[2019] KEELC 5018 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 899 OF 2015

(FORMERLY HCCC NO. 127 OF 2010)

JOASH ONYANGO OKELO ……..…….…………......................... 1ST PLAINTIFF

PETER MWOSO O. OWANO...………………………....................2ND PLAINTIFF

MICHAEL OPES NYALUO…………………….…….................…3RD PLAINTIFF

JEREMIAH OSODO OSEWE………………….……….................4TH PLAINTIFF

MAURICE ODOGO ODERA…………….……….….....................5TH PLAINTIFF

SILVANUS OTIENO DAJO…………………………..................…6TH PLAINTIFF

DAVID OUMA ALOKA………………………………....................7TH PLAINTIFF

RICHARD AWITI OGIRA…………………….……..................…8TH PLAINTIFF

LUDIA ANYANGO ONYANGO………….…..…....…...................9TH PLAINTIFF

ROSELIDA OKAKA ADOGO…………………...…...................10TH PLAINTIFF

JOSHUA OCHIENG ADEE…………………………...................11TH PLAINTIFF

ROSEBELA AMOLO AUDI………………...………...................12TH PLAINTIFF

MOSES ONYANGO ODERA………………..………...................13TH PLAINTIFF

PETER OURU ANAM………………………..………..................14TH PLAINTIFF

GEORGE OCHIENG OKELLO…………...……........................15TH PLAINTIFF

PAUL OMBOK………………………………………....................16TH PLAINTIFF

MAURICE OKOTH OTIENO…………...…………...................17TH PLAINTIFF

CHARLES ADEM ADEM………………………...…..................18TH PLAINTIFF

NOAH JUMA OKELLO…………………………....…...............19TH PLAINTIFF

NICHOLAS OTIENO ONGOMBE……..…………...................20TH PLAINTIFF

ROSELIDA ALUOCH OPUNDO……….....………..............…..21ST PLAINTIFF

THOMAS OLUOCH MUOSO……………....…….....................22ND PLAINTIFF

HARUN ANAM OFINYO………………...………….................23RD PLAINTIFF

NELSON ONYANGO OMBOGO……….....……..............…....24TH PLAINTIFF

MARTIN ODI AWANDU…………….....…………....................25TH PLAINTIFF

HESBON OMONDI APIYO……….....……………...................26TH PLAINTIFF

JOHANA ATIENO AUMA………......……………....................27TH PLAINTIFF

FRANCIS OYUCHO OYUCHO……….......……......................28TH PLAINTIFF

GILBERT ONYANGO OLUOCH…….......…….......................29TH PLAINTIFF

PETER AJWALA OJOO………….......…………......................30TH PLAINTIFF

VITALIS ABWAO WAYUMBA………......………….................31ST PLAINTIFF

HELIDA MARENYA ATIENO……….....………….................32ND PLAINTIFF

NATHANIEL ONDEGO AJWANG….......………....................33RD PLAINTIFF

ISABELA OGUNDE OYUCHO……….......………..................34TH PLAINTIFF

GABRIEL OYUCHO………………….......……..............….....35TH PLAINTIFF

JOHN ORWA OMOLO………..........……………....................36TH PLAINTIFF

JACKOB OKOLA OGWEYO…......……………...….............37TH PLAINTIFF

THADEUS ORWA LWEYA………........…………..................38TH PLAINTIFF

SAMUEL OTIENO AYIEGA……………………...................39TH PLAINTIFF

MARIKUS ODHIAMBO MUOSO……………….............….40TH PLAINTIFF

ELLY AGUMBA OWANO………………………................…41ST PLAINTIFF

PETER OTIENO…………………………………...................42ND PLAINTIFF

CHARLES OMONDI OMWARE……………….............…..43RD PLAINTIFF

PAUL KIPINDA NDUNGA…………………….....................44TH PLAINTIFF

MOSES OLAL ONYANGO…………………….....................45TH PLAINTIFF

NICANOR OTIENO AUMA………………………...............46TH PLAINTIFF

ERICK OCHIENG NYABUAN………………......................47TH PLAINTIFF

TERESIA ONYANGO ALOO…………………..............…..48TH PLAINTIFF

AMOS OTIENO NYALUO……………………..............…...49TH PLAINTIFF

MANASES OKUKU AWUOR…………………....................50TH PLAINTIFF

JONATHAN ONGONGA AUMA……………..............….....51ST PLAINTIFF

KEN OCHIENG ONGONGA………………….....................52ND PLAINTIFF

BEN OMONDI OKELO………………………......................53RD PLAINTIFF

RISPER OCHIENG OSEWE………………….....................54TH PLAINTIFF

ALOICE OPIYO ACHIENG…………………….................55TH PLAINTIFF

GEORGE OTIENO OWANO…………………....................56TH PLAINTIFF

NAFTAL OWAK ONDIGO……………………...................57TH PLAINTIFF

GEORGE ODOK ALANDE………………......................…58TH PLAINTIFF

HEZEKIA ODHIAMBO AUMA………………..................59TH PLAINTIFF

CHRISTOPHER ONDULA OCHUNG………...................60TH PLAINTIFF

PAMELA ATIENO ODERA………………….................….61ST PLAINTIFF

AFLIN ADHIAMBO JUMA………………..............…...…62ND PLAINTIFF

ROSELYNE AUA OUMA………………….............……...63RD PLAINTIFF

MARIA ONDIGO…………………………….............…....64TH PLAINTIFF

JARED OUKO ONYANGO………………….............…...65TH PLAINTIFF

PETER ONYANGO ONYANGO……………..............…..66TH PLAINTIFF

SUSANA ADHIAMBO ODERA……………..............…...67TH PLAINTIFF

FREDRICK JUMA AWANDO……………….............…..68TH PLAINTIFF

EDWARD ODHIAMBO OKELO……………….....…….69TH PLAINTIFF

ZEDEKIA ONYANGO OPUNDO……………….....……70TH PLAINTIFF

VERSUS

KENYA WILDLIFE SERVICE.........................................1ST DEFENDANT

THE MINISTER OF FORESTRY & WILDLIFE……..2ND DEFENDANT

THE MINISTER OF LANDS AND SETTLEMENT…..3RD DEFENDANT

THE ATTORNEY GENERAL……………………….......4TH DEFENDANT

THE COUNTY COUNCIL OF KISUMU……........…….5TH DEFENDANT

THE NATIONAL LAND COMMISSION…….........……6TH DEFENDANT

JUDGEMENT

1. Joash Onyango Okelo and 69 Others, the Plaintiffs, filed this suit on their own behalf and on behalf of members of Ndere Island Farmers & Conservation Group, against Kenya Wildlife Service, The Minister of Forestry & Wildlife, The Minister of Lands & Settlement, The Attorney General, The County Council of Kisumu and The National Land Commission, the 1st to 6th Defendants respectively, through their plaint dated the 2nd August 2010, and amended on the 23rd October 2014, seeking for the following;

(a) “A declaration that actions of the actions (sic) or omissions of the 1st, 2nd and 3rd Defendant in taking possession of the Lands comprised in the Island and their occupation thereof are illegal, un-procedural, unconstitutional and fraudulent and in breach of international law.

(b) A declaration that the gazettement of the land comprised in the Island as Ndere Island National Park was irregular, illegal and unconstitutional.

(c) A declaration that the acts and omissions of the 5th Defendant constitute or constituted a breach of trust.

(d) A declaration that the 1st Defendant has acted in contravention of its undertaking to the Plaintiffs since taking possession of the lands comprised in the Island and an order directing the 5th Defendant to act to safeguard the Plaintiffs’ interests as required by the law.

(e) An order directing the 1st Defendant to furnish an account of the income it has earned from Ndere Island National Park since the time of its gazettment as a National Park.

(f) An order directing the physical and legal return to the Plaintiffs of all the lands comprised in the Island either directly or through the 5th Defendant.

(g) An order directing the 6th Defendant to facilitate and oversee the registration of the plaintiffs as proprietors of the suit property.

(h) In the alternative –

i) Payment of Compensation for the land seized at current market rates or otherwise in accordance with the applicable laws.

ii) Damages for trespass and mesne profits.

(i) Costs of the suit.”

2. The Plaintiffs among others, avers as follows;

· That they are members by descent and birth of the Seme clan who historically were at all material times either by themselves or those whom they customarily descend, resided in Ndere Island in Lake Victoria within the Jurisdiction of the 5th Defendant.

· That the Plaintiffs and those through whom they claim owned defined parcels of land under and in keeping with Luo Customary laws, demarcated by the community. That they had homes, practiced their customs, buried their dead, grew various crops, kept their livestock, engaged in fishing, used the Island as a docking area for their boats and shelter or refuge during bad weather in the lake.

· That sometimes in the 1978, the Plaintiffs permitted the 1st and 2nd Defendants to bring in animals, especially the Impala, which were roaming around Kisumu Town, to the upper part of the Island on the understanding that the Plaintiffs would continue occupying the lower part and that the 1st and 2nd Defendants would build hotels through which they would benefit in employment. That the Government would also pay royalties, improve infrastructure, set up schools, hospitals and undertake rural electrification among others.

· That though the 3rd Defendant had in 1982 advised the Plaintiffs and residents of neighbouring Islands to prepare for land adjudication, the exercise was not completed in the Island. That instead, the 3rd Defendant in cahoots with 1st and 2nd Defendants asked the Plaintiffs to remove their animals from the Island ostensibly to allow the adjudication process be completed with ease. That the Plaintiffs complied but continued to live on the Island co-existing with the animals that had been introduced.

· That in 1986, the 1st and 2nd Defendants violently, and at gun points, removed the Plaintiffs from the Island claiming that it had become a National Park. That the land was not compulsorily acquired as provided for by the Land Acquisition Act Chapter 295 of the Laws of Kenya as read with Section 75 of the Constitution.

· That there was no setting apart of the land under Sections 117 and 118 of the Constitution before the land was taken from them as no notice was given to the 5th Defendant who held it in trust for them. That the 5th Defendant did not give notice in the gazette as required by Section 7 of the Trust Land Act Chapter 298 of Laws of Kenya and that no compensation was assessed and deposited as required under Section 9 of the said Act. That any purported setting aside by the 5th Defendant under Section 117 (1) of the Constitution was illegal for failure of complying with Section 13 (2) of the Trust Lands Act Chapter 288 of Laws of Kenya.

· That the conduct of the 5th Defendant to allow the 1st to 3rd Defendants to forcibly enter into the land was a serious breach of trust and duty owed to the Plaintiffs by failing to have the adjudication completed, and Plaintiffs issued with titles for their portions of land.

· That the 1st Defendant has since taking over the Island completely shut the Plaintiffs from the land and failed to pay any form of compensation.

· That the Plaintiffs have since established that the 1st and 2nd Defendant caused the Island to be gazatted as a National Park in 1986 under L. N. No. 368 without consulting them which is gross contravention of the Wildlife (Conservation and Management) Act Chapter 376 of the Laws of Kenya and hence illegal, null and void.

· That the Defendants conduct constitute a deprivation of the Plaintiffs rights as enshrined in the Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights to which Kenya is a signatory.

3. The 1st Defendant opposed the Plaintiffs’ claim through their statement of defence filed on the 20th September 2010 among others, averring as follows;

· That the Plaintiffs are not members by descent and birth of the Seme clan and were not residents of Ndere Island at any time.

· That it was not involved in disinheriting the Plaintiffs.

· That there was no illegal, unconstitutional or fraudulent scheme against the Plaintiffs, and that it was not a party to remove the Plaintiffs domestic animals from the Island to give way for adjudication process.

· That the gazettement of the suit land as a National Park was legal, proper and legitimate for the National good and public interest.

· That the Plaintiffs voluntarily agreed to the surrender of the land.

· That the suit is statute barred.

4. The 5th Defendant also opposed the Plaintiffs’ case through their statement of defence filed on the 6th October 2010 averring as follows among others:-

· That it did not hold the suit land in trust for the Plaintiffs or that the suit lands were vested in them for the use and benefits of the Plaintiffs.

· That it did not owe the Plaintiffs any duty and trust when the 1st to 3rd Defendants forcibly entered onto the suit land.

· The 5th Defendant denies that the Plaintiffs had customary law rights that subsists todate over the suit land.

· They also denied that the Plaintiffs had suffered any damage or loss.

5. The 2nd to 4th and 6th Defendants did not file statements of defence. The 2nd to 4th Defendants participated in part of the hearing through their Counsel on record.

6. The hearing commenced on the 9th December 2013 when Moses Olal Onyango, the 45th Plaintiff, testified as PW1. Then followed Helinda Malenyo Atieno the 32nd Plaintiff, as PW2, Hesborn Omondi Opiyo, the 26th Plaintiff, as PW3 and Nicholas Otieno Ongombe, the 20th Plaintiff, as PW4. Peter Mwosu Ochieng the 2nd Plaintiff, testified as PW5. The testimony of PW1 was that he used to live on the lower part of the Island before it become infested with tsetse flies. That in the year 1982, adjudication was done and people were shown their portions of land. That wildlife was later introduced on the Island without consulting the people or compensating them. That the people were removed from the Island without benefiting from the wildlife. PW2 testified that she was married in Seme and moved out of the Island in 1986. She told the court that she knows the boundaries of their land. PW3 told the court that the Island was their ancestral land and that they used to cultivate on it before they were moved out. That adjudication of the land on the Island has not been done, and that they are not allowed back onto the Island except as paying visitors. PW4 told the court that the people living on the Island agreed to leave after the then Minister of Wildlife requested them to do so, and promised them employment, hospital, electricity and other facilities. That later on, the people were evicted form the Island without being consulted. PW5 is the secretary of Ndere Island Farmers and Conservation Croup. He produced the certificate for the group’s registration. He testified that from the 1982, the residents of the Island co-existed with the wild animals until 1986, when the 1st Defendant demanded that the people leave as the Island had been gazetted as a National park. That the residents were forcefully removed without compensation. He produced copies of letters they had done to various authorities seeking for assistance without getting any. He told of a delegation that was led by the late Ndolo Ayah to the then President. That the President advised them to take the matter up with the 5th Defendant so that the land could be adjudicated and registered with the residents, but nothing happened after that, as the 1st Defendant had already taken over the Island.

7. The defence case commenced on the 15th May 2017 with Amos Otieno Nyaoro, a Senior Sergent with the 1st Defendant, testifying as DW1. He produced the copy of the L.N. No. 3552 of 7th July 1987 under which Ndere Island was, after consultation with the 5th Defendant was set apart, for Ndere Island Game Park, as exhibit. He also produced copies of letters dated 4th March 1985, 7th January 1985, 11th February 1993 and 18th February 1986 on the engagement with the various authorities over the Island. DW1 also produced L. N. No. 368 of 3rd November 1986 declaring Ndere Island a National Park. That he also produced letters dated 22nd May 1992, G.N. No. 1936 dated 21st May 1992, letters dated 26th May 1992 and the 20th November 1992 on the intention to degazetted the Island as a National Park and the decision to retain it as such. The witness also produced a map of the Island and copy of a letter of allotment under reference No. 83697/60 dated 2nd June 2011 allotting “L.R. No. 28036 – Ndere National Park – Kisumu” to the Kenya Wildlife Service. The allotment letter shows the land is 408. 17 hectares and the term of the lease is 99 years from 1st March 2001. DW1 testified that the setting apart of the Island was legally done and the 1st Defendant does not owe the Plaintiffs any compensation. He added that the people have benefited from employment opportunities and other social amenities.

8. The learned Counsel for the Plaintiffs, 1st and 5th Defendants filed written submissions dated 3rd October 2017, 2nd November 2018 and 30th May 2018 respectively. The Counsel for the Plaintiffs then filed a reply to the 1st and 5th Defendants’ submission dated the 4th December 2018. The following is a summary of the said submissions;

PLAINTIFFS SUBMISSIONS;

· That there was no notice given to the 5th Defendant that Ndere Island was to be set aside and that the 5th Defendant did not give notice or cause such notice to be published in the Kenya Gazatte. That no compensation was assessed and deposited prior to setting aside and therefore the process did not comply with the law and hence was illegal.

· That the gazattement of Ndere Island as a National Park was done without consulting the plaintiffs and was hence illegal and should be reversed.

· That their chronology of events and facts are not challenged as the 2nd, 3rd and 6th Defendants chose not to participate in these proceedings.

· That the Island was set apart without considering that it was trust land vested on the 5th Defendant for the benefit of the Plaintiffs who were subsequently violently evicted from their ancestral land.

· The learned Counsel cited the case of Funzi Island Development Limited & Others vs County Council of Kwale & Others [2014] IEA 183 where the Court of Appeal pronounced itself on the issue of setting aside of trust land. The court in that case observed that the land subject matter of that case was “…not trust land. It was, and still is, partly forest land and partly beach land not available for alienation” to the Assistant Minister and later to the third respondent which allocation was found to be fraudulent. The Court further observed that a registered proprietor’s title to an allocated land is only absolute and indefeasible if the allocation was legal and regular.

· The Counsel also referred to the case of John Muruge Mbogo vs Chief of Kenya Defence Forces & Another [2018] eKLR on the issue of limitation where the court held that there was no provision in the Constitution or any other law prescribing the period within which to file a claim challenging violation of one’s constitutional and human rights.

· The learned Counsel also referred to several other decided cases, The Universal Declaration of Human Rights, The Banjul Charter, The Native Lands Trust Ordinanceand The African Commission Complaint No. 276 of 2003.

1ST DEFENDANT’S SUBMISSIONS;

· That the suit was time barred. The learned counsel cited the decision in Kenya Orient Insurance Ltd vs Senenarro Ole Kurraro & 7 Others Kajiado [2016] eKLR.

· That the Island was lawfully made a National Park and the Plaintiffs do not have the locus standi to file this suit.

5TH DEFENDANT’S SUBMISSIONS;

· That the suit was time barred under Section 7 of the Limitation of Actions Act.

· That the Plaintiffs have failed to proof ownership of the suit land as no documentary evidence was availed.

· That the Plaintiffs have not fulfilled the requirements of Article 63 of the Constitution for a claim on Community Land which requires identification of communities in terms of ethnicity, culture or similar community interests for a finding in their favour to be made.

· That the Ndere Island had not been declared Community land through statute and referred to the case of Statrose Ayama & 11 Others vs Barclays Staff Retirement Scheme Petition No. 63 of 2010 Nairobi.

· The Learned Counsel cited the case of William Gatuhi Murathe vs Gakuru Gathimbi [1998] eKLR among others and submitted that the suit was filed after 32 years, and hence time barred, as causes of action based on contract should be filed within six (6) years under Section 4 (1) of the Limitation of Actions Act.

9. The following are the issues for the Court’s determinations;

a) Whether the Plaintiffs have adduced sufficient evidence to be entitled to the declaratory orders/prayers sought.

b) Whether the Plaintiffs have adduced sufficient evidence to fault the setting apart and gazetting of the Island as a National Park.

c) Whether Plaintiffs are entitled to any compensation.

d) Whether the Plaintiffs’ suit is statute time barred.

e) Whether the Plaintiffs are entitled to general damages, mesne profits and if so, how much

10. The court has carefully considered the pleadings filed by the Plaintiffs, 1st and 5th Defendants, oral and documentary evidence by PW1 to PW5 and DW1, written submissions by Counsel for the Plaintiffs, 1st and 5th Defendants, plus the decided cases and provisions of the law cited therein, and come to the following findings;

a) That from the totality of the evidence of PW1 to PW5, the residents of the Ndere Island were engaged and aware of the discussions taking place from 1978 leading to the introduction of wild animals onto the upper part of the Island. That it was because of the said awareness and engagement that they readily agreed to the introduction of the animals on the upper parts and to co-exist them for a number of years up to 1986 when they left the Island.

b) That the evidence adduced by the Plaintiffs through PW1 to PW5, leads the court to the finding that the residents of the Ndere Island were only asked to leave the Island after it was set apart and gazetted as a National Park. That by that time, some of the people had already left for the main land and only those who had not heeded the directive were forcefully moved out.

c) That the evidence adduced by the PW1 to PW5, and DW1, confirms that Ndere Island was trust land vested in the 5th Defendant until it was set apart through Gazette Notice No. 3552 of 31st July 1987 by the then Commissioner of Land. That the schedule for setting apart the Island that is attached gives the purpose as “Ndere Island Game Park.” That there is no evidence availed before this court that the setting apart was ever legally challenged through judicial review proceedings by the Plaintiffs, the 5th Defendant or any other person.

d) That before the setting apart of the Ndere Island as in (c) above, the land had not been adjudicated or registered but had been gazetted as a National Park vide L.N. No. 368 of 3rd November 1986, after consultation with the 5th Defendant. That after the setting apart in 1987, there was concerted effort to have the gazettement reversed as confirmed by PW5, who told of a delegation led by the late Ndolo Ayah to the then President in 1992, and the letters dated 22nd May 1992, 26th May 1992, 25th June 1992, 18th June 1992 and 20th November 1992 to and from the various offices. That the last letter contains the position or decision of the Ministry of Tourism and Wildlife that-

1. “That the National Park will not be degazetted as had earlier been intended.

2. That as had been the historical tradition, the people near the National Park should be allowed to continue collecting grass for thatching their houses. This should be done on a controlled basis.

3. That the fishermen should be allowed to continue with their trade as before.

4. That as a temporary arrangement, you withdraw your men from the National Park and then allow the Provincial Administration to look after the National Park on your behalf ensuring that no people will settle on it. The men you withdraw from this National Park may be posted to areas where their services are more urgently required.”

That from the foregoing, and considering that there is no documentary evidence availed by the Plaintiffs to confirm their claim that they had been promised employment, infrastructural developments or that their land would be given back, the court finds the setting apart gazettement of the Island as a National Park had been a final decision which todate has also not been legally challenged through Judicial review by the Plaintiffs, 5th Defendant or any other person.

e) That the letter dated 11th February 1993 by the District Warden, Kisumu District to the District Land Adjudication Officer, Kisumu under the reference “Adjudication of Ndere Island “at paragraph 2 referred to “Council (Min. 13/83 of 2nd November 1983)” under which Ndere Island was set aside (apart). That even though the said minute was not availed to the court, it is obvious that the 5th Defendant as the entity vested with the land in dispute before the setting apart has never challenged the gazette notices No. 3552 of 31st July 1987 and 368 of 3rd November 1986. The foregoing plus the contents of the letters dated 4th March 1985 by the Parks superintendent to the Game Warden about monthly visits and the one dated 18th February 1986 by the District Warden, Kisumu to Councilor Jeckonia Awundu Ongong’a referring to the councillor’s letter dated the 29th October 1985, leads the court to further conclude that there was sufficient consultation before the setting apart and gazettement of Ndere Island as a National Park contrary to the Plaintiffs’ claim. That the letter dated the 18th February 1986 confirms what the people, who the court takes to have included the Plaintiffs or those that they trace their ancestry to, were seeking at that time, and that was compensation. That from the testimony of PW1 to PW5 and DW1, it appears no compensation was ever agreed or paid. The fact that only compensation was being pursued in 1985/1986 leads the court to conclude that the setting apart of the Island, and gazettement of a National Park was not being challenged then. That the challenge mounted by the Plaintiffs through this suit against the setting apart and gazettement is obviously coming outside the period prescribed by Sections 4 and 7 of the Limitations of Actions Act Chapter 22 of Laws of Kenya. That as the suit was filed in 2010 challenging the setting apart and gazettement done in 1986 and 1987, the suit is therefore statute time barred.

f) That whereas the Plaintiffs, as members of the Seme clan, had communal rights over the Ndere Island for the period it was vested in the 5th Defendant in trust, that right was extinguished or ended when the land was set apart through the gazette notice of 1987. The court of Appeal in Citson Energy Limited vs Francis Chachu Ganya & 6 Others [2017] eKLR held as follows on the effect of setting apart of trust land;

“[23] By Section 117 (2) of the repealed Constitution the setting apart of land by Council extinguished the rights, interest, or other benefits previously vested in the community as Section 117 (3) provided that the Council could thereafter make grants or dispositions of any estate interest or right to any person or authority for whose use and occupation it was set apart. The Gazette Notice issued under Section 13 (3) of TLA of the repealed Constitution after the approval by Council of the proposal to set apart land was the final step in the mandatory statutory process of setting apart trust land. The implementation of the setting apart would follow by execution of lease and the grant of lease. The issuance of gazette notice had legal consequences. By Section 69 of the Interpretation and General Provisions Actand by Section 85 of the Evidence Act, the copy of the notice published in the Gazette is prima facie evidence in all courts and for all purposes whatsoever of the making and tenor of such notice. It is prima facie evidence that the Council had legally set apart the specified Trust Land for use and occupation of Gitson with the result that the previous rights of Bubisa Community were extinguished from the date of the notice.”

That on the same issue of setting apart of Trust Land, the Report of the Commission of Inquiry [The Ndungu Report] into the illegal/irregular (Allocation) of public land at page 52 under the heading of “Trust Land” observed as follows;

“The only way in which Trust land can be legally removed from the communal ownership of the people is through adjudication and registration or setting apart. Adjudication and registration removes the particular lands from the purview of community ownership and places them under individual ownership. Setting apart removes the Trust Lands from the dominion of community ownership and places them under the dominion of public ownership.”

That the lands comprised of Ndere Island, the suit land, having been set apart in 1987 was hence removed from the Plaintiffs community’s purview, and any resident of the said land who claimed to have been entitled to compensation under Section 8 of the Trust Lands Act was required to apply for the same to the District Commissioner, who after consultation with the Divisional Board, was to make an award if satisfied or reject it. That there is no evidence tendered whether the Plaintiffs herein or those they represent lodged any claims as required at that time and it is too late now to lodge any such claim in view of the Limitation of Actions Act provisions. That had the Plaintiffs pursued their claim through a constitutional petition, the provisions of Limitation of Actions Act would not possibly have caught up with them in view of the finding in John Muruge Mbogo vs Chief of the Defence Forces & Another [2018] eKLR at page 68.

g) That the Plaintiffs applied for, and obtained leave of the court to bring this suit on their own behalf and on behalf of others through the application dated 2nd August 2010 that was on the 19th June 2013 allowed and an order issued on the 2nd August 2013. The submission by the Defence that the Plaintiffs are without locus standi in this suit therefore fails.

h) That on the prayers of damages for trespass and mesne profits, the court having found that the community rights and interests over Ndere Island was extinguished after the land was set apart for the 1st Defendant, with the consent of the 5th Defendant who held it in trust for them cannot be sustained. The 1st Defendant has since received an allotment letter dated the 2nd June 2011 after adjudication, and cannot be a trespasser on the suit land or be liable for any damages. That even though the Plaintiffs did not quantify and plead the mesne profits in their plaint and amended plaint as required of special damages, that claim is not available to them as their rights and interests over the suit land was extinguished upon the land being set apart and gazetted for 1st Defendant in 1986 and 1987.

i) That though the court finds that the Plaintiffs claim fails for among others, statute time barred, and though under Section 27 of Civil Procedure Act Chapter 21 of Laws of Kenya, the 1st and 5th Defendants would be entitled to costs, the court is of the view that this is a proper case where each party should meet their own costs so as to hopefully bring closure to this matter.

11. That from the foregoing, the court finds that the Plaintiffs have failed to prove their case against the Defendants to the standard required by the law. The Plaintiffs’ claim is therefore dismissed with an order that each party do meet their own costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 13TH DAY OF MARCH 2019

In the presence of:

Plaintiffs 5TH & 40TH present

Defendants Absent

Counsel Mr. Otieno D and Mr. Yogo for the

Plaintiffs and 5th Defendant respectively.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE