Francis Kemai and others (Applicants) v. The Attorney General and others (Respondents) Pays/Territoire Kenya Type de cour Nationale - cour supérieure Date Mar 23, 2000 Source UNEP, InforMEA Nom du tribunal High Court of Kenya at Nairobi Juge Oguk, S., O.Kuloba, R. Numéro de référence Civil Case No. 238 of 1999 (OS) Langue Anglais Sujet Espèces sauvages et écosystèmes, Forêts Mot clé Patrimoine culturel Mesures de protection des forêts Expropriation Droits de l'homme Gestion forestière/conservation des forêts Résumé In this suit instituted by way of an originating summons, the 5,000 members of the Ogiek ethnic community, ten of whom were expressly imploded as plaintiffs representing themselves and the rest of the others, had moved the court to make the following two declarations and orders: (a) a declaration that their eviction from Tinet Forest by the Government (acting by the provincial administration) contravened their rights to the protection of the law, not to be discriminated against, and to reside in any part of Kenya; (b) a declaration that their right to life had been contravened by the forcible eviction from the Tinet Forest; (c) an order that the Government herein represented by the Attorney-general, was to compensate the plaintiffs; and (d) an order that the defendants were to pay the costs of this suit. The plaintiffs sought these declarations and orders on the basis of their pleaded averments that they had been living in Tinet Forest since time immemorial (counting the time their community began living in the area), and yet after virtually daily harassments by the defendants, the plaintiffs were now ordered to vacate the forest which had been the home of their ancestors before the birth of this Nation. The applicants stated that they depended, for their livelihood, on this forest, they being food gatherers, hunters, peasant farmers, bee-keepers, and their culture was associated with this forest where they had their residential houses. Their culture was basically one concerned with the preservation of nature so as to sustain their livelihood. Because of their attachment to the forest, the members of this community had been a source of the preservation of the natural environment; they had never been a threat to the natural environment, and they could never interfere with it, except in so far as it was necessary to build schools, provincial Government administrative centers, trading centers, and houses of worship. According to the respondents, the applicants and the 5000 persons they represented were not the genuine members of the Ogiek community, and they had not been living in Tinet Forest since time Immemorial. The respondents stated that the Government realized that the part of Tinet Forest which was intended to be degazetted for settling “the applicants” was a water catchment area, and the Government shelved the settlement plan. The district commissioner for the District under which the Tinet Forest fell stated that he gave notice to the applicants to vacate the area because the applicants had entered and settled unlawfully. The court decided that the applicants did not necessarily have to own the forest to hunt in it, collect honey and cultivate game. The applicants could obtain permits and licenses to enter the forest and engage in some permissible and permitted life-supporting economic activity there. With regard to the alleged discrimination the court held that evidence on these matters had to be provided by the person alleging discriminatory action against him. The appellants had not provided such evidence. The eviction was for the purposes of saving the whole Kenya from a possible environmental disaster, it was being carried out of the common good within statutory powers; it was aimed at persons who had made home in the forest and were exploiting its resources without following the statutory requirements, and in a way that could be inimical to forest conservation. If any schools, churches, market places had been developed, they were incompatible with the purposes for which national forest were preserved. The court dismissed all the prayers sought. Texte intégral Nation.Deci._Vol_3=prelims.pdf Disponible en UNEP/UNDP/Dutch Government Joint Project on Environmental Law and Institutions in Africa, Compendium of Judicial Decisions on Matters related to Environment, National Decisions, Volume III, Page 238