Proposal_Calvin_Kirui[1]-1.docx

KENYATTA UNIVERSITY
SCHOOL OF LAW, ARTS, AND SOCIAL SCIENCES
DEPARTMENT OF PUBLIC POLICY AND ADMINISTRATION
PROPOSAL
ENVIRONMENTAL MANAGEMENT VIS A VIS PROPERTY RIGHTS; A CASE
STUDY OF ENCROACHMENT AND EVICTIONS FROM THE MAU FOREST
COMPLEX IN KENYA.
KIRUI KIPRONO CALVIN
C153/CTY/OL/20347/2022
A Research Proposal Submitted to The School of Law, Arts and Social Sciences in Partial
Fulfillment of Requirement for The Award of The Degree of Master of Arts in Public Policy and
Administration of Kenyatta University
2022

i
Declaration
I, Kirui K. Calvin, declare that the research presented herein is my original work that has not
been presented in any other Institution of Higher Learning for the award of a degree.
Name: Kirui K. Calvin
Signature:
Date: 20th
December, 2022.
Supervisor:
This research project has been submitted for examination with my approval as university
supervisor.
Name: Dr. Weldon Kibet Ng’eno
Signature -
Date
Department of Public Policy and Administration

ii
Dedication
To my dear wife, Eva Cheptoo, our son Danvin Kiplang’at Rono and our parents Dr. Jackson
Lang’at and Angeline Chebet Maiywa for their prayers, constant support and encouragement
during my studies.

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Acknowledgment
I sincerely thank God for enabling me to accomplish my work. My gratitude goes to my lecturer
for his teachings and guidance that helped me stay focused from the beginning of the course to
the end. My utmost gratefulness also goes to my colleagues, friends, classmates, and family,
whose friendship and support in various aspects have helped me accomplish this research.

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Abstract
Forest covers significantly contributes to the environmental conservation. However, in the recent
times, there has been a decline in the forest cover globally. This has instigated concerns among
nations and environmentalists and efforts have been taken by different countries towards
reducing the deforestation and restoration of the forest covers. Different efforts have been
employed by different nations and some of them include forest evictions. In Kenya, communities
and individuals that have encroached into the forest covers have evicted. Such forests in which
rampant evictions have occurred in Kenya is the Mau forest complex.
The specific objectives of this research ate to assess the balance between the need for
environmental conservation and the state’s fundamental duty to protect its citizens’ rights and
analyze the legal and policy framework for environmental management in Kenya. It will also
focus on the effects of eviction on the communities’ livelihoods, whether the evictions have had
the intended environmental impacts of forest restoration and the challenges facing the displaced
communities.
It has been well documented by various national and international rights-based organizations that
the evictions at Mau Forest have not followed the laid down procedures, laws, and policies. The
government has twice sought to cancel title deeds to individuals alleged to have obtained them
illegally. In some areas, the court has imposed a caveat on the properties, depriving the people
living on the said properties of their full enjoyment of their property rights. Due to historical
encroachment and excision of the Mau Forest land coverage, there is also the question of unclear
boundaries of the forest cover. Different government regimes have sought to demarcate a clear
forest boundary, each different from the other. As such, the affected communities have faced

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want on the loss of properties, sources of income, shelter, and livelihoods and have been
rendered homeless. The evictions have even gone to the extent of causing death to the affected.
The government has not sought to mitigate evictions’ effects by protecting human rights. There
is no tacit resettlement plan, even for the victims who had title deeds and legitimate expectations
of property rights. On environmental impacts the evictions have caused positive environmental
impacts on a section of the Mau Forest. In other areas, evictions have not met the intended
purpose, and in some instances, the evicted communities have resorted back to their properties
and continued with their livelihoods. This study is based on the notion that the protection of the
forest and the protection of human rights are not mutually exclusive. The two aims can be
achieved and satisfied simultaneously. The study seeks to analyze the effects of the evictions in
Mau Forest on the property rights of the affected persons and communities and whether the
evictions have had the intended effect of restoring the forest cover.

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TABLE OF CONTENT
Declaration....................................................................................................................................... i
Dedication.......................................................................................................................................ii
Acknowledgment ...........................................................................................................................iii
Abstract.......................................................................................................................................... iv
TABLE OF CONTENT................................................................................................................. vi
CHAPTER ONE............................................................................................................................. 1
1.0. Introduction.............................................................................................................................. 1
1.1. Background to the study................................................................................................... 1
1.2. Statement of the Problem................................................................................................. 4
1.3. Objectives of the study......................................................................................................... 6
1.4. Research Questions .......................................................................................................... 6
1.5. Justification and Significance ......................................................................................... 6
1.5.1. Justification.................................................................................................................... 6
1.5.2. Significance ................................................................................................................... 7
1.6. Scope and Limitations...................................................................................................... 7
1.6.1.Scope .............................................................................................................................. 7
1.6.2. Limitations..................................................................................................................... 8
CHAPTER TWO .......................................................................................................................... 10
2.0. Literature Review................................................................................................................... 10
2.1. Introduction........................................................................................................................ 10
2.2 Empirical review................................................................................................................. 10
2.2.1 Environmental management......................................................................................... 10
2.2.2 Forced Evictions and Displacement. ............................................................................ 13
2.2.3 Legal and policy framework of Eviction in Kenya. ..................................................... 14
2.2.4. Impact of Evictions on property rights........................................................................ 17
2.2.5 Socio-economic impacts of Evictions. ......................................................................... 18
2.2.6 Environmental impacts of displacement....................................................................... 20
2.2.7 Community inclusion in the conservation of the Mau Forest complex........................ 21

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2.3 Theoretical framework........................................................................................................ 21
2.3.1 Social Justice and Forced Displacements..................................................................... 23
2.3.2 Landlessness ................................................................................................................. 18
2.3.3 Joblessness.................................................................................................................... 19
2.3.4 Homelessness................................................................................................................ 19
2.3.5 Marginalization............................................................................................................. 19
2.3.6 Increased Morbidity and Mortality............................................................................... 20
2.4 Conceptual framework........................................................................................................ 24
CHAPTER THREE ...................................................................................................................... 25
Research Design and Methodology .............................................................................................. 25
3.0 Introduction......................................................................................................................... 25
3.1 Research Design.................................................................................................................. 26
3.2 Sampling Frame .................................................................................................................. 26
3.3 Sampling techniques and sample size................................................................................. 26
3.4 Sources of Data ................................................................................................................... 27
3.5 Data collection instruments................................................................................................. 27
3.5.1 Questionnaire................................................................................................................ 27
3.5.2 Focus Group Discussions (FGDs) ................................................................................ 27
3.6 Methods of data analysis and presentation ......................................................................... 28
3.7 Ethical Considerations ........................................................................................................ 28
References..................................................................................................................................... 29

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CHAPTER ONE
1.0. Introduction
1.1. Background to the study
The world has over 4 billion hectares (ha) of forest area, an estimated 30 percent of the
total land mass. Despite the fact that forests are not equally distributed across the world, the
tropical domain has the most significant proportion of the world’s forests, followed by the
boreal, temperate and subtropical domains (Xiao et al.,2022). The world has lost 178 million ha
of forest since 1990. From the year 1990t0 2020, effort aimed at reducing the rate of
deforestation were given significance and this saw the reduction of deforestation and increase in
the forest areas through afforestation and natural expansion and replenishing of forests. These
efforts led to the net forest loss decline from 7.8 million ha per year in the decade 1990–2000 to
5.2 million ha per year in 2000–2010 and 4.7 million ha per year in 2010–2020.
According to Rotich and Ojwang (2021) the forest cover assessment in Kenya, conducted
in 2013, established that by 2010 the national forest cover stood at 4.18 million Ha, representing
6.99% of the total land area. In 2015, the forest cover was estimated to be at 7.2% based on the
national projection from the 2010 forest cover data. This data shows that the forest cover in
Kenya is below the recommended minimum global standard of 10 percent.
The largest block of forest cover in Kenya is the Mau Forest complex which measures
approximately 400,000 hectares. Mau Forest is a natural rain forest that forms an important water
catchment area. It is the source of 14 significant rivers and many streams that are depended on by
over 5 million people and millions of domestic and wild animals in Kenya depend on the Mau
for water (Albertazzi et al., 2018).

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Mau forest is managed by five local authorities which are Nakuru, Koibatek, Kericho,
Bomet, and Narok county councils. However, the Ogiek community are the indeginous
inhabitants who also coined the name “Mau” which is a derivative of “Moou” which means “the
coolest of the coolest place.” Over a long time, the Mau Forest has been exponentially declining.
This is mainly attributed to human activities and majorly deforestation, excision by the
government, human encroachment, and logging.
Logging in the Mau Forest has been caused by forest excisions. The government has
periodically excised and degazetted huge pieces of land from the forest land to settle the landless.
This reason has been mooted as a pretense for the government to award huge pieces of land to
the influential, well-connected individuals and politicians. Under the repealed Forest
Act(Repealed in 2005), all forests belonged to the state. Management of the forests was by the
Forest Department on behalf of the state. As a result, the Forest Department faced rampant forest
mismanagement (Cuaresma et al.,2017). Huge pieces of forest land were oftenly excised for
flimsy reasons.
During colonial period and even after independence, huge pieces of the Mau Forest land
were deforested and cleared to establish tea plantations. This resulted in the largest tea-growing
areas in Kenya being found within the forest. From 1973 to 2003, 36,780 ha of Mau forest land
were lost in the Eastern Mau Forest. In 2001, the government excised over 67,000 ha for logging
and to settle agricultural communities. In Trans Mara area where, through Gazette Notice of 3rd
March 1989, 937.7 ha were excised for timber and tea plantations. The gazette notice was not
accompanied by a legal notice - a mandatory requirement.

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From 1996 to 2003, over 30% of the Maasai Mau forest was lost to logging and
agricultural activities (Kweyu et al., 2019). Maasai Mau measures approximately 46,278 ha.
Despite its national importance, many portions of the Mau Forest Complex have been deforested
or degraded. Much of this damage has taken place in the past few decades. Excision of forest
reserves and continuous widespread encroachment has led to the destruction of over 100 000 ha
of forest since 2000, representing roughly one-quarter of the Mau Complex area.
Upon excision, the government subdivided the lands and issued title deeds to individuals
and communities living in the Mau Forest. In the western Mau, the government issued title deeds
to the Maasai indigenous communities under the Narok county council. It included parts of the
now Narok South, Bomet east, and Konoin constituencies. In the Eastern Mau, the government
issued title deeds to individuals living in the Kuresoi-south, Molo, and Njoro constituencies. In
2005, the government under the Kibaki regime set out to rehabilitate the Mau Forest complex.
The government sought to reclaim lands that had been illegally excised and conduct
afforestation. As a result, families, and communities were evicted from the Mau Forest complex,
specifically from parts of Narok South and Kuresoi constituencies. Further, the ogiek community
sued the government in the east African court of justice, claiming to be the indigenous owners of
land comprising the now Tinet ward in Kuresoi south constituency and parts of Njoro
constituency. In a judgment, the court placed a caveat over the title deeds of the concerned lands.
The government has committed several evictions to reclaim more of the Mau Forest. This
is even though some of the persons living in the affected properties had legitimate title deeds
issued by the government. In 2018, the government issued a notice through the dailies of the
intention to cancel several title deeds affecting properties satiated in Narok south constituency.
The notice, however, did not give reasons for the cancellation of the titles, and the government

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did not intend to compensate or resettle the affected people. It is not in doubt that the
encroachment has been wanton, with some having title deeds while others do not. However,
some of the settlers were issued legitimate title deeds by the same government seeking to evict
them.
The evictions have been interpreted by the communities living in the Mau Forest
complex and a section of the political leaders to be politically instigated. The government has
spent money developing the affected areas by building schools, hospitals, roads, and other social
amenities but evicting the settlers. The caveat on the properties in Kuresoi-south constituency
has also not been resolved. The owners of these properties can, therefore, not transact legally on
their properties, despite having legal ownership. This impedes their property rights. Moreover,
during the recent drought in 2009 and 2019, the Mara River and other rivers in the Mau basin
dried up completely. This trend has raised a question about local communities’ role in managing
Mau Forest. The environmental importance of the Mau Forest complex is, therefore, undoubted.
1.2. Statement of the Problem
This study aims to analyze the governing laws and find the gap in the proper
environmental management of the Mau Forest complex. It also analyses the property rights(if
any) of persons who legitimately and illegitimately encroached into the Mau Forest complex.
The analysis of the environmental impact of the encroachment as juxtaposed with the property
rights of the communities living in and around the Mau Forest complex was necessitated by the
infinite imposition of the caveat of some sections of the lands, frequency of unending evictions,
improper cancellation of title deeds without any repartitions on the victims and government’s
lack of political will to solve the Mau Forest complex issue conclusively.

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This study is premised on the Bill of Rights in the Constitution of Kenya, specifically
Articles 40 and 42. Article 40 of the constitution provides that; Every person has a right, either
individually or in association with others, to acquire and own property (a) of any description; and
(b) in any part of Kenya. Article 42 Provides that; Every person has a right to a clean and healthy
environment, including the right to have the environment protected for the benefit of the present
and future generations through legislative and other measures. Various articles, task force
reports, and studies have been conducted on managing and conserving forests in significant
ecosystems, including Mau Forest, Mount Kenya, and other forests. For instance, in 2010,
Wamae conducted a study on the impacts of CFA in Managing Kenyan forests. The research was
premised on the Kenyan constitutional provision on Participatory Forest management (PFM).
Kweyu et al. (2019)examined surrounding communities’ perceptions of forest management in
the Kakamega forest. They affirmed that community involvement helps to change society’s
attitude toward managing forests, thus enhancing efficiency in managing natural resources.
A study by Kinyili (2014) on the PFM approach in Olbolossat established that
community participation is imperative in promoting sustainable forest management. Likewise,
Additionally, community participation is an effective strategy for transforming knowledge and
addressing environmental challenges in his study on community involvement in managing the
Kimothon forest. All these studies illustrate that community participation is paramount in
enhancing forest conservation and management efforts and promoting sustainable forest
management. However, none of the studies had looked at the persistent issue of the Mau Forest
complex through the spectrum of balancing the property rights of the communities and
individuals living in and around Mau Forest with the environmental rights of all and sundry.

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1.3. Objectives of the study
They included;
i. To establish the legal framework and policies governing the management of forests in
Kenya and the historical chronology of encroachment into the Mau Forest complex.
ii. To determine the property rights of the persons and communities living in and around the
Mau Forest complex.
iii. To examine the environmental impact of the encroachment into the Mau Forest complex.
iv. To identify gaps and possible solutions to the management of Mau Forest Complex.
1.4. Research Questions
Based on the research problem, questions that guided the study included;
i. What are the effects of including prominent policy actors in the management of Mau?
ii. What are the effects of information sharing with prominent policy actors in the
management of Mau Forest? iii. What are the effects of consultative forums with prominent
policy actors in the management of Mau Forest?
1.5. Justification and Significance
1.5.1. Justification
According to Human Rights Watch (2020), at least 40 percent of Mau Forest cover has
been depleted by deforestation and encroachment by more than 50,000 people. In addition, it has
resulted in frequent droughts in Kenya and trying up essential rivers like the Mara River, coupled
with frequent forest fires and constant eviction of neighboring communities. It is a general
feeling that the efforts made by the government in the conservation of the Mau forest have not

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borne the intended results. Therefore, it is imperative to ascertain the current legal framework
governing the management of forest covers in Kenya, the effects of the evictions on the affected
communities’ rights, the socio-economic impacts and the environmental conservation effects of
the evictions.
1.5.2. Significance
The findings of this study form a vital addition to the available literature on the
conservation of the environment, especially forests. The study shall also analysis the balance
between the environmental conservation efforts and the solemn state’s role in protection of
human rights, especially the right to property. The study also aimed at providing relevant
information to the government of Kenya and all other stakeholders engaged in managing natural
resources in Kenya. The survey findings could be vital in providing a clear basis for how and
why society should be included in managing and conserving the forests and other common pool
resources.
1.6. Scope and Limitations
1.6.1.Scope
The study examines the balance between environmental conservation and property rights
in Kenya. The study has tried to evaluate the historical underpinning of the environmental
challenges facing Mau Forest, efforts made to restore the forest cover, legal and policy
framework governing environmental conservation and the impact of evictions on the affected
communities. In that regard, the study shall focused on the property rights of the affected
communities, how those rights were gained, the socio-economic impact of evictions and shall
evaluate whether the evictions have attained the intended aim of forest restoration.

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All stakeholders tasked with managing Mau Forest, including the local communities,
representatives of local communities, government officials directly involved, and CBO officials
shall be consulted in the study to derive a clear picture of the effects of the evictions in the
managing of Mau Forest. The survey shall be conducted in the Eastern Mau forest section of
Kuresoi South, Molo and Njoro constituencies and Maasai Mau section of Mau Forest in Narok
County. Questionnaires and interview schedules shall be employed to gather data from
community members within and around the forest, CFA members, and the Kenya forest officials
at Maasai Mau forest and the county government and national level.
1.6.2. Limitations
Similar to other studies, the study was bound to face several limitations. For example, a
segment of the respondents may not have provided first-hand information due to personal
reasons, thus posing a challenge to the findings. Other limitations include financial constraints,
poor road networks, language barriers, and poor accessibility. However, some challenges shall be
mitigated by obtaining supportive documents such as an introduction letter from the University,
NACOSTI, and local authorities to ascertain that the study is mainly for academic reasons. In
addition, establishing a local contact person shall assist in terms of accessibility in the area
during the data collection process. This shall also mitigate the language barrier challenge. In the
same breath, the study shall be contacted with a very high level of confidentiality, adhering to the
set code of conduct and other ethical principles for carrying out research.

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CHAPTER TWO
2.0. Literature Review
2.1. Introduction
This chapter looks at empirical studies related to the environmental management laws
and policies in Kenya and how the said laws and policies had been applied and implemented,
particularly in the Mau Forest complex. It focuses on the efforts to restore and conserve the Mau
Forest, particularly the eviction of communities. It deliberates the property rights of the persons
living in and around the Mau Forest complex and how those rights have been affected by the
government’s efforts(or lack thereof) in conserving the Mau Forest complex. The study seeks to
discuss the interaction, balance, and equilibrium between environmental conservation and
property rights concerning the Mau Forest complex. The chapter also presents the theoretical and
conceptual frameworks on which the study is based.
2.2 Empirical review
2.2.1 Environmental management.
Environmental management is the practice of protecting the environment and its natural
resources. The Kenyan laws provide for various approaches to environmental conservation. The
government has always use various ways to conserve the environment including banning
encouraging environmentally friendly sources of energy, ban on pullutants such as plastic bags
and civic education. It is argued that low income earners depend on forest products for at least a
portion of their income and/or to reduce their daily expenditure as a source of cheap energy.
However, due to the rapid increase in population and the scarcity of resources, dependency on
forest products does not correspond to the replenishment of the forest covers, leading to
dwindling forest covers worldwide.

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In Kenya, despite the existence of various forms of environmental management methods,
it has not stopped the degradation of the environment. Impunity, mismanagement, and corruption
have led to the destruction of the environment. In some instances, the government has been
actively involved in sanctioning and legalizing actions with adverse long-term and irreversible
environmental effects. For example, the Kenyan post-independence governments failed to
implement a land program that met widespread expectations. Instead, the land was systematically
used as a tool of political patronage. As a result, vast tracts of public land were allocated to
political elites and supporters. Since independence, Kenya’s forest cover has shrunk to just 1.7
percent of the total land mass.
Land policies in Kenya, for over the last 50 years, has contributed to the forest cover
depletion(2010 report of the Task Force on Mau Forest Complex). This is through irregular and
unscrupulous degazettement and excisions of forests for the benefit of the political class and the
influential individuals. Between the years 1973 and 1985, the government excised Mau orest
land for the benefit of five group ranches. The five ranches are Sisian, Enkaroni, Enosokon,
Anakishomi, and Reiyo. These ranches have slowly but steadily encroached and extended their
boundaries into the Mau forest land. According to the Ministry of Land report, they have
increased their lands by an extra 1,807 hectares.
In 2001, the government excised and demarcated another 61,587 hectares of Mau forest.
This was allocated to individuals and since then, communities have encroached on an estimated
29,000 hectares. In the same period, government officials irregularly allocated over 17,000
hectares on the Maasai side of Mau.

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In 2003, the government set up a commission to investigate land grabbing. The Ndungu
Commission, as it is known, reported to the government in June 2004 and the report was Ogiek
community, which has traditional rights to the forest. However, the Ndungu reports state that the
primary beneficiaries were not the Ogiek but prominent individuals and companies. The illegally
and irregularly allocated land includes large tracts of protected forest. This is despite the Forest
Act (Cap 385) requiring that made public in December 2004. The report catalogs a staggering
level of illegal and irregular allocations of public lands under the administrations of both
Presidents Kenyatta and Moi for primarily patronage purposes. While senior political figures,
civil servants, and military officers were among the primary beneficiaries, tens of thousands of
ordinary people also accessed land due to illegal land allocations.
Public land, including large forest areas, was sometimes used to settle landless people,
but this land was sometimes given to political elites. For example, 1,812 ha of forest in
Kiptagich, part of the Mau Forest complex, was cleared to resettle the gazette forest land that can
only be allocated if it has been degazetted. Thus, such action should only be taken if it is in the
public interest and subject to provisions on land use contained in other legislation. After 2000
and the introduction of the Environmental Management and Coordination Act (1999), this
included an Environmental Impact Assessment. One of the methods used by the government of
Kenya to mitigate the effects of environmental degradation and dwindling forest covers is forced
evictions and displacement of persons living in and around the forest covers. Between 2004 and
2006, a massive program of evictions was carried out in Kenya’s forest areas. Houses, schools,
and health centers have been destroyed, and many have become homeless. Estimates indicate
that in six forests alone, more than a hundred thousand persons were forcibly evicted between

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July 2004 and June 2006. Evictions have continued; since 2018, Kenyan authorities have evicted
more than 50,000 people from Mau Forest lands.
2.2.2 Forced Evictions and Displacement.
UN-HABITAT(N.d) defined forced eviction as “the permanent or temporary removal
against the will of individuals, families, and communities from the homes and land which they
occupy, without the provision of, and access to, appropriate forms of legal or other protection.”
The Organization for Economic Cooperation and Development(OECD)(2021) defines evictions
as the involuntary removal of people from rental dwellings, involving a judicial process in courts
or other litigating bodies, such as landlord and tenant boards or rental housing tribunals. The
world bank( N.d) defines displacement to include relocation or loss of shelter; loss of assets or
access to an asset; or loss of income sources or means of livelihoods, whether or not the affected
persons must move to another location or the involuntary restriction of access to legally designed
parks and protected areas resulting in adverse impacts on the livelihoods of the displaced
persons—communities living in and around the forest covers in Kenya fall within these
definitions.
An eviction of unlawful occupiers is geared towards protecting the rights of a lawful
owner from an unlawful occupier with no proprietary interest in the subject property. Where the
unlawful occupier refuses to willingly vacate a property after being served with an eviction
notice, he can be removed against his will. This is known as forced eviction. Forced eviction is
The permanent or temporary removal against the will of the individuals, families, and
communities from home and land they occupy without the provision of and access to appropriate
forms of legal or other protection. Forced evictions in Kenya have attracted domestic

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condemnation, and the international community has expressed concern about how forced
evictions are carried out inhumanely.
2.2.3 Legal and policy framework of Eviction in Kenya.
The constitution of Kenya under Article 43 protects the right of every Kenyan to own
property in any part of Kenya. Consequently, the land has been the centerpiece of development
in Kenya since its independence. However, land issues have always existed and have often
caused conflicts among communities and insecurity in several parts of the country. In their paper,
Joseph Kieyah and Patricia Kameri-Mbote, securing property rights in land Kenya(2010), argued
that the essence of the land question confronting Kenya is insecure and unclear property rights.
Although Kenya has vastly developed since independence, most people continue to
depend on land for their livelihoods and well-being. Rapidly increasing population and historical
land problems have led to a labyrinth of problems that requires urgent and serious attention from
the government. The government’s failure to address the problem adequately continues to
threaten the nation’s social, political, and economic well-being. In addition, land issues have
emerged as one of the challenges that need to be dealt with if the underlying causes of violence,
such as that sparked by the disputed presidential elections in 2008, are to be avoided.
The Bill of rights as contained in the Constitution of Kenya has been lauded as the most
progressive. However, it does not have any provision for evictions. The South African
Constitution on the other hand provides under Section 26 for the prohibition of forced evictions.
It requires a court order and is only done after considering all the relevant circumstances.
Nonetheless, in Kenya, Section 2 of the Land Registration Act has defined eviction as the ‘act of
depriving or removing a person from the possession of land or property which they hold

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unlawfully either executed upon a successful lawsuit or otherwise. From the definition, the
Kenya laws only envisaged the use of eviction as against unlawful occupiers. The Evictions and
Resettlement Bill defined an unlawful occupier as a person who takes possession of land or
structures without the tacit consent of the owner or without any right in law to take possession of
such land or structure
The lacuna left on the clear legalof forced evictions have been filled by the Application
of international laws and treaties ratified in Kenya. Vide the provisions of Articles 2(5) and (6) of
the constitution, Kenyan Courts are allowed to apply the general rules of international law,
treaties, and conventions ratified by Kenya as part of Kenyan laws. In the case of Kepha Omondi
Onjuro & others -vs-Attorney General & 5 others, the High Court held as follows: “…it is
imperative at this juncture to appreciate that there is no legal framework existing in Kenya
guiding evictions and demolitions…. However, Article 2 (5) and (6) of the Constitution
provides that the general rules of international law shall form part of the law of Kenya and
any treaty or convention ratified by Kenya is part of the law of Kenya….”
In the same breath of recognizing the application of international law, Kenyan Courts
have applied the UN Covenant on Economic, Social and Cultural Rights (CESCR), General
Comment No. 7, ‘The Right to Adequate Housing (Art.11.1) which requires states to refrains
from forced evictions.
Kenya has also ratified the following international legal instrument; International
Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on
Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples’ Rights

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(Banjul Charter). These laws seek to secure the fundamental human rights including the right to
properties.
The international community have previously voiced their concerns on the methods
employed in carrying out evictions in Kenya. On 6th
April 2016, the United Nations Economic
and Social Council observed that pastoralist communities and persons living in informal
settlements in Kenya are always under threat of eviction. There is a clear lack of legal security of
tenure over properties in Kenya and forced evictions without due processes and proceudres such
as sufficient notices. The council was also concerned that Kenya has failed to enacted a clear
and predictable legislative framework to govern evictions and protect communities’ right to land.
The Committee issued recommend ions that; Kenya should take concrete steps to secure
land tenure for all, enacting sufficient legal framework including the Community Land Bill and
the Evictions and Resettlement Bill, implement court orders and judgments that provide remedies
to victims of forced evictions. These recommendations led to the enactment of Land Laws
(Amendment) Act in 2016.
A United Nations Declaration on the Rights of Indigenous Peoples requires to prevent
any form of eviction and displacement with the effect of violating the rights of indigenous
peoples (Shrinkhal, 2021). Article 10 prohibits forceful eviction of indigenous people from their
territories without their free and informed and just and fair compensation. Further, under Article
30, the signatory states are also required to obtain free and informed consent before approving
any project affecting their lands and other resources.

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2.2.4. Impact of Evictions on property rights.
Environmental conservation including forest protection is a legitimate cause. However,
how the government of Kenya has sought to achieve this goal has created a humanitarian and
human rights crises. The government has failed to reconcile its national and international interest
in environmental protection and its core mandate and obligation to protect the human rights of its
citizens. The right to clean drinking water and healthy environment on the one hand ought not to
overshadow the right to adequate dignity, shelter and the right to own properties. Evictions
therefore out to be a measure of last resort, and only carried out where necessary, and always in
tandem with the national and international human rights law.
The need to protect forest and the environment generally are not mutually exclusive.
When one overshadows the other, the objectives cannot be achieved adequately. In Mau Forest
evictions, the governments deliberate effort to ignore the resultant human rights issues has
undermined the protection of the forest. This is because, after evictions, the government failed to
address the victim’s right to shelter, which led to them returning to their former homes, from
which they were evicted from. The government has failed to take responsibility and acknowledge
that title deeds were issued to the people living in the Mau Forest through its actions, whether
legitimate or not. The government excised a portion of the Mau Forest to resettle settled
communities. After that, they subdivided the excised portion, gave them title numbers, and
issued title deeds to individuals and communities. Under the Land Act, a certificate of title is
prima facie evidence of property ownership. Whether the current owners of the subject
properties were the intended beneficiaries is a moot question.
Based on the preceding, the people living in the Mau Forest, with title deeds issued by the
government, have property rights to the subject properties. Over time, the government has sought

18
to cancel the subject title deeds. In February 2005, the Minister of Lands notified the public that
10,000 title deeds in Mau were cancelled. The process involved in the cancellation of affected
title deeds is novel and the individual owners of the affected properties did not receive an
individual notification. In August 2019, the Land Ministry also purported to nullify over 1,274
title deeds in preparation to evict the affected individual owners. However, the cancellation was
challenged in Nakuru court.
2.2.5 Socio-economic impacts of Evictions.
There are eight significant socio-economic impacts of evictions(Impoverishment Risks
and Reconstruction Framework). These are; Landlessness Joblessness, Homelessness,
Marginalization, Food insecurity, Increased morbidity and mortality, loss of access to common
property and Social disarticulation. This study shall constrain itself to the following five impacts;
2.2.5.1 Landlessness
Landlessness affects the primary rights t property and livelihood. This results in the
inability to secure basic human needs such as food and shelter. It also leads to the loss of capital
and pauperization of displaced people because land is the basic artificial and natural capital.
Unless the displaced community’s land is reconstructed or replaced with another source of
income and livelihood, they become landlessness and impoverished. Human Rights Watch
detailed how the communities evicted from the Mau Forest were deprived of their lands. In
addition, the Kenya National Human Rights Commission documented the lack of clear
compensation plans, and, to date, any existing plan has failed. This is how landlessness set in and
snowballed into other risks and losses to the communities.

19
2.2.5.2 Joblessness
Land is a natural and artificial capital that creates employment. This may be through
enterprises, services, or agriculture. Job creation is a complex process that requires substantial
investment. Loss of land leaves a lot of the affected community members unemployed or
underemployed. For example, landless community members lose access to work on land owned
by others, self-employed small producers such as shopkeepers, transporters, craftsmen and others
lose their small businesses. Even when the evicted communities are resettled, unemployment or
underemployment persists long after physical relocation.
2.2.5.3 Homelessness
The process and procedure of evictions in Kenya have not been effected particularly in
the Mau Forest complex. In the process used, the affected persons and communities are not
issued with notices and when issued, they are done so in a very lousy manner and without
sufficient time. The communities are not therefore accorded sufficient notice and time to find
alternative shelters. Evictions when carried out, involves torching of shelters which results into
homeless. For lack of alternative means the communities move into public utilities such as
schools for shelter. Some victims erect make-shift shelters by the roadside, which aggravates
their suffering. Because the Mau Forest complex is located on the high altitudes of the Mau
ranges, tropical rains are rampant. It aggravates the suffering of the homeless victims and often
leads to cold-related sicknesses and increased infant mortality.
2.2.5.4 Marginalization
Marginalization occurs when families lose economic power and spiral on a downward
mobility path. Middle-income farm households do not become landless; they become small
landholders, shopkeepers, and craftsmen who downsize and slip below poverty thresholds. Many

20
individuals cannot use their earlier acquired skills at the new location; human capital is lost or
rendered inactive or obsolete. Economic marginalization is often accompanied by social and
psychological marginalization, expressed in a drop in social status, the victim’s loss of
confidence in society and themselves, a feeling of injustice, and deepened vulnerability. The
coerciveness of displacement and the victimization of the victims tend to depreciate their self-
image, and host communities often perceive them as a socially degrading stigma.
2.2.5.5 Increased Morbidity and Mortality
Massive population displacement threatens to cause severe declines in health levels. The
outbreak of parasitic and vector-borne diseases such as malaria and schistosomiasis sometimes
accompanies displacement-induced social stress and psychological trauma. Unsafe water supply
and improvised sewage systems increase vulnerability to epidemics, chronic diarrhea, and
dysentery. The weakest segments of the demographic spectrum-infants, children, and the elderly
are affected most strongly.
2.2.6 Environmental impacts of eviction
Eviction reduces population density in a given area. This reduces environmental pressure
and competition for resources and hence allows biodiversity to thrive. This is the primary aim
amd objective of evictions aimed at environmental conservation. However, evictions also have a
negative impact on the environment, especially on the resettlement areas. This is because it
increases the population density, completion for resources and environmental pressure thereby
leading to environmental degradation. Evicted population also hold negative attitudes towards
conservation, which can result in environmental degradation and loss of biodiversity. In Uganda,
the communities that were evicted in 1983 and resettled in 1986 at Lake Mburo National Park
killed the wildlife to eliminate the conservation value and wade of future eviction possibilities.

21
2.2.7 Community inclusion in the conservation of the Mau Forest complex.
Forest Act 2005, recognizes the vital role played by the indigenous people and
communities living around the forest covers. The Act gives the communities the power, right,
and responsibilities to be contract managers or co-managers of forest resources. The government
has formulated policies that all ows it to involve communities in the
management of forest. These policies have been implemented in such areas as Mount Elgon,
Mount Kenya, Kakamega forest, Cherangany forest, Mau Forest ecosystem, and other small
ecosystems.
2.3 Theoretical framework
The right-based theory of development guided the study. Noh (2021) posits that the right-
based approach to development places human rights at the center of development policy and
includes economic, social, cultural, civil, and political rights. In light of this,secure land and
property rights are critical to developing a rights-based approach. In addition, the rights-based
approach ensures that program designers proactively consider women, minorities, indigenous,
and other marginalized groups in development programs.
Land and natural resources are essential for individuals and households to meet
subsistence needs, including food and shelter. To this end, access to land and natural resources is
critical for poverty alleviation and food security. The importance of land as an asset and
community identity in Kenya cannot be over-emphasized. Displacement and evictions of any
nature and for any reason deprive the affected persons of their rights to property. The concept of
sustainable development has made society conscientious of the problems currently facing the
environment, such as conservation, sustainable use of ecosystems, climate change, pollution, and
maintenance of biodiversity are complex and dynamic. There is a global consensus that

22
sustainable development cannot be alienated from environmental conservation. At the
international level, the United Nations climate change conference(COP26) listed its
achievements, including; boosting efforts to deal with climate impacts. It also mobilizes billions
and trillions towards climate finance goals, attaining collaboration among governments, civil
societies, and businesses to deliver on climate goals.
Environmental conservation and the protection of human rights are not mutually
exclusive. Evictions and displacement of communities as a means of environmental conservation
have proven ineffective and have led to perilous suffering for the affected. This is especially true
when the government that purports to conserve the environment was actively involved in the
efforts that led to environmental degradation. When the government exercised portions of the
forest to settle landless communities, the communities issued with the title deeds had a legitimate
claim over the said properties. Their legitimate expectations are that the government of the day,
which they actively participated in electing, should protect their property rights under the social-
contract theory.
Muldoon (2016) postulates that the social contract theory, proposes that in our natural
state, humans would be in a constant state of war and quarrel with one another-everyone
competing for resources. Because it is an ill condition to remain in the state of nature, the people
are driven to want to give up certain rights and freedoms to protect their property better.
Humanity can only give up these freedoms through such systems as democracies where, by
consent, establish a government to rule, and we consent to its laws and rulings by majority votes.
In the social contract theory, scarcity of resources and protection of property rights is at
the epicenter. Therefore, the state is expected to protect its citizens and their rights to property.
However, when the same government engages in malpractices such as corruption in the realm of

23
property rights of its citizens, the essence of the social contract is defeated. As earlier stated in
this study, the importance of environmental conservation should not overshadow and trample
over the rights of the affected persons. This is why the government and the international
community have enacted laws and policies to govern evictions and displacement of populations
whenever the need arises. However, when these laws and procedures are not followed, it leads to
grave consequences and injustices to the affected communities.
According to May (2013), John Rawl’s 1970 general conception theory stated that all
social values – liberty and opportunity, income, wealth, and the basis of self-respect- should be
distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s
advantage. For development-induced displacement, Rawls’s general conception recognizes
injustice as a consequence of unwarranted displacement. An unsuccessful resettlement scheme
can not only fail to benefit displaced persons and their families, but studies show that it can
impoverish them. In Rawlsian terms, it can create new inequalities by depriving people of
income, wealth, and social goods in two other categories: liberty and opportunity and the social
basis of respect. If Rawls‘ thinking is followed, justice forbids inequalities unless they work to
everyone‘s advantage. Then these effects of displacement can be seen not only as impoverishing
but as unjust.
2.3.1 Social Justice and Forced Displacements
Forced evictions, aimed at environmental conservation and/or development reasons
creates a pervasive and intrinsic contradiction. They create an inequitable distribution of
resources and developments that strains the environment of the raise significant ethical questions
because they reflect an inequitable distribution. Environmental conservation programs are

24
indisputably needed. However, the involuntary displacements caused by such programs also
create major impositions on some population segments.
Forced evictions curtail the rights of the affected populations by state-power intervention
and are often executed in ways that leads to the affected populations being worse off. This
creates issues of social justice and equity. The state invokes the principle of the “greater good for
the larger population”, to sanitize and justify forced displacements. This principle is abused to
justify and rationalize avoidable suffering and ills against the affected communities. The
resultant effects are some people enjoying the developments at the expense of others.
2.4 Conceptual framework
Mau forest has, in the recent past, been on the public lame light as a result of
deforestation taking place in the forest. The impact of deforestation in the Mau has been felt in
Kenya and the region. It has led the government, in collaboration with conservation agencies, to
restore the Mau Forest complex. However, the restoration has displaced communities living in
and around the Mau Forest, including the indigenous Ogiek community. The government and
humanitarian agencies, in intervening to mitigate against the impact of eviction among forest
evictees, forced displacement, and involuntary resettlement, lead to socio-economic impact.

25
CHAPTER THREE
Research Design and Methodology
3.0 Introduction
This chapter deals with the specific procedures and techniques used to generate data that
is relevant to the study. The chapter shall also deal with the methods of analysis and presentation
of the collected data. In this study, both primary and secondary data will be used, while
qualitative and quantitative techniques will be used in data analysis.

26
3.1 Research Design
This study adopted a descriptive survey method. This method is appropriate for data
collection in households and camps in Kuresoi South, Molo constituency, and Narok South
settlement scheme. Descriptive survey methods provide a suitable means through which
community views, opinions, attitudes, perceptions, aspersions, and suggestions regarding the
phenomenon under investigation are obtained.
3.2 Sampling Frame
The sampling frame for this study shall be obtained from the Kenya forest service office,
provincial administration, and particular program ministry. Key informants (based on Age,
Education level, and position in society) was drawn, Government Agencies, Kipsigis community
leaders, Maasai community elders, Ogiek community leaders, and non-governmental
organizations, and respondents drawn from household members.
3.3 Sampling techniques and sample size
Purposive sampling shall be used to choose Ogieks as a particular group to be studied.
Accordingly, Ogiek was categorized into four clusters following their area of settlement. This
includes the Ogiek of Tinet ward in Kuresoi-south and the Ogiek of Marishoni in Mole and
Njoro constituencies.

27
3.4 Sources of Data
Both primary and secondary data shall be obtained for the study using questionnaires,
interview schedules, and focus group discussions. Secondary data shall be obtained from a
review of published and unpublished materials from books, refereed journal articles, unpublished
theses, and dissertations.
3.5 Data collection instruments
The instruments used to collect data relevant to this study shall be questionnaires and
focus group discussions.
3.5.1 Questionnaire
Questionnaires shall be administered to community leaders and local administration
officers. It is intended that both structured and non-structured questions shall be contained. A
questionnaire allows the collection of many data within a short time, is easy to administer and
very economical. It also saves time and allows the researcher to civer a wide area of study within
a very short time.
3.5.2 interviews
Interviews of sample population of the affected communities shall be conducted. This
will allow face to face interaction with the respondents and will be useful in obtaining
background information and the participants experiences. In this study, it is intended that both
open-ended interviews and fixed-response interviews shall be employed.
3.5.3 observation
Upon visiting the affected areas and communities, observation shall be useful in obtaining
information on the level of encroachment into the Mau forest, the extent of environmental
degradation and the impact of the evictions on the livelihoods of the affected communities.

28
3.6 Methods of data analysis and presentation
In this study, both the descriptive analysis techniques and the inferential analysis
techniques sall be employed. Under descriptive analysis, quantitative data will be processed
using measures of central tendencies such as frequencies, means, and percentages. Qualitative
data will processed and interpreted in accordance with the research objectives and questions. The
resultant data will be presented in figures, tables, maps and any other appropriate means of
presentation.
3.7 Ethical Considerations
According to Blackburn (2021), ethics are the norms for conduct that distinguishes
between acceptable and unacceptable behavior. It is the objective of this study that non of the
participants gets harmed or suffers any adverse consequence from the activities undertaken to
accomplish this task. The foresseable ethical issues can arise during this research include
confidentiality, fabrication or falsification of data, treatment of human subjects and animals in
research, and conflicts of interest. In order to mitigate the cited ethical issues, several
considerations shall be made including; obtaining authority from National Council of Science
and Technology before collecting data, informing respondents of the purpose of the research and
where required to consent to participate. The participants shall be informed of their right to
decline to participate in the research and the confidentiality and anonymity of the information
they avail. The resultant data will be reported without any misrepresentation or fabrication.

29
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