven days which was granted. They defaulted, then sought a further fourteen days which too was granted but not actualized. 19. He denied that any invasion took place. He deponed that the generator key was voluntarily surrendered during compliance discussions and that it was returned on 9th June 2026, when operations resumed. The release letter of 9th June 2026 was annexed as "JOM-1". He deponed that the operators had since applied for a Special Use Licence by a letter dated 15th June 2026, annexed as "JOM-2", and that the application was under consideration and had been recommended at Station and County level. 20. On the injuries, he deponed that they were alleged to have arisen from a multi-agency security operation conducted in the Macalder area in March 2026, involving several State agencies over a period exceeding fourteen days. He deponed that no medical report, witness statement or independent evidence linked any oficer of the 3rd Respondent to the alleged assault, and that investigations were ongoing under the Directorate of Criminal Investigations. 21. He deponed further that it was in fact the Petitioner that had continued to issue licences over a disputed area before the completion of the agreed survey. He asked that the Application be dismissed with costs as an abuse of the process of the Court. Applicant's Submissions 22. The Applicant filed submissions dated 17th July 2026. Learned Counsel confined the submissions to prayers 2, 3 and 4. 23. On the record, Learned counsel submitted that the Respondents were served on 4th June 2026 and were to respond within ten days. They did not. That on 14th July 2026 they had still neither filed nor served, but informed the Court that Replying Afidavits had been filed and undertook to serve within the hour. The Court deemed the afidavits properly filed if indeed filed, ordered immediate service, and gave the Applicant leave to file a Supplementary Afidavit and submissions within ten days. The Learned Counsel submitted that as at 17th July 2026 nothing had been served. To it, therefore, the Application was unopposed. 24. On the merits, Learned counsel adopted the grounds on the face of the Application and the two Supporting Afidavits. He submitted that the Gazette Notice had been stayed. Further, the Petitioner therefore remained, in law and in fact, the registered owner of the whole of the suit property, including the scattered forested areas. 25. The Learned Counsel relied on Section 2 of the Forest Conservation and Management Act, Chapter 385 Laws of Kenya, which defined a forest as land declared or registered as a forest. He submitted that the declaration having been stayed, the Respondents could not, before the determination of the petition, involve themselves in any activity on the suit land. 26. Counsel further relied on Section 21 of the Act. He submitted that the management of forests on public land falling within a county, vested in the County Government, and that under Section 21(3) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5360/eng@2026-08-12 4

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the 3rd Respondent could only collaborate with or assist the County Government if requested. No such request had been made. He submitted that the Respondents had no business interfering with the Petitioner or its licensees until a portion of the land was ceded and registered as forest. He prayed that the Application be allowed as prayed. 27. The Respondents filed no submissions. Nothing was placed before me on their behalf beyond the two Replying Afidavits. Issue for Determination 28. I have considered the Application, the Afidavits, the annextures, the law and the submissions on record. I have also given due analysis of the record of this Court. 29. It is not in dispute that during the pendency of his Petition, the Parties settled, virtually all the issues between them by the consent recorded on 30th October 2025. They agreed, in principle, to identify and demarcate the part of the suit property that fell under the Forest and that which fell under the ownership of the Petitioner. They agreed to do so through a survey and the subdivision of the suit property. They agreed that the forested portion would be excised and registered in the name of the 3rd Respondent while the remainder would vest in the Petitioner. A decree is already (or to be) issued pursuant to that consent. Thus, the questions on whose ownership, between the Petitioner and the 3rd Respondent one part of the suit property or other is, are closed. The parties left one question open, and they expressly referred it to the Court. Clause 2 of the consent provided that if the parties failed to agree on costs, the Court would determine the same. They have failed to agree. It is alleged that during the pendency of that issue, the 2nd and 3rd Respondents have interfered with the operations of the Petitioner and/ or its licencee, M/S Maroa Stores on the suit property, including seizing some of the latter’s items or machines and keys to the store. This is denied. Thus, the single issue that falls for determination whether an order of injunction should issue against the two respondents from interfering with the Petitioner’s or its licencee’s activities on the suit property and: a. Whether an order of injunction should issue against the two respondents from interfering with the Petitioner’s or its licencee’s activities on the suit property, and b. Who to bear the costs of this application Analysis and Determination 30. I begin the determination of the issues herein in sequence. The first and main one will therefore take precedence. It is worth reminding all at the onset that a consent was recorded by the parties, virtually settling the entire dispute herein as between them. Only the issue of costs in respect of both survey and the Petition remain outstanding. The consent has never been set aside. I therefore must begin by laying plain the understanding of the meaning or import of a consent, and the import of the consent recorded by the parties herein. 31. A consent order is basically a contractual relation between parties, which order the Court adopts. Once adopted, it given the force of an enforceable order or decree, depending on the stage of and the issue it addresses as between parties. Once recorded, it binds the parties accordingly. It can only be interfered with or varied on the grounds upon which a contract may be set aside. These include, fraud, mistake, misrepresentation or the agreement being contrary to public policy. 32. That legal position was settled in Hirani v Kassam (1952) 19 EACA 131. It was afirmed by the Court of Appeal in Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR) and in Kenya https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5360/eng@2026-08-12 5

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Commercial Bank Ltd v Specialised Engineering Company Ltd [1982] KLR 485, where it was held that; “…a consent entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without suficient material facts or in misapprehension or ignorance of such facts in general for reasons which would enable the court to set aside an agreement.” 33. As stated above, none of the parties herein asked the court to set aside the consent. Neither party alleged the existence of fraud, mistake or misrepresentation on the other. Both sides, in fact, invoked the contents of the consent. The Applicant pleaded it and sought orders "pending the survey consented to". The 3rd Respondent complained that licences were being issued "before completion of the agreed survey". The consent therefore stands. It is a decree of this Court. That legal position has consequences for the reliefs sought. 34. The Applicant seeks orders barring he 2nd and 3rd Respondents and their employees from interfering with the applicant’s use and occupation of part of the suit property. Prayer 3 sought the return of the generator keys taken by the employee of the 3rd Respondent on 30th May 2026. The 3rd Respondent deponed, and produced a release letter dated 9th June 2026 in support, that the key was returned and that operations resumed on that date. That deposition was not controverted. The Applicant was granted leave to file a Supplementary Afidavit. None was filed. It means that the fact of the release of the generator and other items has been done. A court does not order the doing of that which has already been done. Prayer 3 has been overtaken by events. 35. Prayer 2 sought orders restraining interference "pending the survey". The parties are sharply divided on what happened on 30th May 2026 and in February and March 2026. One side speaks of an invasion, assault and an extortion. The other speaks of a routine patrol, an unlicensed mining site, a voluntary surrender of a key, and injuries sustained in an unrelated multi-agency operation now under investigation by the Directorate of Criminal Investigations. These are not matters this Court can resolve on afidavit evidence in interlocutory proceedings. They are contested questions of fact. Some of them are the subject of ongoing criminal investigation. I decline to make findings on them but the uncontested facts point to events which this court needs to consider whether or not they found a basis for a conclusion that the prayers sought have been suficiently proved or not. 36. What I say with confidence is this: the mischief complained of by both sides has a single root which is the consent has not been implemented. The forested portion has not been identified. Its boundaries have not been fixed on the ground. Until that is done, the Petitioner will continue to license activity on land the 3rd Respondent regards as forest, and the 3rd Respondent will continue to police land the Petitioner regards as its own. This is the gist of the confiict. Each party will continue to regard the other as a trespasser. The friction on the ground is the direct product of an unimplemented decree. The failure to implement has a basis: the cost of the survey. 37. It is worth noting that both litigants are public bodies. Both expend public funds to run their programs including litigation. An order that one of them pays the other’s costs merely moves public money from one public pocket to another and adds a layer of taxation proceedings to a dispute the parties have already resolved. Second, the survey and subdivision are not a service rendered by one party to the other. They are the joint machinery by which each party acquires its own title. Each party is a beneficiary of that machinery in equal measure. 38. That said, the question that remains is whether the court should issue an injunction against the respondents regarding the activities complained of. I have considered the totality of the circumstances of this case, the interests of justice and the fact that from whole of the petitioner’s case, the suit property https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5360/eng@2026-08-12 6

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initially belonged to the Petitioner, and as shown by annexture M01 there is evidence that the Petitioner had issued a licence to M/S Marowa Stores Limited to carry out activities on the land they considered all along as theirs, and the fact that a consent has been recorded settling this matter, and only the survey of the suit land remains outstanding. The Respondents state that they have not gotten funds to use to survey the land so as to demarcate it for one or other party and thereby determine the boundaries of the forest and the ‘non-forest’ land. 39. It would in my view be unfair and even beats logic for one party, the Respondents, to assume that a boundary extends to where it reaches as alleged. Who fixed the boundary? How did the Respondents determine that the forest land reaches where they have claimed it to be? Or how did they know how far the former Migori County land reaches when the land has not been surveyed? The beacons have not been lain so as to determine the boundaries. The oficers who purported to carry out the determination at not qualified surveyors. 40. This court grants and issues the orders prayed for in this matter. To be clear, this court hereby makes the following orders: 41. a. There is hereby issued an order directed against the 2nd and 3rd Respondents herein, their employees, agents or any person acting through them be directed to immediately stop interfering with the operations and activities of the Petitioner and its authorised licensees on the suit property herein Muhuru Kadem/Macalder/498 Migori County … pending the survey consented to by the parties on 30th October 2025 and recorded herein; b. That this honourable Court does specifically order and direct the 3rd Respondent, its Migori County Director of Forest, its Migori County Commandant of Forest Mr. Mohamed Mohamed and Forest Oficer Faith Chepleting be ordered to return immediately the generator keys taken from the premises of Marowa Stores Limited on 30th May 2026 and forthwith cease interfering with the operations of the said business. c. Thirdly, the it would not be in the interest of justice for the Petitioners proceeds to carry out any activities that are injurious to the state or nature of the suit land on a parcel of land they too or also have not determined that it specifically belongs to them. Therefore, any activities on the suit land by the parties herein should cease until the boundaries of the forest service and that of Migori County is determined. d. Each party to bear their own costs. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 12TH AUGUST 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, Mr. Okeyo Advocate for the Petitioner/Applicant Ms. Opiyo for the Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5360/eng@2026-08-12 7

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Court Assistant: Arthur https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5360/eng@2026-08-12 8

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