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a. Undertake a process of delimiting, demarcation and titling of Ogiek ancestral land, within which the Ogiek fully participated, within a timeframe of 1 year of notification of the reparations order;

1. According to international law, both material and moral damages had to be repaired. While reparations served multiple functions, fundamentally their objective was to restore an individual(s) to the position that he/she would have been in had he/she not suffered any harm while at the same time establishing means for deterrence to prevent recurrence of violations.
2. Whenever the court was called upon to adjudicate on reparations, it took into account not only a fair balance between the form of reparation and the nature of the violation, but also the expressed wishes of the victim. Further, the court supported a wide interpretation of the term victim such that, in an appropriate case, not only first line heirs could claim damages but also other close relatives of the direct victim. In its understanding of a victim/s of human rights violations, the court remained alive to the fact that the notion of victim was not limited to individuals and that, subject to certain conditions, groups and communities could be entitled to reparations meant to address collective harm.
3. The court recalled that the wrongful acts generating the international responsibility of the respondent state was the violation of articles 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter. All the reparation claims, therefore, had to be considered and assessed in relation to the violation of the earlier mentioned provisions of the Charter. It was against the above outlined principles that the court would consider the prayers for both pecuniary and non-pecuniary reparations.
4. The court acknowledged that compensation was an important means for effecting reparations. However, it was not enough for an applicant to show that the respondent state had violated a provision of the Charter, it was also necessary to prove the damage that the state was being required to indemnify. The applicant, therefore, bore the duty of proving the causal nexus between the violations and the damage suffered. Additionally, all material loss had to be specifically proved. In insisting on proof of material loss, however, the court was alive to the fact that victims of human rights violations could face challenges in collating evidence in support of their claims for various reasons. As such, the court proceeded on a case by case basis paying attention to the consistency and credibility of the applicant’s assertions in the light of the whole application.
5. While noting the applicant’s effort to deploy a scientific method for determining the compensation due to the Ogiek, the best way forward was to make an equitable award while being mindful of the general challenges of assessing compensation, with mathematical precision, in cases involving violation of indigenous peoples’ rights. Resultantly, the court did not consider itself bound by the community survey report submitted by the applicant.
6. Specifically, the court recalled that the claim for compensation by the applicant related to the violation of articles 14 and 21 of the Charter and specifically in relation to: the loss of non-moveable possessions from Ogiek land, both houses($59 736 172); and farm buildings ($18 029 915) the loss of livestock reliant on the land from which the Ogiek were evicted ($97 923 370); the loss of household income generated from activities on Ogiek land ($14 137 888); and the loss of revenue generated from activities using the Mau Forest due to the eviction of the Ogiek ($14 777 233). The detailed breakdown for the amounts claimed in respect of each head of loss were contained in Annex E to the applicant’s submissions on reparations, and the total claim is US$204,604,578 (Two hundred and four million, six hundred and four thousand, and five hundred seventy-eight United States Dollars).
7. Notwithstanding the limitations with the community survey report submitted by the applicant, it was incontrovertible that the actions of the respondent state resulted in a violation of the rights of the Ogiek under articles 14 and 21 of the Charter, among other Charter provisions. Given that the respondent state was responsible for the violation of the rights of the Ogiek, it followed that it bore responsibility for rectifying the consequences of its wrongful acts.
8. The court, however, acknowledged that the length of time over which the violations occurred, the number of people affected by the violations, the Ogiek way of life and the general difficulties in attaching a monetary value to the loss of resources in the Mau Forest, among other factors, made a precise and mathematically exact quantification of pecuniary loss difficult. It was for the preceding reasons, among others, that the court had to exercise its discretion in equity to determine what amounted to fair compensation to be paid to the Ogiek.
9. The currency of any monetary award issued to the applicant had to be in the currency of the respondent state since the Ogiek, for whose benefit that application was commenced, were all resident in the territory of the respondent state and all the violations happened within the territory of the respondent state.
10. The claim for compensation related to the right to property and also the right to freely dispose of wealth and natural resources. The violations at issue therein had been ongoing for a long time and they affected a particularly vulnerable section of the respondent state’s population. The award of compensation had to, therefore, and in so far as was possible, operate to ameliorate the overall condition of the Ogiek.
11. Given the parties’ contrasting submissions about the relevance of comparative international law, the court was not bound by decisions and statutes from other regional human rights systems. Nevertheless, in appropriate cases, it could draw inspiration from pronouncements emerging from other supranational human rights bodies and also distinguish the emerging principles as appropriate.
12. Given the communal nature of the violations, it was inappropriate to order that each member of the Ogiek community be paid compensation individually or that compensation be pegged to a sum due to each member of the Ogiek Community. The court was reinforced in its preceding finding given not only the communal nature of the violations but also due to the practical challenges of making individual awards for a group numbering approximately 40 000 (forty thousand).
13. Taking all factors into consideration, the court decided, in the exercise of its equitable jurisdiction, that the respondent state had to compensate the Ogiek with the sum of KES 57 850 000 (Fifty-seven million, eight hundred and fifty thousand Kenya Shillings) for the material prejudice suffered.
14. The respondent state violated the Ogiek’s rights under article 2 of the Charter by failing to recognise the Ogiek as a distinct tribe like other groups; article 8 of the Charter by making it impossible for the Ogiek to continue practicing their religious practices; article 17(2) and (3) of the Charter by evicting the Ogiek from the Mau Forest area thereby restricting them from exercising their cultural activities and practice; and article 22 of the Charter due to the manner in which the Ogiek had been evicted from the Mau Forest. Moral prejudice included both the suffering and distress caused to the direct victims and their families, and the impairment of values that were highly significant to them, as well as other changes of a non-pecuniary nature, in the living conditions of the victims or their family.
15. The court was mindful that the violations established in the application related to rights that remained central to the very existence of the Ogiek. The respondent state, therefore, was under a duty to compensate the Ogiek for the moral prejudice they suffered as a result of the violation of their rights. Taking into account the exercise of its reasonable discretion in equity the court, ordered the respondent to compensate the Ogiek with the sum of KES100 000 000 for the moral prejudice suffered.
16. In the context of indigenous peoples’ claims to land, demarcation was the formal process of identifying the actual locations and boundaries of indigenous lands or territories and physically marking those boundaries on the ground. Demarcation was important and necessary because mere abstract or legal recognition of indigenous lands, territories or resources could be practically meaningless unless the physical identity of the land was determined and marked. That served to remove uncertainty on the part of the concerned indigenous people in respect of the land to which they were entitled to exercise their rights.
17. The court took special notice of the fact that the protection of rights to land and natural resources remained fundamental for the survival of indigenous peoples. The right to property included not only the right to have access to one’s property and not to have one’s property invaded or encroached upon but also the right to undisturbed possession, use and control of such property however the owner(s) deemed fit. In international law, granting indigenous people privileges such as mere access to land was inadequate to protect their rights to land. What was required was to legally and securely recognise their collective title to the land in order to guarantee their permanent use and enjoyment of the same.
18. It was important to conceptualise and understand the distinctive dimensions in which the rights of the indigenous people to property like land could be manifested. Ownership of land for indigenous people, therefore, was not necessarily the same as other forms of state ownership such as the possession of a fee simple title. At the same time, however, ownership, even for indigenous people, entailed the right to control access to indigenous lands. It thus behooved duty bearers, like the respondent state, to attune their legal systems to accommodate indigenous peoples’ rights to property such as land.
19. Among indigenous peoples there was a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land was not centred on an individual but rather on the group and its community. Indigenous people, therefore, had, by the fact of their existence, the right to live freely in their own territory. The close ties that indigenous peoples had with the land had to be recognised and understood as the fundamental basis of their cultures, spiritual life, integrity and economic survival.
20. The Ogiek had a right to the land that they had occupied and used over the years in the Mau Forest Complex. However, in order to make the protection of the Ogiek’s right to land meaningful, there had to be more than an abstract or juridical recognition of the right to property. It was for that reason that physical delineation, demarcation and titling was important. That delineation, demarcation and titling had to be premised on, among others, the respondent state’s Community Land Act, 2016, and the Forest Conservation and Management Act, 2016, without undermining any of the protections accorded to indigenous people by the applicable international law.
21. The respondent state should undertake an exercise of delimitation, demarcation and titling in order to protect the Ogiek’s right to property, which in the case revolved around their occupation, use and enjoyment of the Mau Forest Complex and its various resources. The court did not agree with the respondent state’s submission that delimitation, demarcation and titling were inimical to the ways of life of indigenous people. While the court recognised that the Ogiek way of life, like that of many indigenous people, had not remained stagnant, the evidence before it demonstrated that they had maintained a way of life in and around the Mau Forest that distinguished them as an indigenous people. Securing their right to property, especially land, created a conducive context for guaranteeing their continued existence.
22. The respondent state had to take all necessary measures be they legislative or administrative to identify, in consultation with the Ogiek and/or their representatives, to delimit, demarcate and title Ogiek ancestral land and to grant de jure collective title to such land in order to ensure the permanent use, occupation and enjoyment, by the Ogiek, with legal certainty. Where the respondent state was unable to restitute such land for objective and reasonable grounds, it had to enter into negotiations with the Ogiek through their representatives, for purposes of either offering adequate compensation or identifying alternative lands of equal extension and quality to be given for Ogiek use and/or occupation. That process had to be undertaken and concluded within two (2) years from the date of notification of the judgment.
23. Where concessions and/or leases had been granted over Ogiek ancestral land to non-Ogiek and other private individuals or corporations, the respondent state had to commence dialogue and consultations between the Ogiek and/or their representatives and the other concerned parties for purposes of reaching an agreement on whether or not they could be allowed to continue their operations by way of lease and/or royalty and benefit sharing with the Ogiek in line with the Community Land Act. In cases where land was allocated to non-Ogiek and where it proved impossible to reach a compromise, the respondent state had to either compensate the concerned third parties and return the land to the Ogiek or agree on appropriate compensation for the Ogiek.
24. The court observed that while the respondent state had stated that the Task Force appointed in October 2018 conducted extensive consultations with the Ogiek and other communities likely to be affected by its judgment, the applicants had seriously questioned the composition of the Task Force as well as the methods it employed.
25. Although the respondent state’s report to the court of January 25, 2022, highlighted that the Task Force submitted its report to the appointing authority in October 2019, the court, however, had not been able to access any publicly available record(s) of the findings and recommendations of the Task Force. The court thus found that whatever interventions could emerge from the Task Force, the processes afoot that far had not contributed meaningfully to the implementation of its judgment on the merits.
26. The respondent state, at least from 2019, had recognised the Ogiek as a sub-group of the Kalenjin, for purposes of its Population and Housing Census. The respondent state had to take all necessary legislative, administrative and other measures to guarantee the full recognition of the Ogiek as an indigenous people of Kenya in an effective manner, including but not limited to according full recognition and protection to the Ogiek language and Ogiek cultural and religious practices within twelve (12) months of notification the judgment.
27. A judgment could constitute a sufficient form of reparation and also a sufficient measure of satisfaction. In the instant case, the court believed that its judgments, both on the merits and reparations, were a sufficient measure of satisfaction and that, therefore, it was not necessary for the respondent state to issue a public apology.
28. Having considered all the circumstances of the case, especially the other orders on reparations that the court had made, the court was convinced that it was not necessary for the respondent state to erect a monument for the commemoration of the violation of the rights of the Ogiek. Resultantly, the court dismissed the applicant’s prayer.
29. The respondent state had not, generally, opposed the establishment of mechanisms and processes which could facilitate engagement with the Ogiek especially in relation to remedying the various violations of their human rights. So far as the court had been able to discern, from the respondent state’s submissions, its major objection related to engagement with the complainants that filed the application before the Commission. In that regard, the court wished to reiterate its earlier finding that the complainants that filed that case before the Commission were not parties to the present case, the only applicant before it was the Commission.
30. The respondent state had expressed its willingness to engage the Ogiek to solve the land problem in the Mau Forest. However, apart from the establishment of the Task Force, the respondent state had not been forthcoming with information about the concrete steps that it had been taking towards the implementation of the judgment on merits. That seemed to contradict the respondent state’s own submissions in relation to its commitment to engagement towards the resolution of the differences that it had with the Ogiek.
31. It was not strange for indigenous peoples to self-organize along lines of national, regional and sometimes even international networks covering non-governmental organisations and other civil society organisations. In the case of the Ogiek, it was clear that they had several bodies that represented their interests. It was thus incumbent on the respondent state, in line with the obligation to consult in good faith, to create space for engagement with all actors that represented the interests of the Ogiek. That engagement, for the avoidance of doubt, had to follow culturally appropriate procedures and processes. In case challenges arose in identifying organisations/bodies to represent the Ogiek, in consultations and engagement with the respondent, the respondent state had to facilitate the creation of civic space, and time, where the Ogiek had to be allowed to resolve all representation-related challenges.
32. The respondent state had to take all necessary legislative, administrative or other measures to recognise, respect and protect the right of the Ogiek to be effectively consulted, in accordance with their tradition/customs, and/or with the right to give or withhold their free, prior and informed consent, with regards to development, conservation or investment projects on Ogiek ancestral land and to implement measures that would minimize the damaging effects of such projects on the survival of the Ogiek.
33. Given that the court had established that the violation of the Ogiek’s rights was partly due to the respondent state’s failure to consult the Ogiek, the court further ordered that the respondent state to ensure the full consultation and participation of the Ogiek, in accordance with their traditions/customs, in the reparation process as a whole including specifically all the steps taken in order to comply with this judgment.
34. The respondent state had to adopt legislative, administrative and/or any other measures to avoid a recurrence of the violations established by the court including, inter alia, by the restitution of the Ogiek ancestral lands, the recognition of the Ogiek as an indigenous people, and the establishment of mechanisms/frameworks for consultation and dialogue with the Ogiek on all matters affecting them.
35. The respondent state had to establish a community development fund for the Ogiek which should be a repository of all the funds ordered as reparations in that case. The community development fund should be used to support projects for the benefit of the Ogiek in the areas of health, education, food security, natural resource management and any other causes beneficial to the well-being of the Ogiek as determined from time to time by the committee managing the fund in consultation with the Ogiek. The respondent state had to therefore, take the necessary administrative, legislative and any other measures to establish the fund within twelve (12) months of the notification of the judgment.
36. The respondent state should coordinate the process of constituting a committee that would oversee the management of the fund. That committee had to have adequate representation from the Ogiek with such representatives being chosen by the Ogiek themselves.

 (1) Every person shall have the right, either individually or in association with others, to acquire and own properly, in accordance with Article 40 of the Constitution — (a) of any description; and (b) in any part of Kenya.