Frustrated that the constant
harassment had gone for so long the Ogieks decided to go to court.
It all began on January 1, 1997 when Ogiek elders visited President
Moi at his home in Kabarak home in the Rift valley. The president
promised the Ogiek elders that he would look into their plight.
But on April 4, some
four Ogiek elders were arrested and charged with incitement when
they tried to stop the continued alienation of the Ogiek land.
"Dorobos sue AG, officers over forest land, Daily Nation, 26
On June 25 the Ogiek
living in Mau east decided that enough is enough and went to the
court82 seeking to stop the Attorney-General
and four senior government officials from surveying and allocating
their land to outsiders.
The application was taken
before Justice Richard Kuloba by lawyer Kathurima M'Inoti. The lawyer
sought to get the court's permission to be allowed to sue on behalf
of the whole Ogiek community resident in the Mau east forest. He
was also seeking orders to restrain the Attorney General, Rift Valley
Provincial Commissioner, the Provincial Forest Officer, and the
Director of Forestry from continuing to implement the purported
Mauche settlement scheme.
The group submitted in
court that since 1993, they had been removed from the land, which
was subsequently allocated to people from Kericho, Bomet and Transmara
districts. The lawyer further submitted:
"My clients earn a
living by growing maize, beans, potatoes, cabbages and rearing cattle,
sheep and goats. About 10% of the people living in the forest practice
the traditional way of life by hunting and gathering food".
The lawyer wanted the
court to prohibit the five from allocating land to non-Ogiek and
interfering with their continued possession and enjoyment of the
land and the court's protection of the land in Sururu, Likia, Teret,
and Sigotek forests.
"Court allows Dorobos to sue State over eviction", East African
Standard, 26 June 1997.
"Dorobos issue demo threat over land", Daily Nation, 30 July
On the same day the court
allowed the 22 applicants to sue the state.83
But even as the Ogieks were in court the allocation of the land
continued to an extent that on July 29, 1997 the community threatened
to stage a demonstration unless the exercise was stopped.84
Threatening letters had been written to several of them demanding
that they vacate the land.
When the suit finally
came up in court the Ogiek lawyer regretted that his client's land
in Mau east forest was still being dished and that the "strangers"
were displacing the Ogiek. On September 1 the judge set the case
for September 25, 1997.
"Court Halts Allocation", East African Standard, 16 October
The then chief Justice,
Majid Cockar, ruled on 15 September that a two-judge bench will
hear the case. On the same day the High Court halted the allocation
of the forest until the suit was heard and determined.85
Lady Justice Joyce Aluoch heard the suit.
But despite the court
order, the allocation continued unabated. On October 24 the Ogieks
threatened to go to court after senior government officials resumed
allocation of Mau East forest contrary to court orders.
The Ogiek lawyer, Dr
Gibson Kamau Kuria wrote to the Attorney General saying that government
officials had on October 23 resumed allocation, a clear contempt
The letter further said
that the Rift Valley provincial commissioner, Yusuf Haji, and his
Nyanza counterpart Wilson Chepkwony, Nakuru DC Kinuthia Mbuthia,
Rift Valley Forest officer, Joseph Rotich and the Director of Forestry
were coercing the community leaders to drop the case.
The continued allocation
was soon followed by a threat on May 1, 1998 by more than 1,000
youths teaming up as Movement for the Recognition of Ogiek People
who warned that they should not be held responsible for the consequences
that might occur if the demarcation of land continued. In the same
month Ogiek elders led by Kimaiyo Towett claimed that the Tugen
and Kipsigis used Nessuit forest to train and attack Kikuyus in
Njoro during the 1997 tribal clashes that rocked Njoro area.
"Land row to be sorted out today", Daily Nation, 20 July
"Dorobos Petition Government", Daily Nation, 11 October 1998.
after the threat and accusation, the government officials decided
to meet Ogiek officials and sort out the matter.86
By that time more than 8,000 people had invaded the Ogiek ancestral
land. But the row was never solved and in October the intruders
had continued to demolish Ogiek houses. This continued threat saw
the Ogieks petition the government87
to keep the intruders at bay. They accused the Kuresoi MP, Cheruiyot
Koskei of using his position to settle people who were not genuine
"Dorobo squatters in demo threat", Daily Nation, 1 December
Ogiek elders Samuel Ngetich, Richard Biomto and Kiprotich Marindany
said the settlement of the community was being frustrated by politicians
and local administration.88
"DC to hold Kipsigis eviction meeting", The People, 4 January
Ben Masharen, "Settlers get quit notice", The People, 13
The administration took
a new step at the beginning of 1999 when the Nakuru DC, David Litunda,
announced that he would meet with administration officers and members
of the Ogiek to chart out ways of evicting more than 7,000 members
of the Kipsigis community who had invaded Ogiek land.89
The government followed the meeting by issuing a notice giving the
Kipsigis seven days to vacate the land.90
But that turned out to
have been a false order tailored to have the Ogiek drop the court
cases. In May an Ogiek chief, Joseph Rorogo, was fired for siding
with his people. This angered the Ogieks who on May 9, held a demonstration
and barricaded Molo-Olenguruone road opposing the sacking of the
chief. The Ogieks said the chief was fired for being vocal against
the Permanent Secretary (PS) in the office of the president, Zakayo
Cheruiyot. The PS was accused of importing Kipsigis to settle in
the Ogiek land.
Mutheu Muli, "Ogiek land case put off", The People, 13 May
Further, the Ogiek refused
to drop the court battle, which continued to be put off, every time
they appeared in court.91
Frustrated the Ogieks
called a press conference in Nairobi in which they vowed to continue
with the case under all costs;
"We have donated our
lives as a sacrifice if that is what will buy justice to all",
their press statement said in part.
What happened after that
was a bombshell. On May 14 a day after the press conference, the
government issued a 14-day ultimatum to the over 5,000 Ogieks settling
in Tinet forest land to leave.
The Nakuru DC, John Litunda,
also disbanded the Ogiek settlement committee and said that the
government does not recognise the Tinet settlers any more.
Stephen Mkawale, "Government to evict the Ogiek", East African
Standard, 15 May 1999.
"This is just the
start of things as two other settlement schemes Saino and Ndoinet
forests are on the spotlight", the DC said.92
The meeting was boycotted
by all local civic leaders led by Tinet ward councillor Charles
Cheruiyot Rono who protested that the DC was being used by a senior
civil servant to drive a wedge between Kipsigis and Ogieks.
According to Catholic
priest Daniel Rono, the eviction order "smacked of a personal vendetta
by the PS as a result of the protest against the PS".
The priest said that
it was unfortunate that the community was being evicted at a time
it was settling down to serious farming and trading after being
shoved to and fro without assistance since Kenya's independence
Elijah Kinyanjui, "Dorobo's get quit notices", The People,
16 May 1999.
"The last two years are
the only times this community has settled down and engaged in useful
economic and social activity. It is the only time the community
has abandoned its traditional hunting and gathering lifestyle and
built 13 registered schools for the very first time".93
The Ogiek say their removal
from the forest was sinister because the DC did not say they want
to re-forest it. The suspicion at that time, and which is still
prevalent, is that the real motive is to pave way to the settlement
of Kipsigis people.
The Ogieks did not take
that lying down and they decided to move again to court.
"Government stopped from evicting Ogieks", Daily Nation, 22
On May 21 the Ogiek community
appeared before Nakuru Resident judge,94
David Rimita who restrained the government from evicting members
of the community from Tinet forest. Those restrained in person included
Rift Valley provincial Commissioner Francis Baya, Provincial Forest
Officer, Musa Tallam, and Nakuru DC, John Litunda.
Kena Claude, "Tension mounts as quit notice expires", The People,
27 May 1999.
"Judge refers Ogiek file to (Chief Justice) Chesoni", Daily Nation,
5 June 1999.
The quit-notice brought
new tension in the forest as the Ogieks wondered what to do.95
With the first case still un-resolved, the Ogieks were lucky to
have Nakuru judge David Rimita refer their case to Chief Justice
in Nairobi. In a ruling delivered in Nakuru Justice Rimita argued
that the Ogiek case "raised constitutional issues, which could only
be determined by a bench of at least two or more judges".96
Perhaps to let the Ogiek
understand that he was a forthright judge, Rimita asked members
of the Ogiek to move forward so that he could slowly explain why
he referred their case to Nairobi.
"Judge refers Ogiek file to (Chief Justice) Chesoni", Daily Nation,
5 June 1999.
"I do not want you
to go and say somebody is interfering with your case but I am just
following procedures in a case of this nature", said Rimita.97
By June 12, the Chief
Justice had not given directions on the case. This prompted the
Ogieks to protest and write a statement that asked the Chief Justice
to act quickly before the interim restraining orders lapsed. Justice
Rimita had extended the restraining orders to June 18 and there
was fear that if the orders expired before they were renewed the
administration would move in and evict them.
In an affidavit sworn
by Francis Kemei the community feared the government could "take
advantage of the lapse and forcibly evict us from Tinet forest".
In yet another bid to
intimidate the Ogieks the government moved in and threatened to
withdraw teachers from the 13 schools in Tinet.
The Ogiek lawyer Joseph
Sergon was forced to write to Nakuru District Education officer,
Joseph Yator, telling him to stop threatening to withdraw teachers.
"Unless Yator stops
his threats I am likely to move to court and institute contempt
proceedings against him", said Sergon.
"Stephen Mkawale, "Court extends injunction barring Ogiek's eviction",
East African Standard, 19 June 1999.
18 June the High Court in Nairobi extended the injunction barring
Ogiek's eviction.98 The order
was issued by Justices Samuel Oguk and Richard Kuloba who were to
hear the Ogiek case.
Lilian Nduta, "Government is against Ogieks, advocate tells court",
Daily Nation, 30 July 1999.
When the case started
documents were tabled showing that the Ogiek had been living in
the forests and had been under constant threat by the administration.
The Ogiek lawyer submitted in court that the Kenya government was
not truthful in saying that the Ogieks were "trespassers".99
The lawyer further to the two judges that even a 1937 census report
showed that the Ogieks lived in Tinet. Although this area was gazetted
as a forest area, records tabled in court showed that the community
lived inside the forest.
He further told the court
that the eviction notice only talked about Ogieks and left the Kipsigis
and Tugen communities who had settled there. The lawyer submitted
that this amounted to discrimination.
"Why were the Kipsigis
and Tugens not affected order", the lawyer asked.
But the government through
Principal state Counsel Judy Mahadana said the Ogiek were trespassers
in the Tinet forest and had been allocated land outside the forest
that they refused to take.
Benson Wambugu, "Tinet is our land, say evicted Ogiek", The
People, 30 July 1999.
"But how can a community
trespass in their ancestral land?", asked Ogiek lawyer in court.
The forest have remained their livelihood. The Ogiek have no option
but to stay in the forest so that they get their food and practice
their culture. If they are moved out, they have nowhere to settle".100
As that happened the
State kept on delaying the case and filing "fresh affidavits and
evidence". On November, the state through its counsel, Judy Mahadana,
submitted in court:
"The Ogieks rights
to livelihood in the forest, if any, were extinguished by section
70 of the Native Trust Land ordinance".
Elijah Kinyanjui, "The day the Ogieks angered president", The
People, 26 November 1999.
the scenes, some politicians were trying to woo the Ogiek to drop
the case. A Kenyan daily101 later
reported how President Moi met a group of Ogiek elders at State
Among those who went
to State House were Kipsang Kilel, a respected Ogiek elder, Joseph
Towett the Ogiek Welfare Council leader, and Tinet ward councillor
Charles Cheruiyot Rono who was also the chairman of the disbanded
Ogiek settlement committee.
Rono is reported to have
told Moi on the face that the list of Ogieks compiled by a District
Officer named Arap Samoei was fake and that out of the 3,500 names
in that list only 200 were genuine Ogieks. Moi got angry about those
allegations and became all the more furious when Towett stood to
up and supported Rono.
The paper reported that
Moi stood up and asked:
"Who went to accuse
me in Court? You know this (case) is causing me great pain".
The president then asked
the group to wait for a few minutes and he came back holding a bundle
of papers. He then led the list of 10 Ogieks who had filed the case
against the state. When he came across the name of Kipsang Kilel,
the Ogiek senior elder, he turned to him and asked:
"Even you took me
To which Kiplel replied:
"Mzee, we were just
taking precautions against losing our land. We were also buying
time through the injunction to reach you to assist us. You know
Mzee, if someone approaches you while armed with a panga, the automatic
reflex is to lift your hand to protect your head, although one is
well aware that the panga can cut the hand".
Moi is reported to have
laughed and said:
"Let the matter go
on. I have no worry because I am also that court".
"Ogieks rejected land, Court told", Daily Nation, 10 December
As the saga continued
in court, the State further submitted the Ogieks were given land
at the Kipsigis Native Reserve but abandoned it.102
The State told the court that the Ogiek moved back to the forest
and this resulted to the 1956 eviction. The state counsel said that
any rights the Ogiek had in the Kipsigis Native Reserve were voided
"Other Kenyans took
advantage of the Ogieks failure to participate in the land redistribution
after independence and registered themselves as Ogieks for purposes
of acquiring the Kipsigis Trust Land", the state submitted.
It now appears that the
Ogiek were set to lose yet another land as new groups attempted
to register as Ogieks for the second time. The elders took some
human rights activists into the forest to see the continued destruction
of the Ogiek habitats. On December 15 an Ogiek leader, Ezekiel Kesendany,
was arrested and questioned for over six hours by the local security
committee on allegations that he took foreigners to tresspass on
Elijah Kinyanjui, "Moi men grab Ogiek forest", The People,
18 December 1999.
As the case dragged on
in court Ogiek elders revealed that the State was intimidating them
to drop the court case. They also claimed that well-connected Kalenjin
tribesmen were continuing to grab the forest.103
It was during this press conference that they named Kipkoech Birir,
a manager at the Moi-owned Kiptagich Tea Estate, as the man leading
the onslaught on Ogiek land.
The local ruling party
official David Sitienei told a local daily that it was "ironical
that the State was very keen to evict the Ogiek on grounds that
Tinet is a gazetted forest, conservation and water catchment area
yet politically-correct people were busy alienating the land from
See Elijah Kinyanjui, "The day the Ogieks angered president", The
People, 26 November 1999.
Kimutai Ng'eno, "Ogieks plea over Mau Forest", The People,
19 March 2000.
the press conference two Ogiek leaders were forced to go into hiding
after the provincial administration sought them to explain why the
took "foreigners" to Tinet forest. The two, Ezekiel Kesendany and
Joseph Rorogu, were also being accused of "leaking sensitive information
regarding the meeting between Moi and Ogiek leaders".104
In early March 2000 they made a new plea asking the government to
intervene since members of the Kalenjin community were "cutting
down and burning their ancestral forest".105
"Ogiek face eviction as their case is dismissed", Daily Nation,
24 March 2000.
Four days later the High
Court in Nairobi ruled on their case and approved the eviction of
the Ogiek from Mau forests.106
"The eviction is for
the purposes of saving the whole Kenya from a possible environmental
disaster and it is being carried out for the common good within
statutory powers", said the two judges, Samuel Oguk and Richard
The judges went further
and twisted the knife:
"There is no reason
why the Ogiek should be the only favoured community to own and exploit
our natural resources, a privilege not enjoyed or extended by other
Even without visiting
the forest to ascertain what was going on, the judges agreed with
the government that the disputed forest is a prime area reserved
for the benefit of the public. Under the gazetted law, hunting is
outlawed in the forest, unless under a special license. It also
prohibits the collection of honey. What this means is that the Ogieks
could not practice their cultural activities without breaking the
The judges went as far
as abusing the Ogiek:
"These people do not
think much about the law, especially the Forest act, ...there is
no reason why the Ogieks should be the only community to own and
exploit a means of livelihood preserved and protected for all Kenyans...the
Ogieks can live anywhere in Kenya subject to the laws of the country.
The eviction is for the common good for all Kenyans".
The outcome of the Ogiek
case was retrogressive. Although Ogiek lawyers submitted that the
right to life of the Ogiek was under threat following the eviction
order the judges said:
"The real threat to
life is not eviction of the Ogieks, but the negative imminent effects
of ecological mismanagement in the forest. The Ogieks can still
obtain their livelihood from the forest, without inhabiting it.
Their right to life would still remain intact".
The Kenyan court thus
failed to guarantee the Ogiek their right to the Tinet forest habitats.
It failed to be more creative in defending and implementing the
rights of the minority.
"It is unfortunate
that today the judiciary has not yet come to terms with or even
understood the constitutional protection of minorities", says Mugambi
Kiai of Kenya Human Rights Commission.
The court also failed
to dwell on the submission that the motive behind the eviction was
to give out the land to individuals close to the power rather than
save the forest which had been intact even with the Ogieks inside
"There is a political
interference. But we are powerless because we have no strong politicians
to defend us", says Philip Kosge, a member of the Ogiek community.