Saving the Mau: Landmark ruling that boosted conservation

An aerial view of Mau Forest. [Joseph Kipsang, Standard]

Over the years, the hunger for more land has threatened existing water towers in the country.

Encroachments leading to destruction have been reported in various forests as people seek more land for farming and settlement forcing the government to enforce evictions to avert more destruction.

The evictions have, however, ended in courts with some of the occupants claiming to have been allocated land by the government, while some say they purchased the land and have ownership documents. While some cases have been determined, others are still pending in court.

In March this year, the Environment and Lands Court dismissed a suit by over 800 individuals claiming they were allocated land in the Lower Ndoinet Settlement Scheme in the Mau water tower but had not been issued title deeds.

Stephen Kipruto filed the suit in 2012 on behalf of 850 others. They had sued the Attorney General, the Commissioner of Lands, the District Commissioner Bureti, the District Forest Officer, Forest Officer Ndoinet, and the officer Commanding Litein Police Station.

Kipruto stated that on January 31, 2006, the administration police unlawfully destroyed their dwellings and schools and rendered them homeless. He claimed the land was allotted to them in the Western part of the Mau forest, gazetted in Legal Notice No. 148 of February 16, 2001, and lawfully belonged to them.

He also wanted the court to compel the government to issue them with title deeds.

Evans Kegode, the Head of Survey and Mapping at Kenya Forest Service said the legal notice declaring the area as being a forest is still in existence and that the land still belongs to the Kenya Forest Service.

Judge Mwangi Njoroge, in his judgment, said the over 800 people failed to establish their claim against the government and dismissed their case.

The judge said the government officials, in evicting persons out of what is forest land, were only carrying out their duty of protecting the environment from any further degradation by the affected persons and thus were free from blame.

“It is therefore imperative to conserve the Mau escarpment area under tree cover to ensure observation of the principles of inter-generational and intra-generational equity that are very clearly espoused by the Environmental Management and Co-Ordination Act 1999,” ruled the court.

In April 2023, the Environment and Land Court in Nakuru upheld a government decision to evict over 1,000 people from a section of the Mau Forest. The 1,193 people evicted from the Sururu settlement scheme in Eastern Mau were pushing for compensation after they were kicked out of the water tower in 2004.

“Our environment is everything, and if we do not protect our beautiful environment, then we will end up destroying our lives,” read a judgment by Environment and Lands Court Judge Anthony Ombwayo delivered on April 18, 2023.

Kiptarus arap Tabot and 1,192 others sued the government, seeking compensation following their August 2004 eviction. They said they were left landless.

The Attorney General, in his response, stated that in 1997, the government excised a part of the gazetted Mau Forest Reserve measuring 35,301 hectares to establish settlement schemes to settle landless people.

The excised area was divided into several settlement schemes; Sururu, Likia, Teret, Nesuit, Sigotik, Ngongongeni, Kapsita and Baraget.

Eastern Mau Forest, the court heard, initially covered approximately 160,639 acres. However, over the years, the acreage has been reduced.

The AG said that, in December 2003, Enderit Forest, which neighbours Sururu Settlement Scheme, was unlawfully invaded by a large group of people who apportioned themselves parcels of land.

Bernard Wanyonyi, a land surveyor, testified that he was ordered by the court to do a survey and file a report. In the report dated October 13, 2019, Wanyonyi confirmed the settlement was in a forest area.

The parcels of land allegedly belonging to the 1,193 people, the court said, were found nowhere in the available Registry Index Map but fell in the gazetted forest reserve, namely Enderit Forest Reserve.

The judge noted that the over 1,000 people were not allocated land under any of the provisions for the allocation of government forests for private purposes. The title deeds, he said, were issued illegally and un-procedurally as the land remains protected forest land.

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]

Justice Ombwayo noted that the cost of restoration of the destroyed forest surpasses the cost incurred by the residents when their properties were destroyed.

“I do not intend to put the plaintiffs back in the forest, hence, I dismiss the prayers that the plaintiffs be placed back in forest land. I also dismiss the prayer for alternative land as the same has no basis,” the judge said.

On October 13, 2022, a three-judge bench delivered almost a similar verdict in a suit by over 500 evictees of the Maasai Mau Section of the Mau Forest.

Judges John Mutungi, George Ong’ondo, and Mohammed Kullow of the Land and Environment Court found that the occupation of the forest by individuals was illegal and should not have happened because it endangered the ecosystem.

The judges declared the eviction of families during the 2018 ‘Operation Okoa Msitu wa Mau’ by the government as lawful and ruled that none of the victims should be compensated.

The judgment was about the subdivision of five group ranches in the area. The judges said the subdivision of Reiyo, Enakishomi, Sisiyian, Enoosokon, and Nkaroni Group Ranches was beyond the initial acreage at the time of adjudication.

They said the Maasai Mau Forest and the entire Mau Forest Complex need 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. The environment serves the present and the future generations, hence there is a need that the environment is not degraded to the prejudice of future generations,” they stated.

They declared that the subdivided land over and above the initially registered acreage of the group ranch land parcels comprised part of the Maasai Mau Forest reserve and the same should be restored to the forest.

The judges ordered that the land titles were obtained illegally, unlawfully, and un-procedurally, hence a nullity and constituted unlawful encroachment into the Maasai Mau Forest Reserve.

The court said once the Maasai Mau Forest boundary is determined, the government, to protect and conserve it, shall erect a perimeter fence on the portion of the forest abutting the land adjudicated to group ranches.