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ELCDismissednot stated in the extract provided· [2018] KEELC 4490 (KLR)

Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others [2018] KEELC 4490 (KLR)

Environment and Land Court of Kenya
9 February 2018
4,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Three petitioners, suing as members of or on behalf of the Kasukut/Kasugut clan (alleging at least 364 persons), petitioned the Environment and Land Court at Eldoret claiming they were genuine Embobut Forest evictees and internally displaced persons wrongfully omitted from the respondents' harmonized registers of Embobut Forest evictees compiled for compensation and resettlement. They alleged the registers were riddled with errors, that the compilation process was unrepresentative and discriminatory, and that they were denied a hearing, contravening Articles 19, 27, 40, 47, 48 and 50(1) of the Constitution. They sought certiorari to quash the registers and a declaration that they were genuine evictees entitled to compensation and resettlement. The respondents, through the County Commissioner, maintained that the process was consultative and participatory, that the petitioners were never genuine forest dwellers, and that the registers had been fully implemented with over Kshs.1.5 billion disbursed. The interested party, Kenya Forest Service, contended the petition was non-justiciable, that residing in a gazetted forest is illegal and confers no legitimate expectation, and that the payments were ex gratia. The court held that the harmonization of the registers was a political question, not a legal one, and thus non-justiciable; that the petitioners had proper representative standing under Article 22(2) despite lacking a signed authority; that no constitutional violation was proved; and that no ground for certiorari was made out. The petition was dismissed with no order as to costs, the petitioners having litigated in public interest.

Key legal issues

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01

Justiciability of the claims concerning the harmonized registers

Holding

The issues raised were non-justiciable political questions, since compensation of illegal forest dwellers is a politically motivated decision

Reasoning

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.

p. 5
02

Representative capacity of the petitioners

Holding

The petitioners had capacity under Article 22(2)(b) and (c) without a signed authority from clan members

Reasoning

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.

p. 6
03

Alleged violations of Articles 27, 40, 47, 48 and 50(1)

Holding

No violation was established; equality and property claims fail because petitioners were not in legal occupation and did not claim ownership

Reasoning

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.

p. 6
04

Whether certiorari should issue to quash the registers

Holding

No grounds for certiorari were demonstrated; no jurisdictional excess, procedural impropriety or irrationality was proved, and public participation was evidenced

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.