Introduction
1. The circumstances leading to the filing of this petition are that: -
i) Sometime in 1973, the County Council of Central Rift initiated a process aimed at setting apart land within its area of jurisdiction for establishment of a game reserve. That fact is borne out in several letters produced in evidence by the 2nd, 6th and 7th respondents.
ii) The process referred to in (i) above, culminated in setting apart of all that area of land situated in south of Lake Baringo in the Baringo District of the then Rift Valley province of Kenya.
iii) The boundaries of the area set apart are delineated and edged purple in plan No.216/26 signed and deposited in the Survey Records office of Kenya, Nairobi.
iv) The land referred to in (ii) and (iii) above, was set a part for Lake Bogoria Lake Reserve. The facts in (ii), (iii) and (iv) are borne out in Gazette Notice No.270 dated 12th October, 1974.
v) The letters exchanged between the County Council of Central Rift and the various government entities, involved in the process that culminated in setting apart land for Lake Bogoria Lake Reserve, show that the Council of Central Rift was advised by the Commissioner of Lands among other state agencies involved in the process, about the obligation imposed on it by law to compensate the inhabitants and/or residents of the area intended to be set apart.
vi) The evidence adduced by the respondents, comprised in a letter from the Clerk of the County Council of Baringo, D.K Boiywo, dated 9th May, 1986 and the certificate of payment attached thereto, show that all the residents (170 in number), were paid Kshs. 3,152.35 per family. The certificate of payment indicates that the residents were happy with the compensation.
2. Complaining that the applicable law and procedures were not complied with in setting apart land for Lake Bogoria Reserve and claiming that they were illegally removed from the land that was set apart for Lake Bogoria National Reserve (hereinafter referred to as the suit land), the petitioners instituted this petition seeking judgment against the respondents, jointly and severally, for the following orders: -
i) A declaration that their constitutional right to property and/or interest in or over the property within and around lake Bogoria National Reserve in Baringo County and around Lake Bogoria National Reserve covering Rabai, Emsos, Chemurket, Kamayo, Ngorkoin, Majimoto, Kongilel, Sosiche, Chebulunye Kapchoken/Kamaringen and Njoroh areas covering 70.9 square kilometres, equivalent to 17, 515.39 acres or 7090 hectares deserves the protection by this Honourable Court and that protection do issue accordingly…
ii) A declaration that they (the petitioners) were persons ordinarily resident in the trust land area around Lake Bogoria National Reserve covering Rabai, Emsos, Chemurket, Kamayo, Ngorkoin, Majimoto, Kongilel, Sosiche, Chebulunye Kapchoken/Kamaringen and Njoroh areas covering 70.9 square kilometres, equivalent to 17, 515.39 acres or 7090 hectares and therefore have rights, interests and other benefits in respect of that land that was previously vested in them as a group, family or individually under African Customary Law;
iii) A declaration that having not being compensated, the setting apart of the area around Lake Bogoria National Reserve was of no effect…
iv) A declaration that their rights and fundamental freedoms and in particular the protection of right to property and/or interest in or right over the property described in (i) and (ii) above has been violated, infringed or arbitrarily dispossessed set apart and the protection of their property within Lake Bogoria National Reserve in Baringo County was breached and therefore the acts of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents were contrary to the law and the Constitution of Kenya and therefore arbitrary, illegal, unconstitutional, null and void and had contravened Article 40 and 47 of the Constitution of Kenya, had contravened the provisions of sections 117(1), 117(2), 117(4), 118 of the repealed Constitution read together with sections 7(1), section 8 and section 13(2) of the Trust Land Act Cap.288 Laws of Kenya;
v) A declaration to issue that the acts of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents of unlawful deprivation, unlawful arbitrary setting apart of the petitioners’ parcels of land…….were acts of illegality, arbitrary, unconstitutional and the respondents are liable to the petitioners in compensation and/or damages for losses, for loss of use of land and for breach of their constitutional rights on such full compensation in the sums which compensation the petitioners pray as below:
a) Report and valuation of multi-user property Lake Bogoria National Reserve Residents Land at Kshs. 4, 605, 400, 620.00 as shown below…
b) Assessment of loss of user at Kshs. 9, 386,591, 130.00 as shown below…
vi) Damages as against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Respondents for breach and/or violation of the petitioners’ constitutional rights to property…;
vii) Special damages being the valuer valuation costs…in the sum of Kshs. 34, 429, 750. 36…;
viii) Exemplary damages for oppressive, illegal, unjust, inequitable and arbitrary acts of unlawful and unconstitutional deprivation, setting apart of the suit land by the respondents, that is by the Government of Kenya without attendant payment of prompt compensation.
ix) Costs and interest thereon at Court rates.
3. As can be discerned from the averments and/or contentions in the petitioners’ further amended petition, dated 6th May 2019, the petition is premised on the following grounds: -
i) That the suit property was acquired contrary to the dictates of the provisions of the law, specifically section 107 of the Land Act, 2012;
ii) That the suit land, which is trust land, was acquired contrary to the dictates of Section 117(1), (2), 117(4) and 118 of the repealed Constitution of Kenya read together with Section 7(1), 8 and 13(2) of the Trust Land Act Cap, 288 Laws of Kenya;
iii) That the current legal regime, specifically Section 107 of the Land Act, 2012 mandates the National Land Commission to acquire land for public purposes after being prompted by the National or County Government;
iv) That Article 40(3) of the Constitution of Kenya, 2010 provides that no person shall be deprived of his or her land or property of any description unless the acquisition is for a public purpose and subject to prompt payment in full of just compensation;
v) That whilst under Section 117(1) of the repealed Constitution of Kenya as read with Section 117(2) thereof, a County Council could in accordance with an act of parliament enacted for that purpose, set apart land for public purpose use, that setting apart would be of no effect unless there was prompt payment of full compensation to any resident of the land set apart, who under the African Customary Law has a right to occupy any part or is in some other way pre judiciary affected by the setting apart;
vi) That under the repealed Constitution and the Trust Land Act, trust lands were neither owned by the Government nor by the County Council within whose area the land fell.
vii) That county councils held trust land on behalf of the local inhabitants in the area.
viii) That the procedure set out in the Trust Land Act was not complied with in setting apart the suit land for use for public purpose, Lake Baringo National Reserve.
ix) That no prompt payment of full compensation was worked out and paid to the 172 residents who occupied the suit land at the material time. The petitioners acknowledge that they were paid Kshs. 3,152.35 which they claim was for demolition of their houses but contend that they were not compensated in respect of their rights to occupy the land.
4. According to the petitioners, the County Government of Baringo had requested the 172 families that resided in the area around Lake Bogoria one mile of land around the Lake and to move out within 14 days.
5. Claiming that they were forcefully evicted from the suit land in the period between 1977 and 1986, the petitioners claim that their huts were burnt and destroyed.
6. It is the petitioners’ case, that on completion of the setting apart of the area around Lake Bogoria, the 3rd, 4th, 5th and 8th respondents were required by law to make prompt payment of full compensation to all the 172 residents of the land set apart.
7. It the petitioners’ further pleaded case, that the 1st respondent (National Land Commission) was required to do an inquiry and make a separate award of compensation to every person determined to be interested in the land and then offer compensation in the form of monetary award or of land of equivalent value. The petitioners’ contend that in the circumstances of this case, no such compensation was paid to them as they were merely compensated for demolition of their houses.
8. Maintaining that the respondent did not adhere to the applicable law and procedures in acquiring the suit land, the petitioners complain that their efforts to obtain full compensation and/or obtain redress have been futile.
9. Lamenting that they have suffered for a long period of time, over 40 years and continue to suffer on account of the respondents’ failure to address their grievances, the petitioners urge this court to grant them the reliefs sought.
10. The 2nd, 6th, 7th and 8th respondents filed a response to the further amended petition, dated 30th October, 2019 in which they deny the allegations of wrongdoing or violation of law levelled against them and inter alia contend that the applicable law and procedures were adhered to in setting apart the suit land for public purpose.
11. The 3rd, 4th and 5th respondents relied on the replying affidavit of Elijah Kipkoros sworn on 27th February, 2019 and the further affidavit (replying) of Joel Kibiwott Koima, the County Executive Committee Member for Lands, Housing and Urban Development, County Government of Baringo, sworn on 31st October, 2019. Through those responses, the 3rd, 4th and 5th respondents inter alia contend/depone as follows: -
“5. That there is no authority given by the petitioners to petitioner No.33 Joseph Arusei Wendott to swear an affidavit to represent them or file this petition on their behalf hence the petition cannot stand the test of a good petition;
6. That most of the petitioners herein have passed on long time and the dead cannot file a petition since they have not resurrected from their graves…
7. …
8. That on the record the purported petitioners who have passed on are as per the ground report as listed on further amended petition dated 6th May 2019 which are recorded in paragraph 16 of the replying affidavit of Elijah Kipkoros and the same names are listed in paragraph 5(a) of the amended petition…. among other petitioners are listed on the further amended petition of the petitioners;
9. That according to the Afriland Valuers Ltd valuation report…the report cannot be relied on since there were no instructions or authority from the petitioners or the government allowing them to value such a national reserve and they were doing baseless assessment;
10. That it is clear that there is no title deed or registration document number on the report and assessment on page 162 of the petition documents and the valuer stated “the land was not registered but may be referred to as Lake Bogoria National Reserve Residents’ Land”;
13. That it is not possible for one to claim compensation after 45 years on a property they do not own and they don’t have ownership documents.
16. That the petitioners were fully compensated in 1986 and they were satisfied and voluntarily moved out of the Lake Bogoria National Reserve and they have never complained since then, 45 years ago;
20. That if the petitioner’s concern is genuine they should have raised it with the relevant authorities….
27. That the issue that most of the petitioners have passed on is a serious issue and this Honourable Court should interrogate this issue properly and openly to arrive at a fair conclusion…
28. That the minutes attached to the petitioners’ documents are signed by strangers who are not petitioners herein and the documents should be ignored or expunged from the record.
29. That the petition lacks merit and ought to be dismissed with costs to the Respondents…”
12. Pursuant to directions given on 17th March 2021, the petition was disposed of by way of viva voce evidence.
EVIDENCE
Petitioners case
13. Joseph Arusei Wendott P.W.1, testified as follows: -
“... in 1973 KWS visited Bogoria area. They wanted to establish a National Reserve in the area we were residing…unfortunately the County Council decided to take over the land, about 17000 acres. They evicted us from the land after giving us some little money, 3000/- per household. The money was to be used to demolish our respective structure and built another house elsewhere. This exercise was carried out by the chiefs, councilors and area elders.
We were promised compensation which to date has never been paid. We have also not been given alternative.
I am the chairman of the registered 172 residents of Bogoria. We are registered-Pexbt 4, as community based organization (CBO).
We brought this matter to court after many years because the government failed to honour its promise to us and we had reached the end. …we pray that the court orders the respondents to compensate us as per the valuation report filed. Many of the original petitioners are deceased but their families are still alive. The petitioners who are alive are 71.”
14. On cross examination, PW1 inter alia stated as follows:-
“I used to be the Chief of Sandai from 1997-2014. In 1973 I was 18 years therefore I was aware what was going on. I am not aware that the land where the County Council set up the National Reserve was not our land and that the land had been set aside as trust land. None of us had a title deed. I am not aware that there was a title deed that was in the name of the County Council. I am not aware that we had only been allowed to utilize the land for herding. Our CBO was registered in 2018. In 1973, the CBO had not been registered…
I am not aware that the Government gave the County Council of Baringo authority to use the land in a way that would benefit a wider community.
I am not aware of the letter dated 4th June, 1973 (in defendants’ bundle of documents). I am also not aware of the letter dated 20.12.1993 where the County Council of Baringo agreed to surrender the land to the National Government to be used as a national reserve.
I am aware of a meeting held at Maji Motto communicated through a letter dated 20.2. 1974. The meeting was attended by many people (the letter says all residents). I am aware that a resolution was reached that the land be set aside to be used as a national reserve. In the meeting National Government was to give money to the County Council to pay residents to move out of the land; build schools, provide water etc.
I am not aware there was to be no further compensation because the land was community land.
Regarding the certificate of payment dated 9.5. 1996, I wish to confirm I was among the persons paid 3,152.35. I also confirm the people contained in the list were paid and each person signed against their name/thumb printed.
We did not write any letter or sign a document that we were yet to be compensated for our land.
I am not aware that the list stated that the money paid was full and final compensation. It is true we had agreed as a community that our children would be employed in Lake Bogoria Resort…
I am not aware that in 1974, the land was set aside to be used as a National Reserve…we have never written a letter or applied for the gazette notice be set aside. We have not made this prayer in the instant suit.
The land is currently used as Lake Bogoria National Reserve. The area is fenced off and there are developments…I am not aware we could have protested/appealed the decision to set up the National Reserve.
I am aware that William Yator and William Arap Ngasia & others went to Nakuru HC and applied that the gazette notice be vacated. We did not participate in the case. I am not aware that their prayers and ours are similar.
I am not aware the case was dismissed on the ground that the applicants had already been compensated.
It is true we did not have title deed for the suit property. People who were residing there were given 3,135.05. I am among those who received the money…However, as far as we are concerned, compensation was for demolition….
I am not aware why we were not paid for the land but for demolition. I am not aware that we were not paid for the land because it was trust land. …I am also not aware that the 3,150 was paid for customary rights. It is true that for one to claim ownership of land in Kenya one must have a title deed. After we were paid Kshs. 3,150 we did not complain anywhere else until we filed this case. We complained over 40 years later- 2018 when we filed this case.
I am not aware that some members of our community went to court and their case was dismissed.
I am also not aware that according to the law that I need to complain before I move out of land I occupy.
We have filed a valuation report…we paid the surveyor money, 5 million in cash…but he did not give us a receipt.
I am not aware that the surveyor claims we paid him 34, 000,000 and we have no receipt/evidence showing we paid him this money.
I confirm we left the land after being paid Kshs. 3, 150/-.
I know Endorois community. I am not part of that community…I am not aware about the decision by the African court on h & peoples rights and that the government thereafter formed a task force. I am not aware that a decision was made by the task force that members of the community be employed by the County Council of Baringo…I am not aware that money made from the reserve was used to improve the community and give bursaries…
I am the chairman of the CBO and I have their authority. I do not have a letter from them appointing me to bring the case. However, I wish to state that we gave our lawyer our grievances and he filed the case the way he saw fit.”
15. On further cross examination PW1 stated as follows: -
“…we held a meeting at Maji Moto with the 172 petitioners and they gave me authority to plead their case on their behalf. The agreement was verbal but I signed an affidavit on their behalf. I know all the 172petitioners. Some of the petitioners are deceased. The deceased are represented by their children…
Before we vacated the land we had built temporary houses, animal shed etc.
All 172 were compensated but for the buildings. We were living as a community and no specific person had their specific land therefore compensation should be community not individual as we did not have specific acreage of land.
Adjudication has been done in Baringo County (Bogoria)….
When land adjudication was done I was given land elsewhere to which I have title issued in 1988…..
The existing developments in the community…were built by the government to benefit the community including the petitioners and their families.”
16. In further cross examination, PW1 stated: -
“…I am the chairman of 172 residents. I do not have any document in court showing that I am the chairman of the group and I have also not brought/filed a letter of authority.
The land in dispute belonged to us and our forefathers before we were asked to vacate by KWS. The land did not belong to the County Council.
The 172 people on the list are the only ones who were displaced. After we vacated, the area became gazetted land (protected) which is now public land under the watch of KWS.
I admit some of our members & children were employed in KWS, Lake Bogoria resort and County Council. We have sued KWS because they are the ones occupying the land.
The list of compensation is correct. However, we signed it without knowing that it was for full and final payment. We thought we were being paid for demolition only.
According to paragraph 14A of the amended petition, we are not claiming any compensation from the KWS.”
17. In re-examination, PW1 stated as follows: -
“…I have authority of 71 of the petitioners to plead on their behalf. The other petitioners are deceased.
We moved to court praying for full compensation. The amount of money we were paid was to compensate us for demolition of our houses. The list filed by the A.G, dated 30th October 2019 is not for full compensation. I do not know how GOK arrived at the figure paid of 3000/-. We did not sign any document showing that what was received was full and final compensation.
We were not parties to Nakuru HC Misc 183 of 2000 and I do not know the parties who filed the above cases.
I am also not aware of Misc HC 522 of 1998; Nakuru HC Misc 159 of 1999; African Court No. 273 of 2006. We have never filed any other case against the Government. We are members of Endorois but we were living around Lake Bogoria, not any other area.
When we gave away our land, we did not agree that our families would be employed in lien of full compensation.
Over 172 persons were displaced from Lake Bogoria area and we have registered ourselves as CBO. Our sole objective to register the cbo was to follow up on compensation. The decision by the African court did not affect us and we are not among those to be compensated.
I was elected chairman of the cbo. I have sworn an affidavit to this effect.”
18. The petitioners also availed Solomon Kiyayan as P.W2, whose evidence is in most aspects similar to that of PW1. The only glaring difference between the evidence of PW2 and that of PW1 is that PW2 stated that they were removed from the suit land before compensation, which position is inconsistent with the testimony of PW1 that they were removed from the suit property after they were compensated.
19. The other notable difference between the testimony of PW2 and that of PW1 is that according to PW2, they were promised land elsewhere which promise was not fulfilled by the government.
3rd, 4th, 5th 6th, 7th and 8th Respondents’ case
20. The testimony of DW1 who testified on behalf of the 3rd, 4th and 5th respondents and DW2 who testified on behalf of the 2nd, 6th,7th and 8th respondents and the documents produced by the two witnesses is captured in paragraph1 of this judgement.
21. At close of hearing, parties filed submissions which I have read and considered.
SUBMISSIONS
22. In their submissions filed on 8th August 2025, the petitioners have identified two issues for the court’s determination namely;
i) Whether the setting apart of trust land that created Lake Bogoria National Reserve was attended by prompt payment of full compensations to the petitioners; and
ii) If not, what appropriate order or orders, remedies and/damages will issue to remedy the violation and/or secure and vindicate the rights breached or put differently, what appropriate remedy or remedies should be fashioned to redress the petitioners’ grievances.
23. On whether the setting apart of trust land that created Lake Bogoria National Reserve was attended by prompt payment of full compensation to the petitioners, the petitioners submit/address the court as follows: -
“It must be shown and the respondents have failed to show that the process leading to impugned sum of Kshs. 3,152.35 was legal, was a due process supported by documentary evidence of the formula used in a process that was transparent, accountable and equitable...That was not done by the respondents…that by and large the respondents’ case in all its manifestation failed to table any valuation or mathematical calculation worked out or measured or carefully planned to reach the sum of Kshs.3,152.35 that was paid and therefore their case totally was ineffective and lacked coherence…that it is not acceptable and plainly illegal, unlawful and unconstitutional for the respondents to shortchange the petitioners of their land in what have never been compensated. In any event that promise never took effect, the consequence of which the petitioners have lost their land and their rights to land were violated by state officers without prompt and adequate compensation. At any rate, the respondents’ acts were arbitrary and contravened Article 47 of the Constitution of Kenya which requires that every person be subjected to fair administrative action before a decision that prejudicially affects him or her…that this is a clear case of egregious violation of right to property (the right to prompt payment of full compensation). The 172 petitioners herein were removed from land that was set apart for conversion to Lake Bogoria National Reserve. The petitioners were each paid Kenyan shillings 3,152.35 an amount so little that it cannot reasonably be considered fair and full compensation. To date no criteria has been availed before this court by the respondents to justify paying such an amount or whether it even reflected the value of the land acquired at the time. At the time of acquisition the land was held in trust by the County Council of Baringo as provided for under Article 115 of the repealed constitution for the benefit of the local communities…furthermore, the Trust Land Act Cap 288 now repealed, provided for setting apart of trust land under section 7 and proceeded to provide for compensation…notably, the 2010 Constitution reinforced these protections…the breaches above with regard to the petitioners’ rights are continuing and this litigation is the best thing that has happened to redress and address this injustice and/or violation that has occurred and continues to occur in an arbitrary manner which resulted in arbitrary dispossession and deprivation of the petitioners of the land and therefore entitled to full compensation.
That the contents of the respondents’ response are untrue and misplaced. It is crystal clear that the 172 petitioners were residents occupying the area around Lake Bogoria and were entitled as such to occupy it under African customary law and they were displaced to give effect to the setting a part of the area for use and operated as lake Bogoria National Reserve…that when a machinery has been set up in law for purpose like the instant case set out by the repealed constitution for prompt payment of full compensation to be affected persons, it is not for those charged with implementation to second-guess it or sidestep it by creating some sort of compensation in which the precise mathematical valuation or formula is not shown and established and one can be forgiven for thinking that the figures paid to the residents in the absence of the valuation or the formula were therefore figures plucked from the air. They cannot do it as they like and if they fail as they have done herein in, the honourable court should see that they do it…it is the petitioners’ case, urged very strongly that from the evaluation of the evidence, it was crystal clear, beyond a peradventure that the respondents did not provide to the court some valuations to enable the court advert its mind and exercise an independent mind and see whether or not the sum of Kshs. 3,152.35 was reasonable, full and sufficient compensation. The court was not provided with some valuation done by the government so that a court of law can undertake analysis and determine the accuracy, quality and appropriateness of the compensation paid and neither was data used, enquiries made and suitability of methods and techniques that were used brought to court. In the end, there is nothing on the respondents’ part to show that the sum of Kshs. 3,152. 35 was the full payment….we submit that the petitioners’ case has been proved on a balance of probabilities…they have proved and demonstrated how they were removed from their land and the manner in which their rights were violated in the process through clear uncontroverted testimonies. They have clearly demonstrated how this violation impacted their lives and continue to do so…as stated and testified by Joseph Arusei Wendot before this court, this amount was merely intended to facilitate demolition of their homes. Full compensation in its proper legal sense, would entail an amount sufficient to enable the petitioners to resettle their families, restore their means of livelihood and secure a dignified existence. Importantly, no basis for this sum was proved. Where is the valuation or calculation leading to this amount being awarded as just compensation, call it, full restoration. That is the question to be asked and wrestled with in this petition. That it is undeniable that there existed clear and material differences among the petitioners in terms of their personal circumstances and the extent of loss suffered. Some had more huts or homesteads on their land, others had larger families with more wives and children and there were notable variations in the number of livestock kept…the distinctions directly impacted the value of their individual holdings and the disruption caused by their displacement. It would therefore be unjust and contrary to principle of full and adequate compensation to subject all the 172 petitioners to a uniform payment. A one size fits all approach fails to account for the unique losses suffered by each individual and cannot in law or equity be deemed to be full restoration nor better still cannot be described as prompt payment of full compensation. The question to be asked and to be answered is why did the respondents not bring the Government valuers to weigh in for purposes of full compensation to the persons displaced and it is telling that the respondents never brought to court any such valuation carried out to reach the sum of Kshs. 3,152.35…the petitioners’ had legitimate expectation that the public officials namely…and the Government of Kenya will do the right thing, stay on the right side of the law and compensate the petitioners…
That the petitioners appended their signatures and thumbprints in the list titled compensation of residents within lake Bogoria National Reserve, a document being advanced by the respondents does not in itself amount to consent to the adequacy of the amount paid nor does it signify agreement that the same constituted full compensation. Critical questions arise; did the petitioners fully understand the legal effect of signing that document; did they intend, by their signatures or thumb prints to waive any right to future compensation? It is incumbent upon this Honourable court to interrogate both the document and the circumstances surrounding its signature and thumb print and to determine whether it was a lawful and informed transaction or one that facilitated the violation of the petitioners’ constitutional rights….”
24. Being of the view that the issue as to whether the process that culminated in setting apart of trust land that created Lake Bogoria National Reserve was attended by prompt payment of full compensations to the petitioners as capable of settling the petition on its merits, I will address it first.
25. Regarding that issue, the 2nd, 6th, 7th and 8th respondents, through their submissions filed on 28th August, 2025, have submitted/addressed the court as follows: -
“…The petitioners claim that they were not sufficiently and promptly compensated. They allege that their compensation of Kshs. 3,150 each was in respect of demolition of houses and not in respect to the land. They further allege that since the same was done in 1986, then it was not prompt. The 2nd to the 8th respondents on their part insist that the compensation paid to the petitioners was sufficient and prompt.
The process of setting a part of the game reserve started in 1973. All intentions for compensation in accordance to African Customary Laws were made clear in all the correspondences. The persons whose rights were to be extinguished were given monetary compensation, see EX 19. For the rest of the community it was agreed that the Council would establish a boarding school and a water project. While testifying, DW1 stated that the boarding school and water project was established which was part of the compensation to the community negotiated for itself.
With respect to the 172 members who were are the petitioners herein, they received 3, 152.00 shillings. The payment was completed in 1986. There was no indication of dissatisfaction at the time and all persons signed on the document acknowledging payment in full. The document denoting payments, EX 23(a), (b) and (c) indicates that the said money was compensation of lake Bogoria Game Reserve residents. In fact, if Kshs. 3, 152.00 is looked at from an angle of the citizen of Kenya today then a conclusion that the same was not sufficient can easily be arrived at. However, this amount is a payment process that was completed in 1986. The shilling was stronger and inflation was not as high as today. The value of property that keeps appreciating as population and development in the community had not reached the value it is today. In any event, compensation was being done according to customary law as provided in the Act. The petitioners have not provided any evidence that according to customary law the value of the land was supposed to be a certain figure. The manner in which the compensation was done was agreed by the petitioners and the community at large according to their customs. Customary law…is a fact to be established. It is the petitioners’ onus to prove that the mode of compensation was not sufficient according to custom…
DW1 testified that the compensation was done at the market rate then and that there was no complaint upon compensation. The land was communally owned and used as grazing area.
The petitioners collected their compensation and did not raise any complaint that it was insufficient. There is no correspondent or protest recorded by the petitioners in any of the respondent’s offices. In paragraph 20 of the petition, the petitioners allege to have knocked doors to the offices of the 1st, 2nd, 3rd, 4th and 5th respondents but they have not provided any evidence to prove the same. In government offices, the court should take judicial notice that there is always a visitor’s book and that any issue raised is recorded and received in writing. The petitioners had a chance to produce such evidence and have not done so neither have they tendered any evidence that they requested for access of such information from the respondents. Further it is surprising for people to walk into offices for over 32 years and not write even one correspondence. The respondents, on the other hand, have stated that the petitioners have never made any demands in respect to compensation and have done so only in this suit….”
Analysis and determination
26. In addressing the question or issue as to whether the process that culminated in setting apart of trust land that created Lake Bogoria National Reserve was attended by prompt payment of full compensations to the petitioners, I begin by pointing out that the Trust Lands Act, Cap 288 Laws of Kenya (now repealed) provides the right to compensation; application for compensation, assessment of award, communication of award and challenge of award, if need be.
27. Regarding right to compensation, the Trust Land Act, in Section 8 provides for two categories of right to compensation. This are: -
i) Compensation to any resident of the area of land set apart who under African Customary law for the time being in force and applicable to the land has a right to occupy any part thereof-see Section 8(1)(a) of the Act;
ii) Compensation to any resident of the area of land set apart who is, otherwise than in common with all other residents of the land, in some other way prejudicially affected by the setting apart.
28. Section 9(1) of the Act imposes an obligation on a person who claims to be entitled to compensation, in either of the circumstances contemplated in section 8(1) (a) or 1(b) of the Act to apply to the District Commissioner (DC) for consideration of their application.
29. Section 9(2) on the other hand, makes it clear that the District Commissioner in making his award of compensation is to be guided by the criteria set in Section 8(1)(a) or (1)(b).
30. My appreciation of the provisions of Section 8(1) and (9)(1) and (2) of the Act, is that the law imposed an obligation on a person claiming to be entitled to compensation under Section 8(1) of the Act to firstly prove that he is entitled to compensation either in common with others or that he ought to be treated separately on account of the prejudice suffered by him which is different from the prejudice suffered by the others.
31. My further appreciation of section 8(1) as read with section 9(1)(2) of the Act, is that where a claim for compensation was based on Section 8(1)(a) of the Act as opposed to Section 8(1)(b), the award would be uniform as there would be no basis for treating the joint applicants separately.
32. In applying the provisions of Section 8(1) and 9(1)(2) of the Act to the circumstances of the instant case, where the petitioners were awarded the same amount of money, I do find that such an award was not a breach of the law or a violation of the petitioners’ rights as it is a legally recognized method of making awards for compensation where the right to own or occupy land is held in common or where no application for differential treatment, justifying a case for differential treatment, is made.
33. In the circumstances of this case, the petitioners have not demonstrated that they individually applied to the DC, making a case for differential treatment, to warrant their claim that the award ought to have taken into account their different circumstances.
34. Whereas it is possible that the petitioners were differently affected by the setting apart, in the absence of any evidence that they were indeed differently affected by the setting apart, and that they applied to the DC to be considered individually for award of compensation based on the prejudice individually occasioned on them, I find and hold that the mere fact that the petitioners were awarded the same amount of money as compensation cannot form a basis for determining that the award was unfair, irregular or unlawful.
35. On the methodology to be used by the DC in making the award, it is noteworthy that the Trust Land Act does not categorically state how the DC would gauge or arrive at the compensation awardable to an applicant. Be that as it may, I hasten to point out that the Act imposed an obligation on the DC to give a notice to the applicant of the amount awarded and further gives the applicant the right to challenge the award, by appealing to the Provincial Agricultural Board for the province in which the land set apart is situate. In that regard see Section 10(1) of the Act which provides as follows: -
“Any person who is dissatisfied with…the amount of the award, may within thirty days after being notified of the award appeal, in writing, through the DC to the Provincial Agricultural Board of the province in which the land to be set apart is situate…”
36. On payments, Section 10(4) provides that the DC shall be responsible for paying the compensation awarded to the persons entitled thereto. The section also provides that the payment shall be made in one single payment.
37. Noting that section 10(1) required payment of compensation to be made at once/in one single payment, I find the claim by the petitioners that they were promised further compensation to be not only unsubstantiated but also not backed by law.
38. Regarding the right to challenge the process of setting aside the land and the right to prompt payment of the compensation awarded, Section 12 of the Act provides for access to the High Court for: -
a. The determination of the legality of the setting apart; and
b. The purpose of obtaining prompt payment of any compensation awarded.
39. Concerning the alleged delay in payment, PW1 acknowledged that they moved out of the suit property after they were compensated. That being the case, despite gazettement of the setting apart having been done in 1974, the petitioners have not proved that they were removed from the suit property before payment to warrant the claim that the compensation was not done promptly.
40. Concerning the adequacy or otherwise of the award made, being the ones who desired judgment based on the claim that the amount paid to them was inadequate, the burden was on the petitioners and not the respondents, to prove that the award was inadequate. No evidence whatsoever was provided by them capable of proving that the award was inadequate. The petitioners have also not provided any evidence or suggestion of what each of them would be entitled to, based on the prejudice individually occasioned on them. In the absence of any evidence provided in support of their claim and what, their rightful entitlement over and above what was paid is, I find their claim to be unsubstantiated and not proven on a balance of probabilities.
41. In Speaker of the National Assembly vs. Njenga Karume (2008) 1 KLR 425 the Court of Appeal stated/held: -
“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
42. As pointed out herein above, the Trust Land Act has a clear procedure for redress of any grievance or grievances arising from setting apart of land under the Act. The petitioners have not offered any reasonable and plausible explanation as to why they did not challenge the compensation awarded to them using the legal framework for addressing such claims or disputes.
43. The upshot of the foregoing is that the instant suit/petition has no merit and is for dismissal. Consequently, I dismiss it with costs to the respondents.
Dated, signed and delivered virtually at Busia this 23rd day of March, 2026.
In the presence of:-
Mr. Kibet h/b for Mr Arusei for the Petitioners
Ms Oduor for the 7th Respondent
N/A for the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th Respondents
Court Assistant: Tracy