Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others [2018] KEELC 4490 (KLR)
The bottom line
#The Environment and Land Court dismissed clan members' bid for Embobut Forest compensation, holding that compensating illegal forest occupiers is a political question, not a legal one.
What this practically means
#Executive summary
#Key legal issues
#Justiciability of the claims concerning the harmonized registers
The issues raised were non-justiciable political questions, since compensation of illegal forest dwellers is a politically motivated decision
The court held that dwelling in the gazetted Embobut Forest is illegal and any decision to compensate or resettle forest dwellers is politically motivated. Attempting to test the legality of the register would therefore wade into non-justiciable political territory; the genuineness of an illegal forest dweller is itself non-justiciable.
Representative capacity of the petitioners
The petitioners had capacity under Article 22(2)(b) and (c) without a signed authority from clan members
The court distinguished submissions invoking Order 1 Rules 8 and 13 of the Civil Procedure Rules, holding that constitutional petitions under the Mutunga Rules are governed by Article 22, which permits any person to sue on behalf of a group or class, and Article 260's expansive definition of 'person'. The Civil Procedure Rules do not apply to such proceedings.
Alleged violations of Articles 27, 40, 47, 48 and 50(1)
No violation was established; equality and property claims fail because petitioners were not in legal occupation and did not claim ownership
The court found that the equality claim fails because the benefit sought is not a legal benefit flowing from illegal occupation; Article 40 does not arise since the petitioners did not claim land ownership; and the profiling was resolved politically rather than by application of law, so no fair administrative action claim was established.
Whether certiorari should issue to quash the registers
No grounds for certiorari were demonstrated; no jurisdictional excess, procedural impropriety or irrationality was proved, and public participation was evidenced
Certiorari issues where a body acts without or beyond jurisdiction, with procedural impropriety or irrationally. The petitioners did not clearly establish these grounds, did not show denial of hearing, and the respondents demonstrated public participation in preparing the register. The register had also been implemented with over Kshs.1.5 billion paid out.
Legal principles established
#- The harmonization of registers of forest evictees for compensation is a political question, not a legal question, and therefore non-justiciable
- No person should benefit from an illegality; occupation of a gazetted forest being illegal cannot ground compensation
- Under Article 22(2)(b) and (c) of the Constitution, a person may institute proceedings as a member of, or in the interest of, a group or class of persons without a signed representative authority; the Civil Procedure Rules do not apply to proceedings under the Mutunga Rules
Court orders
#- 1.The petition is dismissed
- 2.No order as to costs, each party bearing own costs, given the petitioners prosecuted the petition in public interest
- Jurisdiction invoked
- Articles 22, 23 and 165(3) of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others [2018] KEELC 4490 (KLR)", Case Analysis (2018). not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4490/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.