Over 18, 000 survive eviction as court declares forest gazettement illegal

Elders of the Endorois community and officials from the Endorois Welfare Council point to a vast land in Arabal Location. [Kipsang Joseph, Standard]

The Environment and Land Court has stopped the government from evicting members of the Endorois community from their ancestral land in Baringo County.

The court ruled that the process used to declare the area a forest was illegal and unconstitutional.

The decision has saved over 18,000 people from eviction from the over 33,000-acre land.

In a judgment delivered on Tuesday, Justice Millicent Odeny said the gazettement of Arabal Location as a forest ignored objections raised by the National Land Commission (NLC), the Baringo County government, and local leaders, including seven Members of Parliament.

The judge noted that despite these objections, the Ministry of Environment went ahead and gazetted the land without following the law.

“This shows that the gazettement did not adhere to the laid-down procedures of due process and constitutional and statutory imperatives. This was impunity at play,” ruled the court.

The court declared that Arabal Location is community land under the Constitution and is held in trust by the County Government of Baringo.

Justice Odeny further ruled that consultation with the National Land Commission was mandatory before Mukutani Forest, which forms part of Arabal Location, could be declared a public forest under the Forest Conservation and Management Act.

As a result, the court nullified Gazette Notice No. 1470 of March 3, 2016, which had declared the area a forest, and issued a permanent injunction restraining the government and its agencies from evicting or interfering with the Endorois community’s use and occupation of the land.

The court also directed that any decisions concerning the Arabal Location can only be made after consultation and with the participation of the Endorois community, in line with the Constitution.

Justice Odeny criticised the alleged public participation process relied on by the government, noting that the minutes produced showed meetings attended only by selected leaders.

“No notices were showing how people were invited to the meetings, or whether adequate notice was given. These records are important for transparency,” she said.

She added that even the leaders who were allegedly consulted had objected to the gazettement, yet their objections were ignored.

The judge referred to a petition filed in the National Assembly by Baringo residents, in which Parliament’s Public Petitions Committee found that there was insufficient public participation and a lack of consultation with the National Land Commission and affected communities.

“Having found that there was a lack of public participation before 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,” ruled the court.

The case was filed by the Endorois Welfare Council against the Cabinet Secretary for Environment, Kenya Forest Service (KFS), the County Government of Baringo, the National Land Commission and the Attorney General.

Through lawyer Benard Akang’o, the council said the Endorois community is indigenous to Arabal Location in Mukutani Ward, Baringo South Constituency, and that the 2016 gazette notice covered about 13,195 hectares known as Mukutani Hills and Lemaitai Hills blocks.

The community argued that the land was converted into forest land without public participation, due process and in violation of their constitutional rights.

Richard Kamngóror, who is the CEO of the Council, said the Endorois have lived on and used the land for generations for grazing, settlement, cultural practices and other livelihood activities.

According to court records, the government began adjudicating the land in 1997 and had demarcated about 105 farms before the process was disrupted by insecurity.

The petitioners claimed that in 2014, members of the neighbouring Ilchamus community initiated a request to have the land gazetted as forest, but the Endorois and other affected residents were never consulted.

In October 2015, more than 500 residents wrote to the National Land Commission objecting to the proposal, citing lack of consultation, the existence of schools, churches, boreholes, and private property, and the fact that some of the land had already been adjudicated.

The Baringo County government also wrote to the then Environment Cabinet Secretary, objecting to the move, but the gazette notice was still issued in March 2016.

The Endorois Welfare Council said the gazettement was discriminatory and violated the Constitution and the Community Land Act.

In response, Kenya Forest Service told the court that the move was community-driven and aimed at protecting a water catchment area. KFS said elders had approached its officers in 2013 seeking advice on conservation and that surveys were later carried out.

However, the court found the government’s evidence contradictory and ruled that the process failed to meet constitutional and legal standards.