On January 24, 2025, the Environment and Land Court in Isiolo delivered a groundbreaking judgment in Osman & 164 Others v Northern Rangelands Trust & 8 Others ([2025] KEELC 99 (KLR)), setting a significant precedent for community land rights, public participation, and wildlife conservation in Kenya. This case addresses critical issues surrounding carbon offset projects, unregistered community land, and alleged human rights abuses, particularly in establishing community conservancies without adequate community involvement.
Background
The petitioners, representing residents of Chari and Cherab Wards in Merti Sub-County, Isiolo County, challenged the Northern Rangelands Trust (NRT) and other respondents, including the County Government of Isiolo, Kenya Wildlife Service (KWS), and individual conservancy leaders, over the establishment of Cherab and Bulesa Biliqo community conservancies. These conservancies, initiated on unregistered community land, are allegedly set up to support wildlife conservation and carbon offset projects, which have gained traction in Kenya as a means to combat climate change and generate revenue through carbon credits.
However, the petitioners alleged that the conservancies were established without their consent or public participation, violating their constitutional rights to property, cultural heritage, and a clean and healthy environment. They claimed that the NRT, in collaboration with local leaders, deployed armed rangers, leading to tension, violence, and displacement, while also restricting access to grazing and cultural sites like the Kura Disan Owwo graveyard. The petitioners further argued that the County Government and the Ministry of Lands failed to facilitate the registration of community land under the Community Land Act, 2016, leaving the land vulnerable to exploitation. These actions, they contended, disenfranchised marginalised groups, including women, youth, and persons with disabilities, and threatened their pastoralist livelihoods.
The case comes amid growing concerns in the continent about carbon offset projects. While environmentally promising, these projects have been criticised for dispossessing indigenous communities and prioritizing commercial interests over local rights. Public participation, a cornerstone of Kenya’s Constitution, has emerged as a critical issue for actualising environmental and social safeguards in carbon markets projects.
Issues
The court addressed several pivotal issues:
- Public Participation: Whether the establishment of the conservancies adhered to constitutional requirements for public participation under Articles 10 and 69 of the Constitution.
- Community Land Rights: Whether the respondents violated the petitioners’ rights to unregistered community land, as protected under Article 63 of the Constitution and the Community Land Act, 2016.
- Legality of Conservancies: Whether the Cherab and Bulesa Biliqo conservancies were operating legally, given the lack of registration and compliance with the Wildlife Conservation and Management Act, 2013.
- Armed Rangers: Whether the deployment of armed rangers by the NRT was lawful and compliant with the National Police Service Act and the Wildlife Conservation and Management Act.
- Human Rights and Benefit-Sharing: Whether the conservancies infringed on the petitioners’ social, economic, and cultural rights, including equitable access to benefits from conservation projects.
Court’s Findings
The court, presided over by Justices O.A. Angote, C.K. Yano, and C.K. Nzili, made the following key findings:
- Breach of Public Participation: The establishment of the conservancies lacked meaningful public participation, violating Articles 10 and 69 of the Constitution. The court noted that the NRT’s evidence of community engagement, including an Environmental Impact Assessment and NEMA license, was prepared after the petition was filed and did not demonstrate prior consultation.
- Illegal Operation of Conservancies: The Cherab and Bulesa Biliqo conservancies were deemed to be operating illegally due to non-compliance with the Wildlife Conservation and Management Act and the Community Land Act. The court emphasised that community conservancies must adhere to statutory registration and governance requirements.
- Failure to Register Community Land: The County Government of Isiolo and the Ministry of Lands breached their statutory duties under the Community Land Act by failing to facilitate the registration of community land in Chari and Cherab Wards, leaving it susceptible to unauthorised use.
- Unlawful Armed Rangers: The NRT’s deployment of armed rangers was declared unconstitutional and illegal, as no evidence of their registration, vetting, or compliance with the National Police Service Act was provided. This raised concerns about public safety in a region prone to firearm proliferation.
- Violation of Constitutional Rights: The respondents’ actions infringed on the petitioners’ rights to property, livelihood, and cultural heritage, particularly by alienating grazing and cultural sites without community consent.
Implications
This ruling is a landmark victory for community land rights and public participation in Kenya. It underscores the constitutional imperative of involving communities in decisions affecting their land, particularly in the context of carbon offset and conservation projects. The judgment reinforces that unregistered community land remains protected under the Constitution and must be held in trust by county governments until registered. It also highlights the need for strict regulation of armed personnel in conservation initiatives to prevent human rights abuses.
For carbon market stakeholders, the case signals that projects must prioritise transparent, inclusive processes to avoid legal challenges and ensure equitable benefit-sharing. The court’s emphasis on public participation aligns with international frameworks like the Aarhus Convention and the Rio Declaration, which Kenya is bound to uphold.
How can we help
As carbon markets expand globally, legal expertise is essential to successfully structuring, certifying, and commercialising carbon offset projects. Our firm can advise on:
- Structuring the appropriate legal entity, such as a company, trust, or special purpose vehicle (SPV), based on the project’s objectives.
- Drafting and negotiating key project agreements with landowners, technology providers, verifiers, and credit buyers.
- Securing land use rights and addressing property, tenure, and resource management issues.
- Ensuring compliance with national regulations, international carbon market standards, and voluntary certification schemes.
- Advising on tax planning, financing strategies, and risk mitigation for project developers and investors.
- Supporting the certification, verification, and monitoring processes required to issue high-quality carbon credits.
- Assisting with the commercialisation of carbon credits through structured sales, offtake agreements, and ongoing commercial arrangements.
Conclusion
The Osman & 164 Others case is a clarion call for balancing environmental conservation with community rights. It sets a robust precedent for ensuring that carbon offset projects and wildlife conservancies respect the voices and livelihoods of indigenous and pastoralist communities. As Kenya navigates the growing demand for sustainable development, this judgment serves as a reminder that public participation and legal compliance are non-negotiable pillars of equitable progress.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
