The Kenya Forest Service wants the illegal settlers in Eastern Mau to pack and go, saying due process was not adhered to in the "purported alteration of forest boundary".
The head of Survey and Mapping at the Service, Evans Kegode, on Monday told the Nakuru Environment and Lands court judge John Mutungi that the settlements within the Eastern Mau forest are illegal.
“The settlements within Eastern Mau forest did not adhere to the laid- down procedure of altering forest boundaries as stipulated in the Forest Act Cap 385. And and neither did the purported settlements utilise the procedures developed under various governments’ projects,” Kegode said during cross-examination.
Kegode who was being cross-examined by Senior State Counsel Fronicah Shirika said the government assembled a multi-agency team on June 27, 2020, to kick out the illegal settlers.
The multi-agency team assembled in Nessuit comprised officers drawn from the Kenya Police Service CA and KFS rangers.
“The government operation was aimed at recovering the land from unregistered illegal settlers,” Kegode told a fully packed court.
Kegode was being cross-examined in a case filed in 2020 by Nessuit MCA Samuel Tonui through lawyer Kipkoech Ngetich.
Nessuit, Marioshoni, Sururu, Likia, Terit and Sigotik settlement schemes are some of the areas where the state wants settlers kicked out.
Thousands of people on 35,000 hectares (86,486.75 acres) are set to be affected.
Lawyer Steve Biko is representing settlers some of whom hold the titles that they allegedly obtained between 1997 and 2013 before a caveat was imposed on the land.
The settlers in the case are against the government’s planned eviction.
KFS, the Ministry of Environment and Forestry, the Attorney General and the regional commissioner are among those sued.
On June 28, 2020, the government started the operation to stop all illegal human activities in the forest.
However, in December 2020, Justice Mutungi temporarily stopped the evictions.
The Eastern Mau forest block is one of the 22 blocks forming the Mau Forest Complex.
It covers 1.12 million acres and is a major catchment for 12 major rivers that feed five lakes across five counties.
The Mau Forest complex is the largest closed‐canopy forest ecosystem stretching across five counties — Narok, Bomet, Kericho, Nakuru and Uasin Gishu.
Kegode said the block has immense benefits as it is one of the unique, montane and highly biodiverse forests of huge significance in forest biodiversity, productivity, ecology and provision of environmental services.
“Rivers emanating from this forest block are the Molo, Njoro, Rongai, Nessuit, Makalia and Enderit which flow eastwards / north feeding Lake Nakuru, Elementaita, and Baringo whose ecological and economic benefits are huge,” Kegode said.
Kegode said the block is a critical source of the Mara River whose source is the Enapuiyapui wetlands situated in Kiptunga/ Mariashoni.
“The Mara Basin and ecosystem is a world-famous site for viewing the spectacular wildebeest migration and other tourist attractions as well as thriving livestock sector,” he said.
Kegode said KFS will not relent until the block is conserved for future generations owing to its benefits.
He said some of the titles produced in court and held by the settlers were issued even before the alteration of forest boundaries in Eastern Mau was effected.
Kegode said the illegal settlements started without prior creation of the forest boundary within the Eastern Mau Forest block as detailed in the Kenya Forest Working Group report of February 2001.
He disowned boundary plan No. 175/388 saying it did not originate from the forest department as required by laws.
Kegode took the court through the process followed to exercise gazetted forest land which he said was not adhered to.
He said as per Cap 385, the process of exercising gazetted forest starts with communication from the ministry of environment to the forest department.
“This will be followed by surveying of the forest block to be altered by the survey and mapping of the forest department,” Kegode said.
Kegode said the survey plans from the survey are then forwarded to the Director of Survey for approval and authentication.
“On approval, the director of the survey will communicate to the forest department, forwarding copies of the approved survey plan accompanied with authentication slip,” Kegode said.
Kegode said the approved plan will be used to prepare a boundary plan by the forest department of survey and mapping.
He said the boundary plan is then forwarded to the director of the survey for approval.
“Once the boundary plan has been approved by the director of the survey, the director will communicate by forwarding copies of the approved plan to the forest department. Forest department will then forward draft schedules with boundary plan to the Ministry for publication of an intention to alter boundaries in the Kenya Gazette,” Kegode said.
Kegode said should the intention to alter forest boundaries be challenged, the process will stop.
He said for the case of Eastern Mau, the process was challenged.
“If the process is not challenged within 28 days of the intention to degazet, a legal notice will be published in the Kenya Gazette formalising the intention,” he said.
Lawyer Ngetich said the late and former environment minister Francis Nyenze had started the process of excising parts of the block in 2001.
Kegode however said the process hit a snack after the process was opposed.
Lawyer Ngetich, however, told the court that former minister Noah Katana Ngala's Legal Notice No 142 dated June 8, 2001, altered the boundary of the Eastern Mau block.
In the Legal Notice, Ngala altered land measuring approximately 35,301.01 hectares (87,230.5607605 acres).
Kegode however said due process was not followed after the first attempt by Nyenze failed.
Kegode heaped t blame on Ngala for going ahead and issuing a legal notice without following the laid down processes.
“Ngala was aware that when the intention has been challenged, there should not have been a legal notice.”
He maintained that the forest boundary of the forest is intact and there has been no alteration whatsoever.
Kegode said the Eastern Mau block was proclaimed a forest reserve through a proclamation No. 44 of April 30, 1932, and declared a Central Forest reserve through Legal Notice No. 174 of 1964.
“At gazettement, the forest measured 65,008.30 hectares (160,639 acres),” he said.
Kegode said the 2003 Ndungu Commission had also flagged the illegal and irregular allocation of public land.
He said the Commission had called for the revocation of all the titles that had been issued and to maintain the area as a forest.
Kegode said all purported settlement schemes within the block are illegal as the forest area was not available for allocation.
He also reiterated that the title deeds do not stand the test of time as they were issued on gazetted forest land.
This irked the two lawyers of the settlers.
Ngetich said amenities such as schools, churches, gazetted police stations in Mauche and Nessuit, schools, roads, and power lines have been put up in the contested area.
Kegode however said the existence of such amenities does not legalize illegality.
He said the amenities were previously being utilized by communities that used to reside in protected areas but have since the 1990s been banned.
“They used to be facilitated with such amenities,” he said.
Ngetich had made an application for the court to visit some of the affected areas.
The lawyer said the decision of the court will have a ripple effect on the constituencies of Njoro, Molo, Kuresoi South and North.
However, Justice Mutungi said there is no basis to do so as the majority of the facts in the case are not in dispute.
However, the process was at the heart of the dispute.
Justice Mutungi gave parties 30 days to make final closing submissions.
The case is coming up on May 29.
(Edited by V. Graham)
