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ELCDismissedPetition dated 5th August 2016 (Nairobi, Environment and Land Court)

Abdulmajid Ramadhan & 3 others v Kenya Urban Roads Authority & 4 others [2017] KEELC 2732 (KLR)

Environment and Land Court
28 April 2017
6,200 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court allowed Kibra's road project to proceed but protected Nubian residents from eviction until a resettlement plan is in place.

What this practically means

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Executive summary

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The petitioners, members of the Nubian community residing at Lindi, Mashimoni and Kambi Aluru villages in Kibra, Nairobi, moved the court by a petition and Notice of Motion dated 5th August 2016 seeking conservatory orders to restrain the respondents from evicting them and demolishing their homes to pave way for construction of the Ngong Road-Kibera-Kungu Karumba-Lang'ata Road link. They asserted that Kibra was their ancestral land, that their constitutional rights to property, dignity, adequate housing and equality were threatened, that there was no public participation and no environmental impact assessment licence before construction commenced. The 1st and 2nd respondents maintained the road was planned in 1987, lay within a road reserve on public land, that public consultative meetings were held and that a Resettlement Action Plan was in place. The 3rd respondent contended the land was government land and that the forum for historical land injustices lay with the National Land Commission. The 4th respondent confirmed an EIA licence was issued on 14th November 2016. Applying the rule 23 test for conservatory orders, the court found no prima facie case since the nature of the Nubians' rights over the land could not be determined at the interlocutory stage; that injury alone could not justify a conservatory order absent an unlawful act; and that public interest favoured the road project. The application was dismissed, but the court directed the petitioners' inclusion in the Langata/Kibera Roads Committee and the Resettlement Action Plan, and barred eviction or demolition until the agreed resettlement plan was in place. Each party was to bear its own costs.

Key legal issues

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01

Whether the petitioners established a prima facie case of violation or threatened violation of their constitutional rights

Holding

No prima facie case was established. The court was satisfied the Nubians had lived at Kibra for decades and that houses were marked for demolition, but could not determine at the interlocutory stage the nature of the Nubians' rights over the land; absent title, the petitioners' entitlement to compensation and their property claim could not be affirmed.

Reasoning

The court acknowledged the historical presence of the Nubians in Kibra since about 1918-1919 and accepted that houses had been marked for demolition. However, the petitioners produced no title documents; their claim rested on an ancestral/communal land assertion which the court held required fuller hearing and possibly crystallization under the Community Land Act. The court found public participation had been carried out without discrimination and that the EIA licence issue belonged to another forum.

p. 9
02

Whether the petitioners would suffer injury if conservatory orders were not granted

Holding

Yes, injury was likely, but that alone is insufficient; the injury must be threatened by an unlawful act.

Reasoning

The court accepted that demolition of homes would cause the petitioners injury and suffering. However, it held that a conservatory order must prevent injury occasioned by unlawful conduct. Since the road was a public project on land whose ownership was unresolved, and the government was entitled to compulsorily acquire land for public purposes upon payment of just compensation, the threatened demolition could not be characterised as unlawful at that stage.

p. 9
03

Whether it would be in the public interest to grant the conservatory orders sought

Holding

No. The road is a public project intended for the benefit of the public, the petitioners included, and public interest outweighed the petitioners' private interests.

Reasoning

The court observed that the road link would ease traffic in Nairobi City County and that the government lawfully could compulsorily acquire land for the project. It noted that if at the hearing the petitioners were found to have rights over the land, appropriate compensation orders could then be made. Public interest in the completion of the road project therefore favoured refusal of the conservatory relief sought.

p. 9

Legal principles established

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  • An applicant for a conservatory order under rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 must demonstrate a prima facie case, that prejudice or injury will result unless the order is granted, and that it would be in the public interest to grant the order
  • Conservatory orders bear a public-law connotation and are to be granted on the inherent merit of a case bearing in mind public interest, constitutional values and proportionate magnitudes, unlike interlocutory injunctions which focus on private-party issues
  • A conservatory order cannot be granted solely on the basis of the possibility of injury occurring; the injury to be prevented must be occasioned by or threatened by an unlawful act
  • The government has a right to compulsorily acquire private property for public purposes or in the public interest provided it pays just compensation to the owner

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 5th August 2016 seeking conservatory orders
  2. 2.Order that the petitioners be included in the Langata/Kibera Roads Committee
  3. 3.Order that the petitioners be actively involved in the Resettlement Action Plan (RAP) for the Project Affected Persons (PAP)
  4. 4.Order that the 1st, 2nd and 5th respondents shall not evict or demolish the houses belonging to the petitioners until the agreed resettlement plan for the persons affected by the road project is put in place
  5. 5.Order that each party shall bear its own costs of the application
Jurisdiction invoked
Articles 22, 23, 40, 43(1)(b), 63, 27, 28 and 10 of the Constitution of Kenya, 2010, read with rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdulmajid Ramadhan & 3 others v Kenya Urban Roads Authority & 4 others [2017] KEELC 2732 (KLR)", Case Analysis (2017). Petition dated 5th August 2016 (Nairobi, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2732/eng@2017-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.