At least 50,000 occupants of the Eastern Mau Forest want a judge to hear and determine their case against the government, despite his transfer.
In this case, the residents sued in July 2020 to stop the government from evicting them from the forest.
Justice John Mutungi, formerly of the Environment and Lands Court in Nakuru, who was hearing the case has since been transferred.
Several witnesses have already testified in the case. The matter was to be heard on Wednesday and Thursday last week by Justice Anthony Ombwayo.
But lawyer Kipkoech Ng'etich, who is representing the residents, wrote a letter to the Chief Justice requesting her to allow Justice Mutungi to hear the case to its conclusion.
He said in the letter that the case had been heard substantially and only two witnesses were remaining.
"We have noticed that Hon Justice Mutungi will be transferred from the Environment and Lands Court in Nakuru and therefore humbly request you allow Hon Justice J Mutungi to hear and determine the matter to its conclusion in Nakuru in the interest of justice and to save precious judicial time considering how far the case has progressed," reads the letter dated September 26.
Ng'etich represents the residents of Nessuit, Marioshoni, Sururu, Lilia, Terit and Sigotik settlement schemes forming part of the Eastern Mau.
The case was filed by Nessuit MCA Samuel Tonui on behalf of the locals in 2020.
The Ogiek community were also later enjoined in the case.
Last week, the lawyer told Justice Ombwayo that they were waiting for the Chief Justice to give the way forward.
He pleaded with Justice Ombwayo to direct that the matter be heard by judge Mutungi.
Justice Ombwayo allowed the request and directed that the matter proceeds before Justice Mutungi.
"Since the matter was part-heard before Justice Mutungi, petitioners closed their case, and respondents part-heard. The matter to proceed before him on a date we will consult he will be available. I will give tentative dates," said Judge Ombwayo.
He directed that the matter be heard on February 27 and February 28, 2023.
Lawyer Steve Biko, representing over 2,000 members of a self-help group with title deeds in the area, said justice will be served if Mutungi is allowed to hear and finalise the matter, considering the evidence already taken.
State Counsel Fronicah Shirika also agreed that it would be ideal for Justice Mutungi to hear the remaining witnesses.
The Eastern Mau Forest block in Nakuru County has over the years been marred by perennial conflicts resulting from land boundary issues, with the government carrying out a series of evictions.
The Environment and Lands Court issued an order in July 2020, allowing the residents to continue living in the forest.
According to court documents, the evictions that triggered the case began on June 28, 2020. The multi-agency operation was undertaken by the Kenya Forest Service (KFS) in conjunction with the National Police Service.
The lawyers representing the residents - Ng'etich and Renny Langat - said the officers torched and destroyed property worth millions of shillings in the disguise that the operation was intended to stop all illegal human activities in the forests that form the eastern side of Mau Forest Complex.
Justice Mutungi said having perused the Notice of Motion dated July 16, 2020, together with the petition, he was persuaded that it raised weighty and valid constitutional issues.
On September 21, 2020, then-President Uhuru Kenyatta directed Interior Cabinet Secretary Fred Matiang'i to constitute a multi-agency team to resettle communities and review the boundary across the block.
The team was to conduct an audit, adjudication, and survey and place beacons on the land in parts of Marioshoni, Nessuit, Bararget, Likia, Terer and Sururu.
The State hinted that the activities being carried out would lead to the issuance of land title deeds to those living in the Eastern Mau.
The Ogiek community, however, moved to court to challenge the legality of the task force. Justice Mutungi in December 2020 stopped the issuance of the title deeds. The suit by the Ogiek was then consolidated Tonui's.
Eastern Mau Forest forms part of the larger Mau Forest complex.
Mau Forest complex is the largest forest ecosystem and the most important water tower in Kenya, covering 455,000 hectares and comprising 22 forest blocks. It is a crucial water catchment for at least 12 rivers feeding into major lakes in Kenya. It is also a globally recognised Unesco world heritage site.
Two weeks ago a three-judge bench in Narok ruled that the Mau Forest complex needs to be protected.
Judges Mutungi, Mohammed Kullow and George Ong'ondo, in a judgment dated October 13, said neither the government nor the court can abdicate its responsibilities in safeguarding and conserving the environment.
They made the ruling in a suit filed by Mau evictees who were challenging the government's decision to evict them.
The judges said the government had a clear duty and obligation to ensure the Maasai Mau forest was not depleted through illegal allocations.
"The Maasai Mau Forest, and indeed the entire Mau Forest complex, needs to be conserved and protected. It cannot be gainsaid why the Mau Forest complex requires to be protected and conserved as a critical water tower," reads the judgment.
jchepkwony@standardmedia.co.ke
