Questions as to where the boundary, the legitimacy of titles, and occupants of Eastern Mau will go should the court order for eviction now disturb the minds of many, including the court.
Today, Environment and Lands Court Judge John Mutungi said the judgment would be issued on notice, after a lengthy submission by lawyers representing the residents and the government.
“I think I will not give a definite date for the judgment. There are lots of issues canvassed. I will give a notice. Expect a judgment around February or early March 2024,” said Justice Mutungi.
The judge, during the submissions, sought to understand whether the deeds in the hands of the residents were in the forest.
He also sought to know how settlement schemes were determined, their extent, and where the occupants originated from, in case the area was a forest.
He also sought to understand whether there are people in the other parts of the forest, adding that from the judgment of the African Court, it appeared there are other people who are free to move in all the forests.
The government has maintained the titles in the hands of the occupants were fraudulently acquired.
“This mwananchi who was given what you are describing as fraudulent title, is there on this land what happens tomorrow if I declare he is there illegally and should go away? Where does he go?” asked Justice Mutungi.
The judge noted that he was not able to say how many people are on the Suitland, adding that whatever outcome of the case would have a huge implication.
Nessuit MCA Samuel Tonui filed the case on behalf of over 45, 000 locals in 2020.
In this case, the residents, through Lawyer Kipkoech Ng’etich, want to stop the government from evicting them.
Ng’etich represents the residents of Nessuit, Marioshoni, Sururu, Lilia, Terit and Sigotik settlement schemes forming part of the Eastern Mau.
In his submissions, the lawyer wants the government to revisit the intended degazetment of January 30, 2001, Legal Notice No 889 published on February 16, 2001, by the late Francis Nyenze, then Minister for Environment.
He also said the court should revisit Legal Notice No. 142 of 2001 by Noah Katana Ngala, issued in August 2001.
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The lawyer noted that his client produced a registry index map in court signed by the Chief Conservator of Forest, adding that the gazette and legal notices have not been revoked for over 20 years.
He questioned whether the boundaries might have been shifting with the change in presidency.
“My clients are asking, where is the boundary? Every president who has served appears to have a boundary. Which is the boundary? Is it possible to have four cut lines? My client is inviting the court to provide boundary so that this issue is settled once and for all,” Kipkoech said.
He said the court has sufficient ammunition to deal with the issue, determine the boundary, and order the fencing of the forest.
Kipkoech said his clients want everybody found in the forest issued with a six-month notice to leave and be compensated and or re-settled.
The government, he said, should cease the inhuman activities meted on his clients.
Lawyer Steve Biko, representing over 2,043 locals and members of a Lipwob Morop Self-Help group who lay claim to the land in Eastern Mau, said the government cannot live in a vacuum where it is the only occupant.
“Kindly correct this once and for all and compensate our clients,” Biko said.
State Counsel Fronicah Shirika said the occupants are not the original inhabitants of the Mau and had parcels of land elsewhere. She noted that they are not the Ogiek covered by the decisions of the African Court on Human and People’s Rights.
Shirika added that the larger people cannot suffer the consequences of climate change at the expense of a small group.
She called on the court to intervene and save the environment, adding that the residents had not established the roots of their title deeds.
She noted that the Mau forest is a source of various rivers that feed into various lakes in the country. Lake Victoria which is largely shared by Eastern African countries, she said is being fed by rivers originating from the Mau Forest Complex.
“The case before you today is a dispute between the environment and humans. Every person in this nation and by virtue of conventions of environment every person in the world has a right to a clean environment,” stated Shirika.
By filing the case, she said the occupants of the Eastern Mau, were asking the court to allow them to destroy the environment to the detriment of future generations.
She noted that government officials have been faulted for not protecting the environment and added that in the case of Mau, the government is proactive.
She informed the court that titles issued in 1997, 199, and 2013 were not a justification for the occupant to own the property. The right to own property, she said, is not absolute.
“Even if the said parcel had been degazetted, it will remain government land until when procedures have been followed and occasions have been met," she said, adding that the court should not order for compensation.
The Mau Ogiek, through lawyer Emily Kinama, said they have every right to own the land.
Lawyer Kinama noted that there was no proper Environmental Impact Assessment report before any decision was made. She added that the Ogiek are not to blame for environmental degradation.