Tonui v Kenya Forest Service & 3 others; Law Society of Kenya & Others & 12 others (Interested Parties) (Constitutional Petition 11 of 2020) [2024] KEELC 6320 (KLR)
The bottom line
#Mau forest settlers' land titles are valid, but encroachers on forest land can be lawfully evicted once boundaries are marked on the ground.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Government created settlement schemes in Nessuit, Mariashoni, Sururu, Likia, Terit, and Sigotik, and if so, whether the petitioners in Petition 11 of 2020 were settled in these schemes
- 2.Whether the Government had given notice to alter the forest boundary of the Eastern Mau Forest vide Legal Notice No 889 of January 30, 2001, and if so, whether the process of degazettment of the forest area was completed
- 3.Whether there was a clear delineation of the forest land and the settlement area, and if so, whether the petitioners have encroached onto the forest land
- 4.Whether the petitioners' legitimate expectation that they would be settled on the land they occupy and hold titles to was violated by the Government
- 5.Whether the petitioners are entitled to compensation for any unlawful eviction from their land
- 6.Whether the Ogiek Community's (2nd petitioner's) rights to property were violated by the respondent
- 7.Whether the 2nd petitioner's rights of access to information in regard to the implementation of the Judgment of the African Commission on Human and Peoples Rights were violated by the respondents
- 8.Whether the Multi Agency Task Force established in August/September 2020 had any legal mandate to deal with issues relating to the disputed settlements within the Eastern Mau Forest
Key legal issues
#Validity of the degazettment of 35,301.01 hectares of Eastern Mau Forest
Legal Notice No 142 of October 8, 2001 validly altered the Eastern Mau Forest boundary; the notices were never revoked or quashed and no stay could be indefinite
The Minister gave the 28-day notice of intention under section 4(2) of the repealed Forest Act via Gazette Notice No 889 of January 30, 2001, and Legal Notice No 142 of October 8, 2001 effected the alteration of 35,301.01 hectares. The Attorney General claimed judicial review proceedings stayed implementation but did not furnish the judgment or order; the notice was never quashed, and a stay cannot run indefinitely. Accordingly, the excision was valid and land settled within it was lawfully settled.
Legitimate expectation and validity of titles
Settlers within the excised area had a protected legitimate expectation; titles issued within the excised area are valid and should be respected
The Government promised settlement, established the six schemes, issued the notices of boundary alteration and processed titles from 1997. Under the legitimate expectation principles from the Supreme Court, there was a clear representation by a competent authority which the settlers reasonably acted upon. The Government cannot reverse course without a massive resettlement plan. Persons settled within the excised 35,301.01 hectares were validly settled and their titles valid.
Legality of the Multi Agency Task Force
The Task Force, not gazetted and without publicized terms of reference, lacked legal backing and its activities were a nullity
The Task Force was established in August/September 2020 without gazettement, without published terms of reference, and without involvement of Ogiek community representatives, despite one of its objectives being implementation of the African Court judgment. Lacking any legal framework anchoring its activities, it was unlawful. This engages articles 10, 35 and 47 concerns regarding participation, information and fair administrative action.
Relationship between national courts and regional court decisions
This court is not bound by the African Court's decisions; national courts interpret the Constitution and national laws, with regional jurisprudence persuasive only
Relying on the Supreme Court advisory opinion in Attorney General v Karua on subsidiarity, the court held that interpretation of the Constitution and national laws and weighing of evidence is the mandate of domestic courts, which cannot be surrendered to regional courts. Regional jurisprudence is persuasive. The Ogiek should pursue implementation of the reparations judgment rather than seek enforcement in this petition.
Compensation for evictions
Claim for damages dismissed for want of proof
Although there was evidence some evictions occurred, the court could not ascertain whether they were executed on forest land or settlement land. KFS may lawfully evict persons from forest land upon notice and humanely. No evidence demonstrated unlawful or inhumane evictions, so the compensation claim failed.
Legal principles established
#- A gazette notice altering a forest boundary that has not been quashed or annulled remains valid and completes the degazettment; an order of stay cannot be indefinite
- Settlers allocated land by the Government pursuant to a gazetted forest excision acquire a legitimate expectation, and the Government cannot go back on its promise in violation of their property rights
- A national court is not bound by decisions of regional courts; such jurisprudence is persuasive only
- A Multi-Agency Task Force established without gazettement or publicized terms of reference, and without involving affected indigenous community representatives, is unlawful and a nullity
- KFS may evict encroachers from forest land but only upon notice and in a humane manner
Court orders
#- 1.Declaration that the Government created Nessuit, Mariashoni, Sururu, Likia, Terit and Sigotik Settlement Schemes and allocated individual parcels of land to the petitioners
- 2.Declaration that the Government gave notice to alter the boundary of East Mau Forest vide Legal Gazette Notice No 889 of January 30, 2001 and the boundary was altered vide Legal Gazette Notice No 142 of 8.10.2001, neither of which has been cancelled or revoked
- 3.Order that Legal Notice No 142 of October 8, 2001 be implemented and the Government establish and delineate the forest boundaries within the Settlement Schemes by placing physical and visible beacons on the ground within 12 months
- 4.Direction that the Ministry of Interior and Coordination of National Government and the Ministry of Lands, Housing and Urban Development verify and authenticate the allottees and issue titles to any allottees not yet issued titles
- 5.Order that upon delineation, any person found to have encroached onto forest land to vacate forthwith failing which the Kenya Forest Service may evict forcefully but humanely and in compliance with section 152G of the Land Act, 2012
- 6.Order that owners of land within the Schemes shall not interfere with riparian reserves and shall increase tree cover to a minimum of 30% within 60 months
- 7.Order that the Ministry of Interior, the Kenya Forest Service, NEMA and WARMA oversee implementation of the tree cover obligation under article 69(2) of the Constitution
- 8.Declaration that the Ogiek Community's right of access to information was violated but the reparations judgment of June 23, 2022 renders any orders otiose; the Government should facilitate implementation of that judgment
- 9.Each party to bear their own costs of the consolidated petitions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original constitutional petition jurisdiction under article 22 and 23 of the Constitution (Environment and Land Court)
- Consolidated with
- Petition No 130 of 2017, Petition No E005 of 2020, Petition No E006 of 2020, Petition No E16 of 2020 (ELC No E009 of 2020)
Relief refused
#Compensation/damages for unlawful and forceful evictions
No evidence proved the evictions were unlawfully carried out on settlement land; KFS may lawfully evict encroachers from forest land upon notice and humanely
Prayer for a declaration that respondents violated article 40 by failing to implement the African Court judgment (Ogiek petition)
Overtaken by events by the reparations judgment of June 23, 2022, and this court has no jurisdiction to compel enforcement of the regional court's decision
Petition No E16 of 2020 (Ogiek petition) reliefs
Not proved
Costs
Each party to bear their own costs of the consolidated petitions as the petitions involved public interest
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is ordered that the Legal Notice No 142 of October 8, 2001 be implemented and the Government within a period of 12 months from the date of this Judgment to establish and delineate the forest boundaries within the Settlement Schemes by placing physical and visible beacons on the ground.
That upon the delineation and establishment of the forest boundary any person found to have encroached onto the forest land to vacate forthwith failing which the Kenya Forest Service to be at liberty to evict such people forcefully but any such evictions to be humane and to comply with section 152G of the Land Act, 2012.
The owners of land within the Schemes shall be required to ensure there is no interference with the riparian reserve of any rivers fiowing through their lands and every land owner within the schemes shall be required to increase the tree cover in their parcels of land to a minimum of 30% of the land within a period of 60 months from the date of this Judgment.
Each party to bear their own costs of the consolidated petitions as the petitions involved public interest.
Accordingly, I hold that the Legal Gazette Notice No 142 of October 8, 2001 operated to alter the boundary of the East Mau Forest as expressed in the Gazette Notice.
The Government by seeking to go back on its promise, violated the petitioners legitimate expectation and their property rights.
the jurisdiction of the national court cannot be surrendered to the regional courts but the jurisprudence from such courts can be taken as persuasive authorities.
Issues in the judgment
#Final order 9 mislabels the Ogiek petition as 'Petition No 6 of 2020' when the consolidated Ogiek petition is Petition No E16 of 2020, and contains a stray '}}' typographical artifact
The Access to Information Act is inconsistently cited as 2016 in the pleadings and 2011 in submissions
The lead petitioner's name is inconsistently spelled 'Tanui' and 'Tonui' in the opening paragraphs
Record states highlights of submissions were made on October 9, 2020 although the judgment was delivered in 2024, an apparent date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tonui v Kenya Forest Service & 3 others; Law Society of Kenya & Others & 12 others (Interested Parties) (Constitutional Petition 11 of 2020) [2024] KEELC 6320 (KLR)", Case Analysis (2024). Petition No 11 of 2020 (lead file; consolidating Petition No 130 of 2017, Petition No E005 of 2020, Petition No E006 of 2020 and Petition No E16 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6320/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.