Automated Summary
Key Facts
The Endorois Welfare Council petitioned the Environment and Land Court to challenge the gazettement of approximately 13,195.8 hectares of community land in Arabal Location as Mukutani Forest on 11th March 2016. The court confirmed the land is community land under Article 63 of the Constitution, held in trust by the County Government of Baringo. The gazettement process failed to follow due procedures in the Community Land Act and Forest Conservation and Management Act, including inadequate consultation with the National Land Commission, lack of public participation, and ignoring objections from the Endorois community, Baringo County leadership, and seven Members of Parliament. The court declared the gazettement unconstitutional and unlawful, ordering its quash and a permanent injunction against interference with the community's land rights.
Issues
- Whether there was public participation as required in law in the conversion and gazettement of community land as forest land, including compliance with constitutional principles of public participation (Articles 10(2)a and 69(1)(d) of the Constitution).
- Who should bear the costs of the petition, given the court's determination of the respondents' failure to comply with legal requirements.
- Whether the land measuring approximately 13,195.8 hectares delineated on Survey plan No. 17Sl437 and gazetted as Mukutani Forest on 11th March 2016 was community land, as defined under Article 63 of the Constitution and the Community Land Act.
- 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, and whether this requirement was met.
- 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 as required by the Community Land Act and Forest Conservation and Management Act.
- Whether the petitioner is entitled to the reliefs sought, including declarations of unconstitutionality, quashing of the gazette notice, and a permanent injunction to prevent displacement.
Holdings
- The court determined that the land measuring approximately 13,195.8 hectares delineated on Survey Plan No. 1751437 and gazetted as Mukutani Forest on 11th March 2016 is community land under Article 63 of the Constitution. The Petitioner and Respondents admitted this fact.
- The costs of the petition were awarded to the Petitioner. The court found the Respondents' actions to be in disregard of legal requirements, justifying the cost allocation.
- The Petitioner is entitled to the reliefs sought, including declarations affirming the unconstitutionality of the gazettement and an order to quash Gazette Notice No. 1470 of 3rd March 2016. The court also issued a permanent injunction against displacement of the Endorois community.
- The gazettement process lacked meaningful public participation. The court emphasized that public participation must be real and not illusory, and the failure to engage the Endorois community and other stakeholders rendered the process invalid.
- The conversion and gazettement of the 13,195.8 hectares of community land as forest land did not follow due process. The court found that the National Land Commission was not adequately consulted, and the process was flawed, contravening constitutional and statutory requirements.
- Consultation with the National Land Commission was mandatory before gazettement of Mukutani Forest as a public forest under Section 31(2) of the Forest Conservation and Management Act. The court declared this consultation requirement unmet.
Remedies
- 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.
- Costs of the Petition to the Petitioner.
- A declaration that the gazettment of Arabal Location as a forest under Gazette Notice No. 1470 of 3rd March 2016 was unconstitutional, unlawful, null and void ab initio.
- 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.
- An Order of Certiorari is hereby made to quash Gazette Notice No. 1470 of 3rd March 2016, which purported to establish Arabal Location as a forest.
- 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.
- 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.
Legal Principles
- The court applied judicial review principles to determine that the gazettement of Arabal Location as a forest violated constitutional and statutory requirements. The judgment emphasized that actions by public officials must comply with legal procedures, and failure to do so renders such actions ultra vires and void ab initio. The court reviewed whether the respondents adhered to due process, including consultation obligations under the Community Land Act and Forest Conservation and Management Act.
- The court emphasized the constitutional requirement of meaningful public participation under Article 10(2)(a) and Article 69(1)(d) of the Constitution. It held that public participation must be real, not illusory, and that the absence of proper notice, consultation, and inclusion of affected communities (Endorois) rendered the gazettement process invalid. The judgment also cited the National Land Commission's statutory role in land conversion processes.
Precedent Name
- Khelef Khalifa & 2 others v Independent Electoral and Boundaries Commission & another [2017] eKLR
- British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR)
- National Land Commission v Afrison Export Import Limited & 10 others [2019] KEELC 4569 (KLR)
- Patrick Musimba v National Land Commission & 4 others [2016] KEHC 5956 (KLR)
- 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)
- Dina Management Ltd vs County Government of Mombasa & Another [2023] KESC 30 (KLR)
- 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)
Cited Statute
- Constitution of Kenya, 2010
- Community Land Act No. 27 of 2016
- Forest Conservation and Management Act 2016
- National Land Commission Act
- Land Act, Cap. 280
Judge Name
Mao Odeny
Passage Text
- 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.
- 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.
- 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.