A Kakamega court has put to halt a 31-year quest of a group calling itself the 1992 Squatters Sacco which among other things sought ownership of 1,577.86 hectares (3,900 acres) of Turbo/Lugari Forest land.
The judgment delivered, last week, brings to a stop tussle that has seen the squatters feature in the National Assembly, political rallies and even the (Paul) Ndung’u Land Commission seeking a piece of the forest.
Justice Dalmus Ohungo of the Land and Environment Division of the High Court, feared dishing out the land to the 1,500 squatters, which would reverse forestation gains made in the wake of the global climate crisis.
“I note that the petitioners (squatters) contend that to realise their dream, there will have to be de-gazettement of 1577.86 hectares of the Turbo/Lugari Forest Zone for purposes of human settlement. That is no small matter. Dwindling forest cover is a concern for everyone since it has severe effects on climate and biodiversity, among others,” he told the squatters represented by Josamu Wanjala Wasike, Alexander Amukune and Jackson Okumu Namunyu.
“Any de-gazettement would have to maintain fidelity to the relevant statutory provisions, be based on sound science and be guided by principles of sustainable development including the precautionary principle. This court cannot therefore compel the state to de-gazette a portion of the Lugari Forest, as is sought,” he added.
The Sacco moved to court in November 2020 averring that they were squatters in Turbo Forest Reserve comprising Mautuma Central Settlement Scheme in Lugari Sub-County under the tag 1992 Squatters Sacco.
They sued the Attorney General, National Land Commission and the Kenya Forest Service seeking orders compelling them to among others complete the Turbo Forest Reserve-Mautuma Central Settlement Scheme as planned at inception in 1992.
They also wanted the court to order the three respondents to desist from screening them to ascertain whether they were genuine squatters.
“We also seek a conservatory order securing our presence, occupation and utility of Mautuma Central Settlement Scheme set apart for our resettlement and a declaration that the respondent's procrastination in completing the resettlement programme by degazetting the land be set apart,” they said in their pleadings.
They argued that an earlier move by the State to reclaim the parcel was illegal and had infringed and violated their right to a fair administrative action and fair hearing secured by articles 25, 27, 47, 48 and 50 of the Constitution.
Their chairman, Josamu Wanjala Wasike, said they came together in 1992 after being listed as beneficiaries of a resettlement programme ordered by the then President.
He said the resettlement programme was designed and executed in two phases on 3,000 acres and 6,000 acres hived off Lugari Forest which formed part of Turbo Forest Reserve (a gazetted Forest Zone).
“After the presidential directive of 1992, the Provincial Administration, the Ministry of Land, KFS and the Ministry of Environment undertook survey, mapping, and zoning of the designated settlement area which led to the settlement of about 10,000 squatters on 3,000 acres of Forest Land in Phase 1,” said Wasike.
He regretted that the scheme was however not regularised by issuance of title deeds as the forest land had not been degazetted from forest to a settlement area.
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The chairman of the squatters went on to say that the Ministry of Land through the Settlement Department in Kakamega in conjunction with the Conservancy Committee of Western Province and the National Conservancy Board (NCB) undertook approvals for the de-gazettement of the forest land by first approving the request by the settlement office on April 14, 2011, through its minute 7 of April 14, 2011, and thereafter by its letter of January 17, 2012.
“The NCB approved the request by the Western Conservancy to degazette the Lugari Forest Zone for our settlement on the 1577.86 hectares based on a recommendation of the report of the Ndungu Commission on Illegal and Irregular Allocation of Public Land through its minute No. 18/2012,” he said in his court papers.
“The 3,800 acres that constituted Phase One of the resettlement area was meant to benefit us in the ratio of five acres per household, but that was not realised because the process was interfered with by the respondents (AG, NLC and KFS) who allowed strangers to be co-opted in the scheme, leading to some households getting two acres while others got five and more.”
The squatters further argued that based on work done by the Western Conservancy, the NCB and the Director of KFS, the National Environmental Management Authority (NEMA) adopted the Environmental Impact Assessment Report on their resettlement and consequently issued an Environmental Impact Assessment Licence.
He said the report was tabled in Parliament by then Lugari MP (Nabii Nabwera), debated and adopted.
In a rebuttal the AG and KFS produced documents to show that part of Lugari Forest Zone was given out to the landless by a Presidential Decree in 1996 saying “all squatters under the scheme had been settled”.