Many Mau Forest evictees will not be compensated after the government said the title deeds they presented are fake or improperly acquired.
Attorney General Paul Kihara on Thursday backed the Environment ministry, which said title deeds presented by some affected persons for payout were illegally acquired.
This means that only persons with regularly issued titles will be compensated — those people with lands outside the gazetted blocks in the water tower.
It will be up to the court to examine the process of acquisition and registration of impugned titles and make a determination as to their legality or otherwise.
Solicitor General Kennedy Ogeto, on behalf of AG Kihara, told MPs on Thursday that instructions from the Lands ministry showed that many titles were fake.
He cited reports of task forces that recommended the illegally acquired titles should be cancelled as ‘they constitute an unlawful encroachment into the Maasai Mau Forest reserve’.
“Since the matter is before the court, it will be up to the court to examine the process of acquisition and registration of the impugned titles and make a determination as to their legality or otherwise,” the AG said.
He was responding to an enquiry by the National Assembly’s Environment Committee chaired by Maara MP Kareke Mbiuki who reacted to an outcry by residents and Rift Valley politicians about the ‘inhumane’ evictions.
Lands CAS Gideon Mung’aro was sent away after committee MPs insisted on getting responses directly from Cabinet Secretary Farida Karoney.
The lawmakers raised concerns that the evictions rendered homeless people with legitimate title deeds — largely for parcels outside the areas targeted in the operation evict illegals and restore the Mau water tower.
The Solicitor General maintained that should the court find that the title deeds were obtained illegally, those holding the titles cannot claim any rights over the forest land or compensation.
Ogeto said they have identified three categories of claimants — people who purport to hold titles, those with sale agreements and letters of allotment and people without documents.
Since Mau Forest is gazetted forest, there is a presumption that all Kenyans are aware of the fact that it is a forest. Such persons not innocent purchasers.
In the first category, the government says he documents are fraudulent, illegal or unprocedurally acquired — and, therefore, null and void.
Ogeto argued that those parcels are not protected by Article 40 of the Constitution, while those claims arising from sale agreements have been deemed illegal transactions between private individuals.
“It follows that since the Mau Forest is gazetted forest, there is a presumption that all Kenyans are aware of the fact that it is a forest,” the Solicitor General said.
“The position taken by the government is that such persons are not innocent purchasers. The onus is on them to prove it in court.”
He said the government’s position is that those with no papers have no protection under the law “as they are mere trespassers on public land which is an offence in law”.
Kipkelion West MP Hillary Koskey, however, told the AG’s team that some areas affected by the eviction are not part of the 21 gazetted forest blocks.
He dismissed task force reports saying the groups cannot purport to declare title deeds illegal.
The MP asked the team from the Attorney General’s office to consider going back to the affected areas to ascertain if there are cases of encroachment as claimed.
His Mathioya counterpart Peter Kimani questioned why the government executed the evictions before it could ascertain the authenticity of the title deeds.
Njoro MP Charity Kathambi said it was the same government that issued the title deeds.
She accused the AG of failing to accordingly advise the government on the evictions. “We are concerned the state has ignored 96 per cent of the forest where the encroachment is worse,” she said.
The lawmakers asked the AG’s office to review the status of other water towers with particular reference to the Aberdares where it is reported that an investor set up a tea factory inside the forest.
Mau evictions are the subject of a heated debate after 41 MPs from the region threatened to sue President Uhuru Kenyata over ‘illegal’ evictions.