• The Sengwer community has been claiming ownership of Embobut forest as ancestral land.
• KFS kicked them out as it sought to conserve and manage the forest as per its mandate.
The Sengwer community has been dealt a major blow after an Eldoret court threw out two petitions over Embobut Forest land.
The community had staked a claim for the land saying it belonged to their ancestors. In a petition dated March 22, 2013, it sought an order directing Kenya Forest Service not to evict its members from the forest.
In another petition Number 3 of 2018, the community sought a court declaration that the violent attacks, burning of houses, destruction of property and eviction of its members from Embobut and threats of eviction violated their rights to live in the forest.
But giving the judgment through a video link on May 13 Environment and Land Court Judge S. M. Kibunja dismissed the petitions.
"That the foregoing shows that the petitioners have failed to establish their claims against the respective respondents, the court is of the view that this being public-spirited proceedings, each party should bear their own costs,” the judge ordered.
The community had also sought the protection of their rights, individually and in association with others, to participate in the cultural life guaranteed by Article 44 of the Constitution.
Members said that the decision to evict them had been done without their "free informed participation".
The respondents in the case included the Kenya Forest Service, KFS former director Emilio Mugo, KFS commandant Alex Lemarkoko, KFS North Rift commandant Stephen Chessa, the Attorney General, and the National Land Commission.
The community further wanted the NLC compelled to order the observance of the moratorium with respect to community land.
It wanted a declaration that the actions of the county commissioner, KFS and its officers in burning houses and destroying property were a violation of the values and its principles of governance as outlined in the Constitution.
Members also sought a permanent injunction “restraining the respondents or their agents from interfering with the quiet enjoyment of life and property of Sengwer community of Embobut”.
They cited harassment, burning and destruction of property, evictions or threats of eviction.
However, the KFS, in its response, said Embobut is one of the three forests within Cherangany Hills that were declared national forests before being gazetted by the colonial administration through legal notice No. 26 of 1954.
The service said the forest was then declared Central Forest by legal notice no. 174 of May 20, 1964, thus it is a protected forest under the country's Constitution and statutes. It said the bid to restore and conserve the forest was mooted in 2009 after the government set up a task force to identify genuine squatters and suggest recommendation to restore it.
The service said the government had proposed to resettle squatters elsewhere. However, the squatters preferred monetary rewards instead. After consultations, each of 2,864 households originally squatting in the forest was paid Sh400,000 to purchase alternative land outside the forest, the state agency said.
The judge, therefore, said the proclamation and subsequent gazettement of Embobut forest as reserve had not been disputed. He said the community had failed to tender evidence showing the land had been legally and procedurally degazetted as protected forest or procedurally and legally alienated to them.
Kibunja noted that KFS has a duty to perform functions as set out by Section 8 of the Forest Conservation and Management Act, 2016, which includes conserving, protecting and managing all public forests.
The judge said the community should consider pursuing their claim that the forest land is ancestral through the NLC. Alternatively, it can apply for a licence of permits to access the cultural or religious sites situated in the forest from the KFS.
(Edited by F'Orieny)