Dima Omar Hassan v Gravity Canal & 3 others [2017] KEELC 1945 (KLR)
The bottom line
#The High Court dismissed a request to stop canal construction because the case used the wrong legal procedure and lacked evidence of rights violations.
What this practically means
#Executive summary
#Key legal issues
#Correct procedural vehicle for interim relief in constitutional petitions
The application was improperly brought under the Civil Procedure Rules; conservatory orders should be sought under Rule 23 of the 2013 Practice and Procedure Rules
The court noted that under Article 22(3) the Chief Justice made the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and that applications arising from alleged infringement of constitutional rights should be made via those Rules, not the Civil Procedure Rules as done here. However, the court proceeded to consider the merits notwithstanding.
Whether a prima facie case with inherent merit was established
No - no particulars or evidence demonstrated how the Respondents breached Articles 3, 42 and 69
The court examined paragraphs 13, 14 and 15 of the Petition alleging breaches of Articles 3, 42 and 69 and found no particulars or evidence demonstrating how the Respondents breached the claimed rights. The alleged drowning and loss of livestock lacked particulars of circumstances and owners, so the court could not attribute them to the manner of construction.
Whether public participation and environmental impact assessment were carried out
On the uncontradicted Replying Affidavit evidence, the community was consulted through the Environmental and Social Impact Assessment process
The 2nd Respondent's Replying Affidavit deposed by Dinesh Degwekar annexed the ESIA final report (Exhibit DG2) showing community sensitization meetings between 15th February 2014 and 13th March 2014. The Petitioner did not contradict these averments, so the court could only assume the residents were consulted.
Legal principles established
#- An application for conservatory or interim orders in a constitutional petition must be made under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, Rule 23, not the Civil Procedure Rules
- Conservatory orders are granted on the inherent merit of a case, bearing in mind the public interest, constitutional values and proportionate magnitudes, per Gatirau Peter Munya
Court orders
#- 1.The application dated 19th October 2016 is dismissed
- 2.Each party shall bear their own costs
- Jurisdiction invoked
- Articles 22(1) and 22(3) of the Constitution; Civil Procedure Act Sections 1A, 1B, 3 and 3A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dima Omar Hassan v Gravity Canal & 3 others [2017] KEELC 1945 (KLR)", Case Analysis (2017). Petition (Malindi), application dated 19th October 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1945/eng@2017-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.