Members of the Sengwer indigenous community will not be evicted from Embobut Forest in Cherangany Hills following a court order.
A three-judge bench of appeal judges directed that the status quo remain in force, meaning those occupying the forest land should not be evicted.
Justices Hannah Okwengu, Daniel Musinga and Fatuma Sichale said the Sengwer established an arguable case on face value that warranted they be given reprieve pending the hearing of their appeal.
“We are satisfied that these are arguable and not frivolous issues,” they said in a ruling dated March 19.
“It suffices that for those who may be legally in the forest, the appeal will be rendered nugatory if they are evicted before the appeal is determined.”
The order by the judges arose out of an application by David Kiptum Yator and 23 others on behalf of the community challenging the dismissal of their case by the High Court.
On May 13, 2020, the Environment and Land Court delivered a judgment in which it dismissed two consolidated petitions that had been filed by the 24 against the state.
The petitioners had opposed forced and illegal eviction of members of the Sengwer community from the forest, contending that it is their ancestral land.
They argued that the forest is their community land. As representatives of the community, they have now moved to the Court of Appeal seeking an order to stop their eviction.
They have a memorandum of appeal in which they raise several issues, including the status of the forest; whether the community lawfully held, managed and used the forest; and whether there was a violation of the rights of the community.
Also sought for a determination is whether there was an agreement entered into by the community to vacate the forest and acquire alternative settlement in consideration of payment of Sh400,000.
The judges, in their decision, noted that it is not disputed that the community's members are hunters and gatherers who have been living mainly in the forest.
“There is a dispute as to whether members of the community are currently lawfully residing in the forest as it is alleged that money was paid out in 2015 for them to move out and that those in occupation are there illegally. These are issues that will obviously be determined at the hearing of the appeal.”