The government has a hard task of implementing the decision by African Court on Human and People’s Rights to settle members of the Ogiek community in the Mau.
The international court last week pronounced itself in the matter ruling in the favour of the 40,000 Ogiek community members.
The government is caught between implementing the decision and reclaiming the water tower that has faced destruction.
The court ordered the Kenyan government to pay the Ogiek Sh157 million for moral and material prejudice suffered.
The court said that the government, being responsible for the violation of the rights of the Ogiek, bore the responsibility of rectifying the consequences of its wrongful acts.
The court also held that the physical delineation, demarcation and titling of Ogiek ancestral land is important.
Thus, the government should undertake an exercise of delimitation, demarcation and titling in order to protect the Ogiek’s right to property, which in this case revolves around their occupation, use and enjoyment of the Mau Forest and its various resources.
Of interest is the decision by the court directing the government to start dialogue and consultations between the Ogiek and non-Ogiek communities over the land.
The court also ordered that in cases where land was allocated to non-Ogiek and where it proves impossible to reach a compromise, the government must either compensate the concerned third parties and return the land to the Ogiek.
In the judgment, government was ordered to within one year submit the status of the implementation of the orders issued by the court.
Even with the decision, the fight for the water tower continues. A number of cases filed in Kenyan courts remain undetermined.
Other non-Ogiek communities also claim part of the forest and have instituted a number of suits against the government for evicting them.
The communities claim to be rightful owners of the parcels of land in the Mau.
In Nakuru, a three-judge bench was tasked with hearing a suit filed by 500 Masaai Forest evictees against the government in 2018.
The residents defended their title deeds, saying they were products of comprehensive processes that involved various public institutions such as the Survey Department, Lands officers, the defunct Narok County Council and the Director of Land Adjudication and Settlement.
The government in a cross-petition is seeking the cancellation of title deeds in the hands of Maasai Mau forest settlers.
The judges were to deliver their ruling on July 9 but the sitting was postponed.
“Take notice that judgment in the above matter was scheduled for delivery on 9th June 2022, however, due to unavoidable circumstances the judgment will not be ready,” said a notice by the Deputy Registrar, Environment and Lands Court, dated May 31.
The notice indicated that another date will be set.
Also in the court is a suit filed by residents of the Eastern part of the Mau in July 2020 seeking to stop their eviction.
In August 2020, a multi-agency team was formed to re-mark boundaries in the Eastern Mau forest.
Locals, however, filed a case in November 2020 challenging the legality of the multi-agency.
The multi-agency team was conducting an audit, adjudication, and survey and placing beacons on the land in parts of Marioshoni, Nessuit, Bararget, Likia, Terer and Sururu. The process has since been stopped by the court.
Nakuru County Assembly Deputy Speaker Samuel Tonui filed the suit on behalf of the over 50, 000 settlers occupying 35, 301-hectare land he described as a settlement scheme.
Tonui, through lawyers Kipkoech Ng’etich and Renny Langat sought orders to bar the government from evicting the locals.
He said the evictions of people in Nessuit, Marioshoni, Sururu, Lilia, Terit and Sigotik settlement schemes contravened the law.
He said a survey was conducted in 1997, beacons placed and a cut-line established. The people facing eviction he added have valid title deeds issued by the government in 1997, 2005 and in 2013.
The Ogiek community, an interested party in the case, claims they have a good reason to believe that it risks losing its ancestral land because the government is carrying out activities at a high speed so that they may issue titles.
Martin Lele, the Ogiek Council of Elders secretary who in March said they were not happy following the revelation that the government was going to allocate each of the Eastern Mau residents five-acres.
Lele said they were trying to defend what was theirs and made reference to the decision by the African Court on Human and Peoples’ Rights delivered in May 2017 that directed the government to resettle them and another decision by Justice Pauline Nyamweya delivered on March 17, 2014.
Judge Nyamweya in her judgment declared that the right to life, right to dignity and the economic and social rights of the members of the Ogiek community.
