Unregistered Community Land is Not a Blank Cheque: Insights From Osman v Northern Rangelands Trust [2025] eKLR (ELC).
Illustration by Gemini.[1]
I. Introduction
On 24 January 2025, the Environment and Land Court in Isiolo
delivered a landmark judgement on community land governance, indigenous rights
protection, and climate finance mechanisms. In Osman & 164 others v
Northern Rangelands Trust & 8 others[2], a three-judge bench declared the
establishment of two community wildlife conservancies in Chari and Cherab Wards
of Merti Sub-County in Isiolo County unconstitutional and directed their
dissolution.
Carbon projects, initiatives in which landholders or
communities commit to practices that sequester or reduce greenhouse gas
emissions in exchange for tradable carbon credits[3]
have emerged as a key instrument in the global fight against climate change.[4]
Wildlife conservancies which are initiatives in which communities agree to
restrict grazing patterns over their land by setting aside a piece of land for
wildlife conservation while benefiting from the conservation by receiving
incentives are an example of carbon projects initiatives in Kenya.[5]
With Kenya positioning itself as a leader in carbon market trading, hosting
some of the largest community-based carbon projects in Africa,[6]
the intersection of conservancy governance and carbon finance therefore makes
the present case of direct relevance to climate finance actors, project
developers, and the communities on whose lands these projects operate.
This article examines key lessons from the case, focusing on
the protection of unregistered community lands, public participation
requirements where projects are to be established on community lands, the role
of national and county governments, and a critical analysis of what the
decision means for the growing industry of carbon projects in Kenya.
II. Background of
the Case
The petitioners, Abdirahim Osman and 164 others representing
residents of Chari and Cherab wards, challenged NRT, the County Government of
Isiolo, Kenya Wildlife Service (KWS), and the Ministry of Lands over the
establishment of Cherab and Biliqo wildlife conservancies on their unregistered
community land. These conservancies were allegedly set up to support wildlife
conservation and to generate soil carbon credits through managed changes to
communal grazing patterns making them carbon projects with direct implications
for climate finance.
The petitioners, who are indigenous pastoral communities,
opposed the establishment of two wildlife conservancies on their unregistered
community land, alleging that they were created without involving or obtaining
consent from the wider community. According to them, NRT had taken steps,
including mapping land, recruiting rangers, and constructing conservancy
facilities, without public participation, environmental impact assessments, or
statutory approvals.
The petitioners also alleged that armed rangers had been
deployed within the conservancies, resulting in tension, insecurity, and human
rights abuses.
NRT opposed the petition, contending that the suit land is
unregistered community land jointly and severally owned by the petitioners and
other members of the community and that, consequently, the rights of the
petitioners to the land rank equally with those of other community members who
wished to adopt conservancies as a legitimate land use for the collective
benefit of the community. NRT also claimed that the conservancies were
Community-Based Organizations and that no members of the community, including
the petitioners, were excluded from participation.
Court's Findings
The Court made four primary findings. First, it held that the
customary land rights and interests of the petitioners are constitutionally
guaranteed, whether or not the land is registered as community land. Second,
the Court determined that the establishment of the conservancies lacked
meaningful public participation, rendering their operations illegal. Third, the
County Government of Isiolo and the Ministry of Lands were found to have
breached their statutory duties under the Community Land Act[7] by
failing to facilitate the registration of the unregistered community land in
Chari and Cherab Wards. Finally, the Court declared that NRT's deployment of
armed rangers was unconstitutional and illegal.
III. Lessons from
the Case
a. Unregistered
Community Land Is Not Unprotected Land
The most important lesson was the court's rejection of the
proposition that registration is a prerequisite for the protection of community
land. The court asserted that customary land rights and interests of the
petitioners are constitutionally guaranteed, whether or not the land is
registered as community land.
The respondents had argued that because the community land in
Chari and Cherab had not been formally registered under the Community Land Act[8],
the petitioners' property rights were not sufficiently crystallized to found a
constitutional claim and that the rights of the petitioners to the land ranked
equally with those of the third to sixth respondents and other community
members who wished to adopt conservancies as a legitimate land use for the
collective benefit of the community.
The court rejected this argument, emphasizing that the
petitioners' rights to enjoy the accrued benefits of community lands are
anchored on both the constitution and the Community Land Act and cannot be
wished away by the respondents.
The protection conferred to community land by article 63 of
the Constitution[9] is not contingent on administrative
completion of a registration process that the state has been slow to
facilitate.
This precedent is of immense significance because it forbids
conservation actors or carbon project developers from relying on the
vulnerability of unregistered community lands as a condition that structurally
enables them to override the land rights of communities and establish projects
without being held accountable. The local communities residing on the land must
be involved, and their approval sought even where the land is unregistered. The
absence of a title document does not mean that third parties also have the
rights over the land on the same rank as communities occupying the land.
b. Public
Participation Must be Genuine, Inclusive, and Prior
The court firmly held that public participation under
articles 10 and 69(1)(d) of the Constitution[10] is not a mere formality or cosmetic
exercise to satisfy legal requirements. Instead, it must be genuine,
meaningful, quantitative, qualitative, purposeful, and conducted in a manner
that enables effective engagement.
The judgment outlined essential elements for valid
participation: reasonable and adequate notice; clear explanation of the subject
matter; prior sensitization to build community capacity for informed input;
inclusive representation of all affected groups; and full transparency
throughout the process. In this case, respondents failed to demonstrate any
meaningful participation regarding the nature, scope, benefits, or impacts of
establishing and operating the Cherab and Biliqo-Bulesa conservancies in Chari
and Cherab Wards. No approvals were obtained from relevant authorities for NRT
to set up conservancies, and no environmental or social impact assessments
preceded the activities.
Drawing on section 36 of the Community Land Act, 2016,[11] the court emphasized that
investments on community land require a free, prior, open, and consultative
process. This includes provisions for environmental, social, cultural, and
economic impact assessments, broad stakeholder consultations, and explicit community
involvement.
Critically, no agreement is valid unless approved by at least
two-thirds of adult community members at a specially convened assembly. The
court observed that NRT's claimed engagement relied heavily on elected
conservancy leaders and a small group of local elites, systematically excluding
women, youth, and other marginalized voices. Such selective consultation, which
entails effectively co-opting compliant leadership, does not meet the
constitutional standard. Genuine participation demands broad, inclusive involvement
of the entire community, not representation by a narrow segment.
The judgment also clarified important nuances; that written
submissions may substitute for oral hearings where appropriate; that claims of
inadequate participation are assessed on a case-by-case basis; and that
inadequate public participation does not automatically invalidate the entire
process.
Overall, the Osman decision reinforces that public
participation is a cornerstone of community land governance. For carbon project
developers and investors, it serves as a clear warning; proceeding without
robust, inclusive, and prior consultation risks rendering initiatives unlawful.
On the other hand, communities gain a strengthened basis to demand
accountability and halt operations that violate their constitutional rights.
c. It is the Duty of County Governments and the Ministry of
Lands to Facilitate Registration of Community Lands
A recurring theme in the judgment is the failure of the
County Government of Isiolo and the Ministry of Lands to facilitate the
registration of community land in Chari and Cherab Wards despite the clear
statutory mandate to do so under the Community Land Act. The court ordered both
the County Government of Isiolo and the Ministry of Land to facilitate
registration.
Community land rights cannot be effectively protected if the
institutions responsible for facilitating registration remain spiritless. When
the state delays its registration mandate, it creates the very vulnerabilities
that private actors exploit. There is, in this sense, a direct causal link
between administrative failure, constitutional violations, and exploitation by
NRT.
d. Carbon
Projects on Community Lands Demand Heightened Scrutiny
Although carbon credits were not the petitioners' focus, the
conservancies' linkage to Northern Rangelands Trust and spanning thousands of
acres of land and generating soil carbon credits via grazing changes casts a
shadow over how carbon project developers are operating on community lands in
Kenya.
Carbon project developers must comply with registration
requirements, ensure genuine participation and transparency of their projects
lest they risk violating article 10 principles of participation of the people,
social justice, transparency, inclusiveness and transparency, and article 63 of
the constitution on governance of community land, provisions whose breach, as
this case demonstrates, can render an entire project unlawful.[12]
Furthermore, contracts expected to last for long periods of
up to 30, 50 years or even a century[13]
with grazing restrictions, signed in contexts marked by illiteracy and unequal
bargaining power,[14] raise serious questions about
whether there is actual Free, Prior and Informed Consent. The legal basis for
FPIC in this context is muti-layered grounded in section 36 of the Community
Land Act which provides for an agreement relating to investment in community
land made after a free, open consultative process,[15]
and in articles 10 and 63 of the Constitution.[16]
The lessons for climate finance are that carbon projects in
Kenya cannot thrive on shaky agreements. They must comply with the requirement
of Free, Prior and Informed Consent and operate transparently. There is also a
need for policy frameworks governing the involvement of local communities to
prevent what scholars have termed 'green grabbing' which is the appropriation
of land and resources under the banner of environmental objectives which is of
growing significance.[17] Failure could discredit such
projects in Kenya, slow down the country's climate ambitions, and expose
communities to exploitation by project developers.
IV. A Critical
Analysis of the Judgment
While the Osman judgment represents a significant affirmation
of community rights, a rigorous legal analysis demands engagement with its
potential weaknesses and the legitimate concerns it raises.
First, the judgment's treatment of unregistered community
land while constitutionally sound creates a degree of legal uncertainty for
investors and conservation actors who operate in a landscape where the state
has, as the court itself acknowledged, been chronically slow to facilitate
registration. If rights subsist independently of registration, but the
boundaries and membership of the beneficiary community remain undefined, it
becomes structurally difficult to identify the consent-giving body with sufficient
precision. NRT's argument that all community members including those who
supported the conservancies held equal rights to the land was not without
force; the judgment does not fully resolve how majority and minority community
factions are to reconcile competing land use preferences on a single
unregistered tract.
Secondly, is a tension within the judgment's public
participation analysis. On one hand, the court insists on broad, inclusive
participation extending to women, youth, and marginalized groups. On the other
hand, it acknowledges that written submissions may substitute for oral hearings
and that inadequate participation does not automatically invalidate a process.
These qualifications, while sensible in the abstract, create interpretive
uncertainty. Future litigants and project developers will have to navigate this
ambiguity without clear guidance on what minimum threshold of participation
suffices.
Finally, it should be acknowledged that the court's
application of the principles to carbon projects as such is an extrapolation.
The ratio decidendi of Osman concerns the establishment of conservancies and
the violation of community land rights; the judgment does not explicitly
adjudicate the legality of carbon markets or carbon credit agreements. Analysts
and practitioners who apply its principles to carbon finance as this article
does are making a valid and important extension of the reasoning, but it should
be characterized as such rather than as a direct holding of the court.
V. Conclusion
The Osman judgment is of immense value to Kenya's nascent
jurisprudence climate finance especially with regards to carbon projects
established on community lands. While the case did not directly adjudicate on
carbon projects, the principles it establishes regarding unregistered community
land, public participation, and state duty are directly applicable by extension
to carbon project developers and investors operating on community lands in
Kenya. It reaffirms that unregistered community land is not a blank cheque for
carbon entrepreneurs, that customary land rights subsist independently of
registration, and that communities must be meaningfully involved when making
decisions affecting their land. Additionally, county governments and the
Ministry of Land bear an active duty to facilitate community land registration.
As carbon markets expand rapidly across the African
continent, and Kenya having positioned itself as a leading destination for
voluntary carbon market projects, the judgment lands at a significant moment.
The NRT case is not merely a judgment but a statement about the constitutional
frameworks and standards that must be observed when establishing carbon
projects or any project on community land, whether registered or unregistered.
At the same time, several critical concerns underscore the judgment, while welcome,
it leaves open questions about the management of competing intra-community
interests, and the precise threshold for public participation. These are
questions that the courts need to address in subsequent judgments.
[1] ."Generate
an image that matches this article…" prompt. Gemini, version 3 Flash,
Google, 18 Apr. 2026, gemini.google.com/.
[2]Osman & 164 others v Northern Rangelands Trust
& 8 others (Petition E006 of
2021) [2025] KLR (ELC).
[3]
Williams JR, Mooney S and Peterson JM,`What is the carbon market: Is there a
final answer?’ (2009) 64(1) Journal of Soil and Water Conservation.
[4]
Martin Otundo Richard,`Examining the Inefficiencies in Carbon Trading Markets:
A Focus on Market Failures in Kenya’s Emerging Carbon Economy’ [2024] 1(1) International
Journal of Law, Environment and Natural Resources.
[5]
`Kenyan Communities Lead the Way in Conservation that Works for People and
Nature’ (The Nature Conservancy, 21 October 2025) <Conservation for People
& Nature: Kenyan Communities Lead the Way> accessed 6 April 2026.
[6]
`Greening Kenya’s Economy: The Role of Carbon Markets, Legislation, and
Corporate Responsibility’ (BDO East Africa) <Greening Kenya's Economy: The Role of
Carbon Markets, Legislation, and Corporate Responsibility - BDO> accessed 6 April 2026.
[7]
Ommunity Land Act 2016.
[8]
Community Land Act 2016.
[9]Constitution of Kenya 2010, art 63.
[10]Constitution of Kenya 2010, arts 10 and 69(1)(d).
[11]Community Land Act (No 27 of 2016) (Kenya), s 36.
[12]
Community Land Act 2016, s 36; Constitution of Kenya 2010, art 63; see also
Survival International, Blood Carbon:how a carbon offset scheme makes
millions from Indigenous land in Northern Kenya (Report, 2023).
[13]
Neville Ng’ambwa,`Carbon Credits Are Reshaping Land Rights in Kenya: Critics
Warn’ (Big 3 Africa , 2 February 2026) <Carbon Credits Are Reshaping Land Rights
in Kenya, Critics Warn - Big3Africa.org Kenya’s Carbon Credit Push Faces Green
Extraction Claims>
accessed 6 February 2026.
[14]See, eg, Survival International, Carbon Cowboys:
How the Carbon Market Fails Indigenous Peoples (Report, 2023); Forest
Peoples Programme, Free, Prior and Informed Consent and the Carbon Market
(Report, 2022).
[15]
Community Land Act 2016, s 36.
[16]Constitution of Kenya 2010, arts 10 and 63.
[17]James Fairhead, Melissa Leach and Ian Scoones, 'Green
Grabbing: A New Appropriation of Nature?' (2012) 39(2) Journal of Peasant
Studies 237.
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