Tough questions as evictees await verdict

Lawyer Kipkoech Ng’etich with some of the Eastern Mau residents after the hearing of the Eastern Mau case at   Environment and Lands Court in Nakuru on October 9, 2023.[Kipsang Joseph, Standard]

Boundary and legitimacy of titles deeds of eastern Mau forestland are some of the questions a court will have to decide by March. 

After lengthy submissions by lawyers representing the residents and the government, Environment and Lands Court yesterday said the judgment would be issued on notice.

“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 John Mutungi.

During the submissions, the judge sought to understand whether the land in question was indeed part of the forest.

He also sought to know how settlement schemes were determined, their extent, and where the occupants originated from.

The government has maintained that 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 establish how many people are on the suit land, adding that whatever the outcome of the case, it will have a big implication.

Nessuit MCA Samuel Tonui filed the case on behalf of over 45,000 locals in 2020.

In the 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.

The lawyer wants the government to revisit the intended degazettement of January 30, 2001, Legal Notice No 889 published on February 16, 2001, by the Minister for Environment Francis Nyenze.

He also said the court should revisit Legal Notice No. 142 of 2001 by Noah Katana Ngala, issued in August 2001.

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,” he submitted.

The locals asked that should they be found to be living within the forest, they should be given a six-month notice to leave and be compensated and/or re-settled.

Lawyer Steve Biko, representing over 2,043 locals and members of a Lipwob Morop Self-Help Group, 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.

She called on the court to intervene and save the environment, adding that the residents had not established the roots of their title deeds.

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.

She argued that titles issued in 1997, 1999 and 2013 were not a justification for the occupant. 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.

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