THE HIGH COURT OF KENYA AT NAIROBI
NO 238 OF 1999 (OS)
VALLEY PROVINCIAL FOREST OFFICER
this suit instituted by way of an originating summons (which
plaintiffs called an "originating
Motion" which all the parties had no doubt was meant to refer
to the "originating summons"),
the 5,000 members of the Ogiek ethnic community, ten of whom are
as plaintiffs representing themselves and the rest of the others
who consented to be so represented in this suit,
have moved this court (after
leave of the court for that purpose) to make two declarations and
two orders, that is to say:
a declaration that their eviction from Tinet Forest by the
Government (acting by the provincial administration) contravenes
their rights to the protection of the law, not to be discriminated
against, and to reside in any part of Kenya;
a declaration that their right to life has been Kenya;
by the forcible eviction from
the Tinet Forest;
an order that the Government herein represented by the
the plaintiffs; and
an order that the defendants pay the costs of this suit.
plaintiffs seek these declarations and orders on the basis of
their pleaded averments that they
have been living in Tinet
Forest since immemorial (counting the time their community began
living in the
area) and yet after virtually daily harassments by the defendants,
the plaintiffs are now ordered
to vacate the forest which has been the home of their ancestors
before the birth of this Nation,
and which is still the home of the plaintiffs as the descendants
and members of that community,
even after their ancestral land was declared a forest as far back
as the early colonial rule and has since remained a declared
forest area to this day. They
complain that the eviction is coming
after the Government had finally accepted to have their community
settled in Tinet Forest and
a number of other places like Marioshoni, Tieret and Ndoinet,
among others. They say this Government acceptance was in 1991; and
between 1991 and 1998 the community settled in the area
in question, with the full co-operation of the Government which
issued letters of allotment of
specific pieces of land to the individual members of the community
each of whom was shown the
precise plots on the ground, whereupon the community has embarked
on massive developmental
activities, building many primary schools and trading centres,
carrying out modern crop
farming and animal husbandry and other economic management, and
the construction of
permanent and semi-permanent residential houses.
the plaintiffs say that when in May last year (1999) The
Government through the District
Commissioner, issued a fourteen days' ultimatum, followed a few
days later with a re-iteration of the threat to the community to
vacate or risk a forceful eviction from the forest and their
ancestral land, they considered the ultimatum and threat a
violation of their aforesaid rights and that it was so real and
eminent that the eviction must be stopped, to avoid irremediable
the plaintiffs and their children and the community generally.
They say that tension in Tinet
Forest, following the threat is so high that unless the Government
stops making good its threat there may be a breakdown in law and
order in what the plaintiffs call "a clash".
They say that
their constitutional rights guaranteed under sections 71, and 82
of the Constitution of Kenya, are
at stake. They say
that is the reason they are before us, seeking the declarations to
which we have
already adumbrated: that
is to say, that Tinet Forest, admittedly one of the country’s
gazetted forests is their ancestral home where they derive their
livelihood where they gather food and hunt and farm, and they are
not going to go away; they do not know any other home except this
forest: they would be landless if evicted.
was said on their behalf, that the applicants depend, for their
livelihood, on this forest, they being food gatherers, hunters,
peasant framers, bee keepers, and their culture is associated with
this forest where they have their residential houses.
It was said that their culture is basically one coneerned
with the preservation of nature so as to sustain their livelihood.
Because of their attachment to the forest, it is said, the
members of this community have been a source of the preservation
of the natural environment; they have never been a threat to the
natural environment, and they can never interfere with it, except
in so far as it is necessary to build schools, provincial
Government administrative centres, trading centers, and houses of
worship (to wit, the Roman Catholic Church buildings).
four respondents, on behalf of the Government, answered the
applicants by stating that the applicants have not disclosed the
truth of the matter concerning this case; and, according to the
respondents, the truth of the matter is that these applicants and
the 5000 persons they represent, are not the genuine members of
the Igiek community, and they have not been living in Tinet Forest
since time immemorial; for, the genuine members of the Ogiek
community were settled by the Government at Sururu, Likia and
respondents said that in the period between 1991 and 1998 the
Government, intending to degazette a part of Tinet Forest to
settle there landless Kenyans, proceeded and issued some
allocation of land documents certifying that the individuals named
in each card and identified therein, had been allocated the plot
of land whose number was stated in the respective cards, copies of
which were exhibited before us in court.
According to the respondents those documents were not
letters of land allotment but a mere promise by the Government to
allocate those people with land if it became available; but,
nevertheless, the applicants were not amongst the people who were
issued with those cards anyway.
respondents say that the government later realized that the part
of Tinet Forest which was intended to be degazetted for settling
“the applicants” was a water catchment area, and the
Government shelved the settlement plan; and when the Government
discovered that the applicants had entered Tinet Forest unlawfully,
it, through the chief conservator of forest, gave the applicants a
notice to vacate the forest with immediate effect.
The district commissioner for Nakuru District under which
the Tinet Forest falls says that he gave notice to the applicants
to vacate the area because the applicants had entered and settled
there unlawfully. He has never harassed the applicants, but instead he has
advised them to vacate the Government gazetted forest peacefully.
The legal advice the district commissioner has received and
verity believes to be correct is that "those rights and
freedoms enshrined in the Constitution are subject to limitations designed
that their enjoyment by any individual does not prejudice the
rights and freedoms of others or the public interest."
the position taken by the applicants that they are completely
landless, the respondents say that that is not the true position,
and that archival administrative records availed from our National
Archives show the contrary and that the colonial Government
resettled the applicants elsewhere, along with other WaDorobo
people. But after the
said resettlement elsewhere, some people entered the Forest of
Tinet, with an intention to dwell there without any licence given
by the forests authority on behalf of the Government.
The unauthorized occupation of the forest has been followed
by numerous evictions since the date of the gazettement of the
forest as such. The
Government's 1991-1998 plan to settle all landless persons (including
some Ogiek people) was purely on humanitarian considerations, but
the programme did not materialise when it was later found that to
go ahead with it would necessarily result in environmental
degradation which would adversely affect the role of the forest as
a natural forest reserve and a water catchment area, with dire
consequences for rivers springing from there which, presumably
sustain human life, the fauna and the flora there and downstream
and their environs. So
the plan was shelved, at least for the time being.
the claim of the applicants that the eviction was selectively
discriminatory against them atone, the respondents answered by
denying any discrimination and staled that all persons who have
invaded the forest are the subject of the eviction.
Regarding the applicants' averments that the eviction would
deprive them of their right to livelihood, the respondents say
that this allegation is not true, because the applicants have not
been dependent on forest produce alone, because, they also keep
applicants' statements that there are massive developments in the
area are denied by the respondents who add that livings like
building schools and churches could 1191 be done without the
express authorisation of the commissioner of lands as the
custodian of Government Land [This aspect suggests that there was
no such express or any authorisation].
respondents say that the forest in question is still intact, and
no sub-division and allocation of any piece-of land thereto anyone
has been approved or effected.
local Catholic Diocese of Nakuru came into this litigation on the
side of the applicants, expressing its interest in the matter for
three reasons, namely, first, that the Diocese has built churches
and schools in the disputed area and is, therefore, a stakeholder
on any issue touching on that land; secondly, that in the event of
an eviction of the applicants taking place as it is threatened,
such action is likely to impenge on the operations of the Church
in the area, because the persons adversely affected by the
eviction are likely to seek assistance (both material and
spiritual) from the Church, and the Church is likely to incur
tremendous amounts of monetary expenditure trying to look for
alternative accommodation for displaced persons; and thirdly, that
the Diocese is interested in the outcome of this case, and that is
why it has stood by the applicants in these proceedings.
No affidavit was filed on behalf of the Diocese, but it
adopted everything filed by and for the applicants in seeking
declarations and orders which we specified at the beginning of our
judgment herein. The
Diocese adopted the factual exposition laid out for the applicants.
the historical records furnished to the court in these proceedings
it is plain that by the time of the second phase of the colonial
evolution and organisation of racial segregation by the creation
of African ethnic land reserves through legal regimes enacted in
the early 1930's particularly following the Land Commission (commonly
referred as the Carter Commission), Cmd 4556, 1934, which had
actually started its work as early as 1930 there were found in an
area including Tinet Forest, peoples whose changing nomenclature
and profusion of alternate names of the sources of confusion, just
as the simplistic and indiscriminate groupings and the misleading
lumping together of those diverse peoples is not helpful in
distinguishing and identifying which persons are being referred
to. But in these
proceedings it was agreed that the people found the area in
question in the 1930's were Ndorobo or Dorobo or Wandorobo, being
variant terms of the Maasai term Torobo, meaning poor folk, on
account of having no cattle and reduced to eating the meat of wild
animals (caters of the meat of wild animals), and were, in their
primary economic pursuit, hunters and gatherers limiting game and
collecting honey. They
commonly inhabited highland forests in the past; but with the
intrusion of the white settlers they were dispersed to the plains,
although they preferred their accustomed elevations, with forests
as their natural environment where they found safety, familiarity
and food. They left
their refuge of foliage
with the greatest reluctance, thanks to their honey complex.
the Dorobo is a group called Okiek, or Ogiek, living in close
proximity to Kalenjin-speaking
peoples, such as the Nandi and the Kipsigis, and they speak a
and bear many overt cultural characteristics of their said
neighbours. Traditionally they were
highland hunter-gatherers inhabiting the southerly highland areas
and the fringes of the tower forests. But as Andrew Fedders and Cynthia Salvadori in their
useful study, Peoples,
tell us, to-day's Ogiek "is not the sum of an age-old
past”, and to uninitiated eyes they disguise their elemental
hunter-gatherer cultural characteristics and, indeed, as those
learned authors write about these people (at p 15), these people
to-day attempt to herd or cultivate so that hunting has become a
secondary economic pursuit
for them; and although the social value of honey is incalculable,
it "has never constituted more
than one-fifth of their diet", and is only a pre-eminent
element in ritual and social communication
through exchange. It is said that their attachment to place is
proverbial, yet they have always been mobile and normadic within
the general bounds of their hunting and gathering grounds.
Their rights "specifically involve qic
collection of honey and extend to hunting and gathering"
wild vegetables, roots and berries.
matter sharply illustrates the clear change from the traditional
cultural way of life to a-very different modem lifestyle of a
present-day Ogiek. Studies show an Ogiek of yesterday as one
characterised by a simplicity of material culture.
Home is a dome-shaped hut constructed from
a frame of slicks, twigs and branches and thatched with leaves or
grass; a semi-permanent shelter, easily abandoned, and no burden
when people move. These traditional shelters contrast sharply
with the modem houses of corrugated iron-sheet roofs and glass
windows, whose photographs
this court was shown by the applicants. The schools and churches
the applicants have built;
the market centres developed,
and agricultural activities engaged in, are all evidence of a fundamentally
changed people. It
boils down to one thing. It
belies the notion that these people sustain
their livelihood by hunting and gathering as the main or only way
cannot be said to be engaging in cultural and economic activities
which depend on ensuring the continuous presence of forests.
White the Ogiek of yester-years shaped his life on the
basis of thick forests or at least landscapes with adequate trees
and other vegetation, one of to-day
may have to clear al least a part of the forest to make room for a
market centre. White
yesterday's Ogiek lived in
loosely organised societies lacking centralised authority,
resulting in a social
fluidity which enabled him to respond to the slightest changes in
his environment with an essential
sensitivity and speed on which his very life may depend, an Ogiek
of to-day, we are told by the
applicants in their sworn affidavit, lives under a chief who was
until recently, his own son. White Ogieks of perhaps the
yonder past were bound by honey, those of today, as we have seen
from the applicants' affidavits, are bound by the spirit of the
whilst in his undiluted traditional culture the Ogiek knew their
environment best and exploited
it in the most conservational manner, they have embraced modernity
which does not necessarily
conserve their environment. As we have just said, they cannot
build a school or a church house or develop a
market centre, without cutting down a tree or clear a shrub and
natural flowers on
which bees depend, and on which bee-hives can be lodged, from
which honey can be collected and from which fruits and
berries can be gathered. The
bush in which wild game can be hunted is inconsistent with the
farming (even though the applicants call it peasant farming) they
tell us they are now engaged
in. Their own relatively permanent homesteads cannot also be home
of wild game which the applicants want us to believe to be one of their
mainstay. As the applicants
pit-latrines or construct other sewage systems for schools, market
places, residences, etc, as of necessity
they must have, they obviously provide sources of actual or
potential terrestrial pollutants.
therefore, for the applicants to tell the court as they did that
they lead a life which is
environmentally conservational, is to be speaking of a people of a
by-gone era, and not of the present. Professor William Robert
Ochieng' in his study of the histories, development and
transformation of certain societies of the Rift Valley, groups the
Ogiek people amongst communities whose character as predominantly
hunter-gathers who practised very minimal agriculture subsisted only up "until the middle of the eighteenth
century", and that is when they "did not have
cattle" and lived by hunting; but from "the middle of
the seventh century" their economy had begun to change:
William Robert Ochieng, An Outline
History of the Rift Valley of Kenya Upto AD 1900,
(1975, reprinted 1982), at p 10.
is on record and agreed in these proceedings, that the colonial
authorities declared the disputed area to be a forest area and
moved people out of it and translocated them in certain designated areas; and the area has remained gazetted as a forest area to
this day, under the Forests Act (cap 385). One of the effects of declaring the area to be a forest area
was that it was also declared
to be a nature reserve for the purpose of preserving the natural
amenities thereof and the flora
and fauna therein. In such a nature reserve, no cutting, grazing,
removal of forest produce
or disturbance of the
flora shall be allowed, except with the permission of the director
of forestry, and permission shall only be given with the
object of conservation of the natural flora and amenities
the reserve. Hunting,
fishing and the disturbance of the fauna shall be prohibited
except in so far as may be permitted by
the director of forestry in consultation with the chief game
warden, and permission shall only be given in cases where the
director of forestry in consultation with the chief game warden
consider it necessary or desirable to lake or kill any species.
The director of forestry or any person authorized by him in
that behalf may issue licences for all or any of the enumerated
purposes, upon such conditions
as may be approved by the director of forestry or upon such
conditions and subject to payment of such fees or royalties as may
be prescribed; but no licence shall be issued for any purpose in respect
of which a licence is required under the Wildlife (Conservation
and Management) Act (cap 376) or under the Fisheries
Act (cap 378).
activities in The forest, which require the aforesaid licence, and
are otherwise prohibited unless an actor has a licence to
do so, include felling, culling, burning, Injuring or removing any
forest produce, which includes back, beeswax, canes, charcoal,
creepers, earth, fibres, firewood, fruit, galls, grass, gum, honey,
leaves, limestone, litter, moss, murrain, peat, plants,
reeds'; resin, rushes, rubber, sap, seeds, spices, stone, timber,
trees, wax, withies and such other things as the minister
may, by notice in The Gazette declare to be forest produce.
Another prohibition, unless done with a licence, is to be
or remain in a forest area between the hours of 9 p.m.
and 6 am, unless one is using a recognized road or footpath
is in occupation of a building authorized by the director of
of The various prohibitions which are relevant to the present
case, are that as a rule, no person shall, except under The
licence of (the director of forestry, in a forest area, erect any
building or cattle enclosure; or depasture cattle, or allow
any cattle to be therein; or clear, cultivate or break up land for
cultivation or for any other purpose; or capture or kill
any animal, set or be in possession of any trap, snare, gin or net,
or dig any pit, for the purpose of catching any animal,
or use or be in possession of any poison or poisoned weapon; but
capturing or killing an animal in accordance with
the conditions of a valid licence or permit issued under The
Wildlife (Conservation and Management) Act is allowed.
No one is allowed to collect any honey or beeswax, or to
hang on any tree or elsewhere any honey barrel or other
receptacle for the purpose of collecting any honey or beeswax, or
to enter for the purpose of collecting these things or
any of them to be in the forest with any equipment designed for
the purpose of collecting honey or beeswax.
9 to 13 of The Forests A-'l set out certain statutory measures to
be taken to enforce the prohibitory provisions of
the Act. Nothing in The Act suggests that those measures are
comprehensive and exhaustively exclusive.
of a criminal nature following a successful criminal prosecution
under the Act are also prescribed.
Again nothing in the Act suggests that those are the only
penal or remedial sanctions under the law to be exacted.
In The Act there
are also provisions for the forests authorities to have recourse
to extra-curial self-help actions to deal with the law transgressors.
As we had the misfortune of the learned advocates for all
the parties not addressing us satisfactorily on this
important legislation and its import, we had no advantage of
benefiting from their expressed respective positions on the
Act, and we only raise it because it is in our minds as we
consider the presence of the applicants and other persons in the
forest area in question. It
is one of the laws relevant to the subject; nobody has challenged
its prohibfli6i1s«and its permit and licensing requirements; and
he who has not shown that he has complied with that law or any
other law applicable,
for him to be in the forest area and to exploit and enjoy its
natural endowments should surely not be heard to seek
the help of the law to protect him from positive action taken to
help him desist from acting in disregard of the law of the land.
was conceded by Mr. Mirungi Kariuki for the interested partly, and
by extension, by Mr. Sergon for the applicants, that the
applicants and/or their forefathers were repeatedly evicted from
this area but they kept on returning to this forest area. They were removed to an area known as Chepalungu, and after
each eviction there had been a tendency for individuals
to seep back into the Tinet and adjoining forest area, where Jack
of supervision caused a further build-up of settlement
until measures once again had to be taken to sort them out.
Records stale (at document 30AAA in the bundle of
exhibits in court) that since 1941 until roughly early in 1952 the
Tinet Forest area had been largely uninhabited.
forest department encouraged the settlement of a limited, number
of families to took after the interests of the department
on a part-time basis. This resulted in a build-up of settlement, and the matter led
to strained relations between various colonial government
departments. By 1956
only a mere seven persons appear to be in Tinet, but as forest
Mirugi Kariuki said that what the repealed evictions and
repeated seeping back show as is a continuing struggle of a
people: a resistance of The people all along: evicted people
always coming back, and being pushed out again, and people
returning. From all
these things the court finds that if the applicants' children, or
if they themselves or some of them,
are living in Tinet Forest, they are forcefully there: they are in
that forest and doing what they nay they are doing in that
forest, as a part of their continuing struggle and resistance. They are not there after compliance with the requirements of
the Forests Act. They
have not bothered to seek any licence to be there.
Theirs is simply to seep back into
the forest after every eviction, and after trickling back they
build-up in numbers and increase Their socio-economic activities
to a point they are noticed and evicted again.
people do not think much of a law which will stand between them
and the Tinet Forest. In
particular, of the forests
Act they say through Mr. Mirugi Kariuki, That it found them there
in 1942 when it was enacted, and it never adversely
affected them. But
the recorded evictions they acknowledge and their admitted
repeated coming back, followed
by other evictions contradict them on this.
That in why even in their affidavit in support they
complain of a continuous
harassment by the provincial administration.
centre piece of The arguments in support of the applicants' case
was that to evict The applicant from this particular forest
would be unconstitutional because (a) it would defeat a people's
tights to their indigenous home, and deprive them of
their right to life or livelihood (as they preferred to put it);
and (b) it is discriminatory, insofar as other ethnic groups who
are not Ogiek are not being evicted from this very place.
were referred to the Indian case of Tellis
and others v. Bombay Municipal Corporation and others 
LRC (Const) 351, on the first point concerning the right to life as one of
the constitutional fundamental rights.
It was a case of the
forcible eviction of pavement and slum dwellers in the city of
Bombay, India. When
we read that case, we found its main thrust on this point to be
that although the right to life was a wide and far-reaching light,
and the evidence suggested
(hat cviciion of The petitioners had deprived them of their
livelihood, The Constitution did not impose an absolute
embargo on deprivation of life or personal liberty. What was protected was protection against deprivation not according
to procedure established by law, which must be fair, just and
reasonable; e.g. affording
an intended evictee an opportunity to show why he should not he
moved. In fact in
that case the Supreme Court of India consisting of the very eminent Chief Justice Chandrachud, and the Hon Justices All,
Tulzapurkar, Reddy and Varandarajan, found and decided and concluded that The Bombay Municipal corporation were
justified in removing die petitioners, even though these
pavement and slum dwellers were probably the poorest of the poor
on the Planet Earth.
case is not, therefore, helpful to the present applicants.
The applicants are not the poorest of poor earthlings; and even
if they were, records show that they by themselves or by their
ancestors were given alternative land during the colonial days,
and such alternative land for Tinet Forest was compensation.
All along they have had a fair opportunity to
come to the court to challenge
the many evictions that have gone on before, but they have never
done so till this late. If
they showed to the Government reasons why they should not be
evicted on any previous occasions and the Government did not
reverse evictions, it was
incumbent upon the applicants or their forefathers to seek redress
of the law. Instead,
however, they have opted far either surreptitious or
forceful occupation of the forest.
applicants cannot say dial Tinnet forest is their land and,
therefore, their means of livelihood.
By attempting to show that the Government has allowed them
to remain in the area and by trying to found their right to remain
on the land by virtue of letters of land allotment and allocation,
parcels of the land as they tried to show in the attached copies
of those certificates of land allocation, the applicants thereby
recognized the Government as the owner of the land in question,
and the right, authority and the legal power of the Government to
allocate a part of its land to the applicants.
applicants maintain that the land was theirs by right, then how
could they accept allocation to them of what was theirs
by one who had no right and capacity to give and allocate what it
did not have or own? Once
they sought to peg
however lightly, their claim of light on these Government
certificates of allocation of land to themselves, the plaintiffs
forfeited a right to deny that the land belonged to the allocating
authority, and they cannot be heard to assert that
the land is theirs from lime immemorial when they are at the same
time accepting it from he whose title they deny.
So, we find that these particular plaintiffs are not being
deprived of their means to livelihood; they are merely being told
to go to where they had previously been removed: they have
alternate land to go to, namely, al Sururu, Likia, Teret, ect, but
they are resisting efforts to have them go there.
They have not said That The alternative land given them is
a dead moon incapable of sustaining human life.
say that to be evicted from the forest is to be deprived of the
means to livelihood because then there will be no place from
which to collect honey or where to cultivate and get wild game,
etc, is to miss the point. You
do not have to own a forest to hunt in it. You do not have to own a forest to harvest honey from it.
You do not have to own a forest to gather fruits from it.
This is like to say, that to climb Mount Kenya you must own
it; to fish in our territorial waters of the Indian
Ocean you must dwell on, and own the Indian Ocean; to drink water
from the weeping stone of Kakamega you
must own that stone; to have access to the scenic caves of Mount
Elgon you must own that mountain.
But as we all know,
those who fish in Lake Victoria do not own and reside on the Lake;
they come from afar and near: just as those who may wish
to exploit the natural resources of the Tinet Forest do not have
to reside in the Forest, and they may come from Tar away districts
or from nearby. We
know that those who exploit the proverbial Meru Oak from Mount
Kenya Forests do not necessarily dwell on that mountain in those
forests. Those who
enjoy the honey of Tharaka do not necessarily own the shrubs and
wild flowers and wild bees which manufacture it; nor do we who
enjoy that honey own the lands
where it is sourced. There
is no reason why the Ogiek, should be the only favoured community
to own and exploit at
source (he sources/of our natural resources, a privilege not
enjoyed or extended to other Kenyans.
thy are not being deprived of their means of livelihood and a
right to life. Like
every other Kenyan, they are being old not
to dwell on a means of livelihood preserved and protected for all
others in the Republic; but they can, like other Kenyans,
still eke out a livelihood out of the same forest area by
observing permit and licensing laws like everyone else does
or may do. The
applicants can obtain permits and licences to enter (the forest
and engage in some permissible and permitted
life-supporting economic activity there.
The quit-the-forest notice to the applicants does not bar
them from continuing
o enjoy the same privileges permitted by law, on obtaining the
statutory prescribed authorization from the relevant
authorities. They can
get those permits when they are outside the forest area; just the
same way other Kenyans who
do not live anywhere near this same forest are gaining access to
the forest and exploiting its resources, as we have been
told by the applicants. They do not dwell there, and yet they come there under permit.
Plainly, the means of livelihood
is not denied to the applicants.
The forest and its resources are open to the applicants as
much as they are to other
Kenyans, but under controlled and regulated access and
exploitation necessary for the good of all Kenya.
hunting and gathering in a territory were in themselves alone to
give automatic legal proprietary rights to the grounds and
soils we hunt and gather upon then those who graze cattle
nomadically in migratory shifts everywhere according to climatic
changes, would have claimed ownership of every inch of every soil
on which they have grazed their cattle.
fisherman who fished in the Sagana River or River Tana or in Lake
Victoria were to say his is the Sagana River, his
is the mighty Tana, his is Lake Victoria, then these and other
rivers would not belong to Kenya but to private persons; and
Lake Victoria would not be ours, but would have been grabbed tong
time ago by every fisherman.
But these gifts by Mother Nature to us have not suffered
that fate, because they are common property for the good of
everyone; just ns public
forests are common properly for the common weal of mankind.
They cannot be a free subject of uncontrolled and
unregulated privatisation either for the benefit of individuals or
a group of individuals howsoever classified and called.
is our considered opinion, that as the applicants in common with
all other Kenyans may still have access to the forest under
licences and permits the eviction order complained of has not
encroached on the fundamental rights of the applicants
as protected by the Constitution of Kenya, and their right to life
is intact; their livelihood can still be earned from
the forest as by law prescribed.
were referred to the Australian case of Eddie
Mabo and others v. The State of Queensland
 66 QLR 408. We
carefully read that case. Its
decision seeing to have overthrown the landlaw of that country of
about 200 years. The High
Court of Australia greatly benefited from the very careful and
closely reasoned arguments and a perfect analysis by the advocates
who argued the case. The
entire corpus of the common law and land statutes and customary
law rights of the indigenous peoples of Australia, were dissected
to their core by arguments most discerning; and the well-prepared
and well-presented lawyers' discourses on the whole law were
placed before the court. Here
we have missed the opportunity to closely analyse the whole of our
land law, because the various land statutes and customary law were
not argued, and the case was presented within the narrow limits of
the forests legislation and the extra-curial struggles and
resistance of the people who had been removed from the place and
we were denied the opportunity by a lack of full or any serious
argument on, and analysis of, the various relevant
land statutes, customary law rights, and the common law, we read
the Mabo case, but found that the material facts
in it and which led to the propositions of principle there cannot
be fairly likened to those obtaining in the instant case.
There the facts justified the analysis by the court of the
theory of universal and absolute crown ownership, the acquisition
of sovereignty, reception of the common law, crown title to
colonies and crown ownership of colonial land, the patrimony of
the nation, the royal prerogative, the need for recognition by the
crown of native title, the nature and incidents
of native title, the extinguishments of native title, the effect
of post-acquisition transactions, and deed of grant in
trust. The applicants
there had a culture and rights sharply different from those of the
applicants in the instant case.
Theirs was a life of settled people in houses in villages
in one fixed place, with land cultivation and crep agriculture as
their way of life. They
lived in houses organised in named villages, and one would be
moving from one village to another.
Land was culturally parcelled out to individuals, and
"boundaries are hi terms, of known land marks".
Gardening was of the most profound importance to the
inhabitants at and prior to early European contact, Gardening was
important not only Drum, the point of view of subsistence
but to provide produce for consumption or exchange.
Prestige depended on gardening prowess.
that kind of setting, those people's rights were to the land
itself. Our people of
Tinet Forest were concerned more with
hunting and gathering, with no territorial fixity.
They traditionally shifted fluid place to place in search
of hunting and gathering
facilities. For such
people climatic changes controlled their temporary residence.
Whether a people without a fixity
of residence could have proprietary rights to any given piece of
land, or whether they only had fights of access to hunting
and gathering grounds - whether a right of access to havens of
birds, game, fruits and honey gives title to the lands where wild
game, berries and bees are found - were not the focus of the
arguments in this case; and the material legal issues arising from
the various land law regimes were not canvassed before us as they
were in the Mabo case. In
the Mabo case the residents at no time ever conceded that
Government had a right over the land in question.
In the instant case the applicants conceded the right of
the Government over the land which they were asking the Government
to allocate to them. Government could not allocate to them what
was theirs already if it did not have ownership
considerations make it superfluous for us to deal specifically
with the other cases cited on this point, although we have
anxiously studied them, and we have found them not advancing the
applicants' case on the present facts before us.
regard to the complaint that there is discriminatory action by the
Government against the plaintiffs, the applicants said
that while the respondents say that they are taking the action
complained of because it is a gazetted forest area which
they seek to protect by evicting the plaintiffs from it, there are
other persons who are allowed to live in the same forest.
It is said that it is the plaintiffs alone who are being
assertion if true, and it has been denied, would obviously give
thee plaintiff a cause for feeling discriminated against unless
other lawful and proper considerations
entered the picture. The
trouble here is that this was a matter of evidence, and evidence
was required to prove
at least seven things:
who were these people;
when they entered to live in the forest;
what colour of right (if
any) they claimed to enter,
they are in violation of the provisions of the statute concerned;
wording of the order of eviction; and
exact scope of the older of eviction, particularly with regard to
to be adversely affected by this implementation.
ground for removing the applicants, i.e. whether they are being
removed soley or predominantly on grounds of their ethnicity.
on these things must be provided by the person alleging
discriminatory action against him.
For instance, in the case
of Akar v.
Attorney-General of Siera Leon,
 3 Ali ER 384, which was cited to us, a legislation was
alleged to be
discriminatory against a person not of negro African descent born
in Siera Leone acquiring citizenship at the time of independence. The legislation in question retrospectively limited
citizenship to persons of negro African descent.
It was struck
down as enacting discrimination on the ground of race.
To arrive at that decision the Judicial Committee of the Privy
Council had to analyse the precise wording of the legislation in
order to, find what was discriminatory in it, taken in its
a case here at home, Shah Vershi Devshi & Co. Ltd. v. The
Transport Licensing Board,  EA 289, decided by this
High Court composed of Chanan Singh, J, and Simpson, J (afterwards
Chief Justice of Kenya), refusal of a licence (under a transport licensing
legislation) to citizens of Kenya, by reason of their being of
Asian origin, led to the court holding
the treatment discriminatory.
To reach that conclusion the court was furnished with a
letter and the court paid particular
attention to it, in which was written by the chairman of the
licensing board, that the licences should be refused
"on the ground that the majority shares" were "owned
by non-citizens", and that Africans should be favoured.
As it turned
out "non-citizens" was only a euphemism covering
citizens who were not of black African stock.
Anyway, the point
is that the acts and actual words complained of were before the
same was what happened in the case of Madhwa and others v. The
City Council of Nairobi,  EA 406, where
a resolution of the Social Services and Housing Committee was in
the enumerated terms titled "Africanization of Commerce:
Municipal Market", then followed what had been resolved, and
was complained of as being discriminatory of
null-citizens being evicted from the market stalls by the City
Council of Nairobi. Again
the court had before it was expressed.
our case, the actual acts and words complained of were not placed
before us. What we
have before us are copies of
newspaper cuttings. They
bear headlines "Government to evict the Ogiek", and
"Ogiek notice slays, says DC".
have told us that there are in the forest people from other
newspapers did not mention anything
about such people, and whether the quit notice covered them.
The accuracy of those headlines was not guaranteed.
Ogiek people might have been the dominant community to capture the
newspaper headlines, but that did not necessarily exclude from the
quit order other persons. So,
there is no evidence before us providing discriminatory treatment
against the plaintiffs.
was argued in support of the plaintiffs, that the area cannot be
compulsorily acquired by the Government in this case.
It is the user of the forest which is being controlled
Mrs. Madahana and Mr. Njoroge, for the respondents said that the
Government is taking these steps to protect the forest area as a
water catchment area, they were summarily dismissed by Mr. Mirugi
who wondered as to when Government came to know that it was a
water catchment area; and said that the fact that the land is a
forest area gazetted as such, does not mean that human beings
should be prevented from living in that forest.
due respect, the court expected a more extended and in-depth
presentation on this very deep-seated problem of our environment
raised by the references to that problem as we discuss land rights
and land use, natural resources and their exploitation, human
settlement and landlessness.
But the casual way in which the issue of the preservation
and protection of rain water catchment areas, was handled by
counsel in these proceedings only goes to illustrate the negative
results of the purely economics-driven approaches to human and
social problems, without caring for the limitations of the
biosphere with a view to undertaking human, and socio-economic
development within the limits of Earths finite natural resources
endowments. There is a failure to realize that the unsustainable
utilization of our natural resources undermines our very human
grappling with our socio-economic cultural problem and the complex
relationship between the environment and good governance, we must
not ignore the linkages between landlessness, land tenure,
cultural practices and habits, land titles, land use. And natural
resources management, which must be at the heart of policy options
in environmental, constitutional law and human rights litigation
such as this one. While
we discuss rights in a macro-economic context, sight cannot be
lost of the legal and constitutional effects on the environment.
A narrow legalistic interpretation of human rights and
enforcement of absolute individual rights may only take away a
hospitable environment necessary for the enjoyment of those very
human rights. A sure
enforcement of legal rules for environmental governance and
management of our natural resources, is the only guarantee for our
very survival and enjoyment of our individual and human rights.
present the ultimate responsibility and task of good management of
our natural resources lies with the Government, with
the help and co-operation, of course, of individuals and groups of
civil society, including The Church.
governance will succeed or fait, depending on, how we all share
the responsibility for managing the rules of natural
resource management, the monitoring and evaluation and
re-evaluation of existing forms of coping with environmental
conservation and development, and depending on the feedback which
must be accessed all times, the appropriate reformulation and
rigorous enforcement of the relevant rules.
It is an increasingly complex exercise which must involve many actors at all limes.
And if as we urge
the upholding, of human rights in their purest form we do not
integrate environmental considerations
into our human and property rights, then we, as a country are
headed for a catastrophe in a foreseeable future.
Integrate environmental considerations in our arguments for
our clients human and property rights.
We do not want a situation where our constitutional terrain on which human and
property rights systems are rooted, cultivated and exploited
for short term political, economic or cultural gains and
satisfaction for a mere maximization of temporary economic
returns, based on development strategies and legal arrangements
for land ownership use and exploitation without
taking account of ecological principles and the centrality of long
term natural resources conservation rooted in a conservation
21st century Kenya, land ownership, land use, one's right to live
and one's right to livelihood, are not simply economic and
properly questions, naked individual jural rights, or a matter of
politics. All these, and more, are questions of the sustainable use of
natural resource's for the very survival of mankind before he can
begin to claim those "fundamental rights",
"the old individualistic models of development and property
has no place in to-day's socio-economic and political strategies.
To-day it is startling to hear arid legal arguments putting
excessive emphasis on the recognition and protection of
group or private property rights, at the expense of the
corresponding duty of ecological stewardship to meet tong-term national
expectations which humanity must place in land to guarantee the
survival of everyone. The
integration of environmental
factors into growth strategies and legal argument about human
rights, must be the core to all programmes, policies and the
administration of justice. Without
such integration we all loose humanity’s supportive environment
and we might
not be alive to pursue the right to live let alone the right to
live in the Tinet Forest.
a legal system which provides
extensive and simplified procedures for converting public land to
private ownership, or which gives a reckless access
to public natural resources, with little or no regard for
ecological and sustainable social developmental impacts, is a national
enemy of the people. We must all be ecological ignorance free; and a justice
system which does not uphold efforts
to protect the environment for sustainable development is a danger
to the enjoyment of human rights.
threat to the right to life and to livelihood, is not the
Government eviction orders in themselves.
The real threat to these human lights is the negative
of ecological mismanagement, neglect and the raping of the
resources endowed unto us by Mother Nature, which are
the most fundamental of all human rights: the light to breathe
fresh air from the forests so that we can live to hunt and gather;
the light to drink clean water so that we can have something to
sweat after hunting and gathering. Hence, the importance of the issue of preserving the rain
water catchment area.
have found from the evidential materials
before us in this case, that Sururu, Likia and Teret, among others,
were homes for persons who seeped back into
Tinet Forest and are now crying foul when they are being evicted
by Government for the umpteenth lime. It is not being
forthright to say they know no other home to go back to.
have found that there is no proof by the plaintiffs of lawful
re-entry after the various evictions.
They have simply kept on re-entering and re-occupying, only
to be met with repeated evictions.
pre-European history of the Ogiek and the plaintiffs was not
presented to us in court, to enable us determine whether
their claim that they were in Tinet Forest front time immemorial
is well-founded. We only meet them in the said forest in the 1930's.
Such recent history does not make the stay of the Ogiek in
the Tinet Forest dateless and inveterate (as
we understand the meaning of the expression "immemorial"
in this context); and nothing was placed before us by way
of early history to give them an ancestry in this particular place,
to confer them with any land rights.
are a migratory people, depending on the climate.
pretensions of to-day's Ogiek to conserve the forest when he has
moved away from his age-old pre-food-producing past which was
environmentally friendly, are short of candidness.
They have taken to different socio-economic pursuits
which may be inimical to forest conservation.
Government action complained of does not contravene the rights of
the plaintiffs to, the protection of the law, not to
be discriminated against, and to reside in any part of Kenya: it
is themselves who seek to confine themselves in one forest
only. Their right to life has not been contravened
by the forcible eviction from the forest; it is themselves who
wish to live as outlaws with no respect for the law
conserving and protecting forests: it is themselves who do not
want the public forest protected to sustain their lives and those
of others. They were compensated by an exchange of alternative lands for
upshot of everything we have said from the beginning of this
judgment up to this point is that the eviction is for the purposes
of saving the whole Kenya from a possible, environmental disaster, it is being carried out for the common good within statutory
powers; it is aimed at persons who have made home in the forest and are exploiting its resources without following the
statutory requirements, they have alternative land
given them ever since the colonial days, which is not shown
to be inhabitable. We
find that if any schools, churches, market places have been
developed, they are incompatible with the purposes for which
national forests are preserved,
and without following the law to put them up; the applicants have
acknowledged the rights of the Government
in and over the forest. There
was no evidence of discriminatory treatment of the applicants
against them on ethnic or other improper grounds.
No case was made out for compensation to be given once more.
The plaintiffs can live
anywhere in Kenya, subject to the law and the rights of others.
these reasons the court dismisses all the prayers sought.
Allow us to add that any other determination would be of
mischievous consequences for the country, and must lead td all
extent to prodigious vexatious litigation, and, perhaps to interminable
law suits. It would
be a fallacious mode and an unjustifiable mode of administering
justice between parties and
for the public good of this country.
In the context of this case, we know no safe way for this
country mid for these litigants,
than dismissing this case with costs to the respondents.
We so order.
and Dated by both of
us at Nairobi, this 23rd day of March, 2000.
O. Oguk & Richard Kuloba JJ.