Members of the Ogiek community have failed in their bid to compel the government through the courts to allow them to establish homes within the Mau Forest.
The petitioners had also sought conservatory orders from the Environment and Land Court restraining the Kenya Forest Service (KFS) from evicting them from Mariashoni, Kiptunga, Songi and Tertit villages in eastern Mau.
They further applied for a declaration that members of the Ogiek community living in the said villages have the right to housing and to establish their homes within the area.
However, the court found that the orders sought were already the subject of previous petitions in which judgments had been rendered. In one such case, the court had directed the State to provide a permanent solution by settling the indigenous Ogiek community.
It was also noted that in another case, the African Court on Human and Peoples’ Rights, in May 2017, directed the government to permanently settle the community. The continental court sitting in Arusha had ordered Kenya to, among other measures, ensure the Ogiek’s access to their ancestral lands and to implement legislative and policy reforms to protect indigenous peoples’ land rights.
“This case involves the implementation of orders already granted. There would be no reason to file another case that merely adds to the ones that have not been implemented,” said Justice Millicent Odeny while dismissing the application.
“The best the petitioners can do is to follow up on implementation through the existing cases, alternative dispute resolution mechanisms, or judicial review to compel the State to implement the orders already granted. I therefore find that the petition lacks merit and is dismissed, with no order as to costs,” the court ruled.
The petitioners — Fredrick Kiplangat, David Barsaloi, Wilson Kisioi, Elijah Sitienei and Dickson Kibet — had argued that their cultural rights under Article 44 of the Constitution, as members of the Ogiek community, constitute a complex whole that includes a spiritual and physical association with their ancestral land.
The legal dispute over the settlement of the community dates back to October 2009, when the KFS issued an eviction notice requiring the Ogiek and other settlers in the Mau Forest to vacate the area.
The eviction was based on the grounds that the forest constitutes a reserved water catchment zone and forms part of government land.
The community, however, argued that the KFS action disregarded the significance of the Mau Forest to their survival and that they had not been consulted in the decision leading to their eviction.
They further contended that they have endured repeated eviction measures since the colonial era, which persisted after independence, and that the 2009 eviction notice was a continuation of the historical injustices inflicted on them.
They described themselves as an indigenous minority ethnic group in Kenya of about 20,000 people, approximately 15,000 of whom inhabit the greater Mau Forest Complex — a land mass of about 400,000 hectares spanning seven administrative sub-counties.
At the African Court, the case is now at the compliance hearing stage, where Kenya is being assessed on its progress in implementing policy and legislative reforms to protect indigenous land rights and in providing reparations.
The Ogiek consider the Mau Forest their ancestral home for centuries. They are one of the few remaining hunter-gatherer communities in East Africa, with a traditional way of life revolving around hunting, gathering and beekeeping.
