THE NULLITY OF CONVERSION OF CHEPKITALE TRUST LAND INTO A NATIONAL RESERVE

INTRODUCTION

In a recent judgment delivered on 26/09/2022 namely:-Kitelo & 2 others v County Government of Bungoma & another (Environment & Land Case 10?of?2020) [2022]?KEELC?4901?(KLR), it was held that the conversion of the trust land occupied by the Ogiek/Ndorobo Community of Mt Elgon into Chepkitale National Reserve is null and void without any legal effect.

BRIEF FACTS

The plaintiffs moved to the court suing as representatives of the Ogiek/Ndorobo Community of Mt Elgon. They sued the County Government of Bungoma and the Attorney General (the 1st?and 2nd?defendants respectively) seeking various remedies with regard to the conversion of trust land which they occupied and which they alleged was converted into Chepkitale National Reserve without following the procedure set out in the law.

Accordingly, the plaintiffs argued that the order issued on June 6, 2000, was null and void. The plaintiffs also claimed that there was Environmental Impact Assessment Report submitted to the National Environment Management Authority.

The court made the following orders:-

• The plaintiffs approached the court suing as representatives of the Community. The 1st?plaintiff confirmed when cross-examined that the suit was filed on behalf of over 6000 members of the Community who knew about the case by word of mouth and public notices.
• A document titled “Report on Chepkitale National Reserve and the Ogiek Community” from a Government agency confirmed Chepkitale was trust land held by the Mt Elgon County Council in trust for the Community.
• The conversion of the land in dispute from trust land to a national reserve was done through Legal Notice No 88 dated June 6, 2000. The conversion of the trust land was done improperly using repealed law and therefore could not be used and no authority could be derived from it.
• The Mt Elgon County Council did not comply with?the Constitution of Kenya,2010, and other relevant laws in converting the land in dispute from trust land to a national reserve. The plaintiffs made it clear the procedure of the law was not followed.
• Pleadings and submissions, no matter how robust or persuasive, were not evidence upon which a court could base any decision. Disputes were only determined on the basis of the parties’ evidence. The plaintiffs failed to tender any evidence in contrary and the court had no choice but to accept the evidence as the truth.
• There was no evidence of an Environmental Impact Assessment Report to suggest that the proposed project on the environment was approved was non-existent.
• The plaintiffs had no authority to file the case on behalf of the community of Ogiek /Ndorobo hence the court was bound to make orders for the parties in the case alone.

CONCLUSION

It was, therefore, ordered that the declaration was issued that the conversion of the suit land into a national reserve vide the Gazette Notice No 88 dated June 6, 2000, was unconstitutional, unlawful, and of no legal effect. The land was to revert to the pre-June 6, 2000 status as Chepkitale Trust.

Ruth Rotich is an Advocate of the High Court of Kenya, Member of the Young Lawyers Committee Law Society of Kenya; Owner of Legal Podcast WAKILI GUMZO, Human Rights Activist, and an Academic Scholar.